FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 21, 2010

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-16141

Non-Argument Calendar

________________________

D. C. Docket Nos. 08-00195-CV-5-RS

06-00052-CR-5-0

JAYCEE WILLIAMS, JR.,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

________________________

Appeal from the United States District Court

for the Northern District of Florida

_________________________

(June 21, 2010)

Before BIRCH, CARNES and MARTIN, Circuit Judges.

PER CURIAM:
Federal prisoner Jaycee Williams, Jr. appeals the denial of his amended 28

U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. Williams

pleaded guilty to possession with intent to distribute more than 50 grams of crack

cocaine. Because he had a prior state felony drug conviction, he received a

mandatory enhanced sentence of twenty years in prison under 21 U.S.C. §§

841(b)(1)(A) and 851. Williams filed a timely § 2255 motion on an ineffective

assistance of counsel claim.

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In August 2009, nearly two years after the judgment of conviction had

become final, Williams moved to amend his § 2255 motion to add a claim that the

district court lacked jurisdiction to impose the enhanced sentence because the

government’s notice of enhancement, which cited the wrong statutory provision

and gave an incorrect date for the prior conviction, did not strictly comply with the

requirements of 21 U.S.C. § 851(a)(1). The district court concluded that Williams’

amendment was untimely, because the new claim involved a different ground of

relief and different facts and therefore did not relate back to the original filing. See

Fed. R. Civ. P. 15(c)(1)(B). The court denied the § 2255 motion, but then granted

a COA as to whether it had a “[l]ack of jurisdiction to impose an enhanced

 Although the district court’s COA also included the ineffective counsel claim, Williams 1

does not address that issue in his brief and therefore he has abandoned it. See Atkins v.

Singletary, 965 F.2d 952, 955 n.1 (11th Cir. 1992).

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sentence pursuant to 21 U.S.C. § 841(b)(1)(A) because of the defect in the

Government’s notice of enhancement.”

In a § 2255 proceeding, our appellate review is limited to the issues

specified in the COA. Murray v. United States, 145 F.3d 1249, 1251 (11th Cir.

1998). When the district court dismisses a habeas petition as time-barred, it is

inappropriate for the court to grant a COA on the merits of the underlying claim.

See Ross v. Moore, 246 F.3d 1299, 1300 (11th Cir. 2001) (per curiam) (vacating

COA on state prisoner’s 28 U.S.C. § 2254 petition). However, threshold

procedural issues that must be resolved before we can reach the underlying claim

are presumed to be encompassed within the COA. McCoy v. United States, 266

F.3d 1245, 1248 n.2 (11th Cir. 2001). Thus, we consider whether Williams’

motion on the enhancement issue was timely.

We review de novo a district court’s conclusion that a § 2255 motion is

time-barred. Jones v. United States, 304 F.3d 1035, 1037 (11th Cir. 2002) (per

curiam). We review the district court’s application of Rule 15(c) for abuse of

discretion. Davenport v. United States, 217 F.3d 1341, 1343 n.4 (11th Cir. 2000).

28 U.S.C. § 2255(f) imposes a one-year period of limitation on § 2255

motions. The clock runs from the date on which the judgment of conviction

becomes final, which is the date on which the time for filing a petition for certiorari

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expires. Id. § 2255(f)(1); see Clay v. United States, 537 U.S. 522, 123 S.Ct. 1072,

1075 (2003); Close v. United States, 336 F.3d 1283, 1284–85 (11th Cir. 2003). In

this case, the limitations period ran out in September 2008. Williams’ challenge to

the sentence enhancement, first asserted in August 2009, does not relate back to the

original § 2255 motion that he timely filed in June 2008, because it asserted “a new

ground for relief supported by facts that differ in both time and type from those the

original pleading set forth.” See Mayle v. Felix, 545 U.S. 644, 650, 125 S.Ct.

2562, 2566 (2005). Williams’ original motion complained that his counsel had

been ineffective in negotiating with the government for a substantial-assistance

recommendation at sentencing. The current claim concerns whether Williams had

proper notice of the government’s intent to seek the enhancement, and of the

possible statutory penalty, at the time he decided to plead guilty. Because these

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two claims are not “tied to a common nucleus of operative facts,” see Mayle, 545

U.S. at 650, 125 S. Ct. at 2566, the district court correctly concluded that the new

claim did not relate back to the original filing. See Mayle, 545 U.S. at 662, 125

 Because we conclude that Williams’ motion was not timely, we do not decide whether

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the government’s notice of enhancement was in “strict compliance” with the requirements of 21

U.S.C. § 851(a)(1). See United States v. Rutherford, 175 F.3d 899, 904 (11th Cir. 1999). We

note that despite the mistakes in the government’s information, Williams signed a plea

agreement that cited the correct statute and correctly described the enhanced penalty as twenty

years, and he then indicated both at the plea colloquy and at sentencing that he understood he

was facing an enhanced penalty of twenty years. Furthermore, because the government’s

information gave the correct case number for the state conviction, Williams did not lack actual

notice as to which prior conviction the government intended to use.

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S.Ct. at 2573–74 (“If claims asserted after the one-year period could be revived

simply because they relate to the same trial, conviction, or sentence as a timely

filed claim, [the] limitation period would have slim significance.”).

The one-year limit applies even though Williams’ new claim is an attack on

the district court’s jurisdiction. See United States v. Ramirez, 501 F.3d 1237, 1239

(11th Cir. 2007) (per curiam) (§ 851(a)(1) notice requirement is jurisdictional).

Williams argues that the limit does not apply because, under Fed. R. Crim. P.

12(b)(3)(B), a claim that an indictment or information fails to invoke the court’s

jurisdiction may be heard “at any time while the case is pending.” This is wrong.

The habeas statute specifically includes jurisdictional challenges in its enumeration

of grounds for relief from sentence that may be asserted under § 2255. See 18

U.S.C. § 2255(a) (“A [federal] prisoner in custody . . . claiming the right to be

released upon the ground that . . . the court was without jurisdiction to impose such

sentence . . . may move the court [for relief].”). Nothing in the statutory language

suggests that jurisdictional challenges are exempt from the one-year limitations

period that applies to “a motion under this section.” Id. § 2255(f). See BarretoBarreto v. United States, 551 F.3d 95, 100 (1st Cir. 2008) (holding that

jurisdictional claims under § 2255 are subject to one-year limit). Because

Williams is in custody and is collaterally attacking his federal sentence, § 2255 is

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the proper vehicle for that attack and Rule 12(b)(3)(B) cannot be used to

circumvent its procedural requirements. See United States v. Patton, 309 F.3d

1093, 1094 (8th Cir. 2002) (per curiam); cf. Gonzalez v. Sec’y for the Dep’t of

Corr., 366 F.3d 1253, 1277 & n.11 (11th Cir. 2004) (en banc) (motion for relief

from judgment under Fed. R. Civ. P. 60(b) cannot be used to circumvent restriction

on second or successive habeas petitions, and same reasoning “appl[ies] fully to

any independent action designed to set aside or reopen a judgment denying federal

habeas relief”). Furthermore, although this Court has not addressed the issue in a

published opinion, other circuits have held that Rule 12(b)(3)(B) does not allow a

jurisdictional challenge at the habeas stage because the case is no longer “pending”

within the meaning of that rule once direct appeals have ended. See BarretoBarreto, 551 F.3d at 100; United States v. Valadez-Camarena, 402 F.3d 1259,

1260–61 (10th Cir. 2005); United States v. Wolff, 241 F.3d 1055, 1056–57 (8th

Cir. 2001) (per curiam). The district court did not err in denying Williams’ motion

as untimely.

AFFIRMED.

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