* After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### January 19, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. UNDRA D. LEE, Defendant-Appellant. No. 05-3071 (D.C. Nos. 04-CV-3389-JTM and 93-CR-10043-JTM) (D. Kan.)

ORDER AND JUDGMENT *

Before KELLY , McKAY , and McCONNELL , Circuit Judges.

Undra D. Lee appeals the district court’s denial of his pro se motion to vacate, set aside, or correct sentence, filed pursu ant to 28 U.S.C. § 2255. The district court determined that Mr. Lee’s motion was untimely because it was filed outside the one-year period of limitation contained in the Antiterrorism and1 But see Dodd v. United States , __ U.S. __, 125 S.Ct. 2478, 2482 (2005)

(holding that the date from which the limitation pe riod begins to run under § 2255(3) is the date that the Court initially reco gnizes the right asserted in an applicant’s § 2255 motion, not the date on which the right is made retroactively applicable). -2- Effective Death Penalty Act of 1996 (AEDPA), 28 U.S .C. § 2255(1)-(4). Mr. Lee does not dispute that his judgment of conviction be came final in 1993. Because his conviction became final before the effective date of AEDPA, Mr. Lee had until April 24, 1997, to file for § 2255 relief. See Serrano v. Williams , 383 F.3d 1181, 1183 (10th Cir. 2004) (noting, in similar context of remedies available to state prisoners, 28 U.S.C. § 2254, that the end of AEDPA’s statutory grace period was April 24, 1997). Indeed, the district court wa s even more charitable, holding that under § 2255(3) Mr. Lee arguably had until May 18, 1999, to file for § 2255 relief, which date was one year from the date that Bousley v. United States , 523 U.S. 614, 621 (1998), made Bailey v. United States , 516 U.S. 137, 150 (1995), retroactively applicable to cases on collateral app eal. 1 Thus, since Mr. Lee did not file his § 2255 motion until Octobe r 14, 2004, “nearly eleven years after the date of his conviction, eight years after Bailey , and some six years after the decision in Bousley ,” R., Doc. 39 at 2, the district court held the mo tion untimely and denied relief. We previously granted Mr. Lee a certificate of appealability. See 28 U.S.C. § 2253(c). Exercising jurisdiction under28 U.S.C. §§ 1291 and 2253(a), we affirm.-3-

On October 29, 1993, following the entry of a guilty plea, Mr. Lee was sentenced to five years’ imprisonment and three yea rs’ supervised release for using and carrying a firearm during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1). Mr. Lee did not take a dire ct appeal. In October 2004, he filed the present § 2255 motion, asserting that his conviction should be vacated because the Government did not demonstrate that he actively employed the firearm at issue, as is required to sustain a convi ction under § 924(c)(1). Bailey, 516 U.S. at 150. Instead, argued Mr. Lee, “the adm itted facts indicate that the gun merely lay inert under the bed mattress,” R., D oc. 38 at 8. Construing Mr. Lee’s § 2255 motion liberally, see Cummings v. Evans , 161 F.3d 610, 613 (10th Cir. 1998), the motion also alluded to actual innocence. See Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 1998) (suggesting thatactual innocence of a defendant may be grounds for tolling AEDPA’s similar one-year statute of limitations for state prisoners, 28 U.S.C. § 2244(d )(1)). The district court found Mr. Lee’s § 2255 motion un timely under AEDPA’s one-year period of limitation and denied relief wit hout reaching the merits of his claims. Mr. Lee filed a motion for reconsideration , contending that his plea was not knowing and voluntary because he was misinforme d by the district court as to the essential elements of the crime charged. The d istrict court denied Mr. Lee’s motion for reconsideration.2 Having reviewed Mr. Lee’s timely submission in resp onse to our show

cause order, we conclude that when he filed the § 2 255 motion he was in custody under the conviction and sentence challenged in the motion. See United States v. Hernandez , 94 F.3d 606, 613 (10th Cir. 1996) (observing that§ 2255 relief is available only to one who, when he files his § 2255 motion, is in custody under the conviction and sentence he seeks to vacate, setaside, or correct). -4- This court issued a certificate of appealibility to consider whether the district court erred in denying Mr. Lee’s § 2255 mo tion on timeliness grounds without examining whether he was entitled to equita ble tolling pursuant to his claims of actual innocence. 2 Because this issue requires us to address a quest ion of law, our review of the district court’s denial o f § 2255 relief is de novo. See Gibson v. Klinger , 232 F.3d 799, 803 (10th Cir. 2000). “AEDPA’s one -year statute of limitations is subject to equitable toll ing but only ‘in rare and exceptional circumstances.’” Id. at 808 (quoting Davis v. Johnson , 158 F.3d 806, 811 (5th Cir. 1998)). Actual innocence, for exampl e, constitutes a rare and exceptional circumstance. See id. Notwithstanding, equitable tolling “is only available when an inmate diligently pursues his cla ims and demonstrates that the failure to timely file was caused by extraordinary circumstances beyond his control.” Marsh v. Soares , 223 F.3d 1217, 1220 (10th Cir. 2000) (emphasis added). Mr. Lee’s underlying challenge to his conviction is based on the Supreme Court’s opinion in Bailey , which was issued on December 6, 1995. Mr. Lee,-5-

however, did not file his § 2255 motion until Octob er 14, 2004. Thus, Mr. Lee has not diligently pursued his Bailey claim, and he has provided no explanation for his failure to do so. Further, in demonstratin g that his failure to comply with AEDPA’s one-year statute of limitations was caused by extraordinary circumstances beyond his control, Mr. Lee must not only prove actual innocence as to the gun charge to which he pleaded guilty, he must also prove actual innocence of the three drug counts for which he was indicted. See Bousley , 523 U.S. at 624 (“In cases where the Government has forgone more serious charges in the course of plea bargaining, petitione r’s showing of actual innocence must also extend to those charges.”). Mr. Lee make s no such showing. We conclude that the district court properly denied Mr. Lee’s § 2255 motion as untimely, and we AFFIRM the judgment of the district court. Mr. Lee’s motion for appointment of counsel is DENI ED. Entered for the Court

Monroe G. McKay Circuit Judge