ALMEIDA-BARRETO, MARCO
v.
UNITED STATES
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Marco Almeida-Barreto filed a motion under 28 U.S.C. § 2255 to vacate his conviction for possession of firearms by a prohibited person. The district court denied the motion as untimely and on the merits, refusing to issue a certificate of appealability.
The motion is denied because it is untimely and does not qualify for the actual innocence exception. The petitioner raised only legal objections regarding legal sufficiency, not factual innocence. No certificate of appealability shall issue.
[1] A petition for relief under 28 U.S.C. …
[2] Actual innocence, as an exception to the timeliness requirement for a § 2255 petition, requires proof of factual innocence, not merely legal insufficiency of the convicti…
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Join FLexlaw to unlock all legal intelligence“Legal sufficiency is not actual innocence; actual innocence means factual innocence.”
Establishes the critical distinction between legal and factual grounds, explaining why the petitioner's legal arguments do not qualify for the actual innocence exception to the one-year filing deadline.
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Join FLexlaw to unlock all legal intelligenceAlmeida-Barreto pleaded guilty to possession of firearms by a prohibited person and was sentenced to 120 months' imprisonment. He appealed his convict…
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THIS CAUSE is before the Court on the Movant's Motion to Vacate under 28 U.S.C. § 2255 [DE 1]. The Court has considered the Motion [DE 1], the Government's Response [DE 5], the Movant's Reply [DE 6], and the court file. For the reasons discussed below, the Motion is denied.
The Movant pled guilty to possession of firearms by a prohibited person. 19-CR-60383 at DE 38. The Court sentenced the Movant to 120 months' imprisonment. Id. at DE 75. The Movant filed a notice of appeal, but his conviction was affirmed and his conviction became final on January 4, 2023. Id. at DE 94.
Section 2255 petitions must be filed within one year of the date upon which a judgment of conviction becomes final. 28 U.S.C. § 2255(f). Thus, the Petitioner had until January 4, 2024, to file a 2255 petition. This Petition was filed on February 5, 2024, and is thus untimely.
Although the Supreme Court has held that an untimely petition may be considered if actual innocence is proven, the Court can discern no basis for this exception in the Petition. Instead, the Petition focuses on legal objections—arguing legal sufficiency—pertaining to the Petitioner's conviction. Legal sufficiency is not actual innocence; actual innocence means factual innocence.
Bousley v. U.S., 523 U.S. 614, 623 (1998). The Petitioner has therefore provided no basis for this Court to consider his untimely Petition.
Certificate of Appealability
A petitioner seeking to appeal a district court's final order denying a Section 2255 motion to vacate has no absolute entitlement to appeal and must obtain a certificate of appealability. See 28 U.S.C. § 2253(c)(1); Harbison v. Bell, 556 U.S. 180, 183 (2009). Upon consideration of the record, a certificate of appealability shall not issue.
Accordingly, it is ORDERED AND ADJUDGED that:
1. The Movant's Motion [DE 1] is DENIED; [fn 1] 2. Final judgment is entered in favor of Respondent; 3. No Certificate of Appealability shall issue; 4. Any pending motions are DENIED as moot; and 5. The Clerk of Court shall CLOSE the case.
DONE AND ORDERED in Chambers at West Palm Beach, Florida, this 15th day of August, 2024.
ROBIN L. ROSENBERG UNITED STATES DISTRICT JUDGE
cc: Counsel of Record
Marco Ian Almeida-Barreto 25870-104 Jesup FCI Federal Correctional Institution Inmate Mail/Parcels 2680 301 South Jesup, GA 31599 PRO SE
[fn 1]: The Petition also lacks substantive merit for the reasons set forth in the Response.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Bousley v. United States, 523 U.S. 614 (U.S. 1998)
- Harbison v. Bell, 556 U.S. 180 (U.S. 2009)