United States v. Isaac Kimber

MEMORANDUM

Isaac Kimber appeals the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. The district court denied Kimber’s motion as untimely, ruling that the one-year statute of limitations for § 2255 motions was not tolled because Kimber could not establish that he was actually innocent of possessing firearms in furtherance of a drug trafficking conspiracy. We have jurisdiction under 28 U.S.C. §§ 2253 and 2255, and we affirm the district court’s order.

“We review de novo a district court’s decision to deny a motion under 28 U.S.C. § 2255 .” United States v. Chacon-Palmares, 208 F.3d 1157, 1158 (9th Cir.2000). A one-year statute of limitations applies to § 2255 motions from “the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255 (f)(1). The district court imposed judgment on Kimber in May 2005, and he did not file his § 2255 motion until July 2011, over six years later.

A claim of actual innocence is a basis for equitable tolling of the statute of limita tions. Lee v. Lampert, 653 F.3d 929, 937 (9th Cir.2011) (en banc). Kimber, however, cannot toll the statute of limitations based on his alleged actual…