United States v. Rojas-Alvarado, 707 F. App'x 525

Background

Rojas-Alvarado pleaded guilty pursuant to a written plea agreement (which included an appellate waiver) to two drug counts involving 500+ grams of methamphetamine and one § 924(c) firearm count; he was sentenced to 180 months (drug counts) plus a consecutive 60 months (firearm).
On direct appeal the government moved to enforce the appellate waiver; the Tenth Circuit granted the motion and dismissed the appeal, noting any ineffective-assistance claim should be raised in a § 2255 collateral proceeding.
Nearly three years after his conviction became final, Rojas-Alvarado filed a pro se § 2255 motion asserting factual innocence of the § 924(c) firearm count and ineffective assistance of counsel inducing his plea.
The district court dismissed the § 2255 motion as untimely under the one-year limitations period in 28 U.S.C. § 2255(f)(1), rejecting Rojas-Alvarado’s argument that the limitations period should start later under § 2255(f)(4).
The district court also rejected equitable tolling based on actual innocence, finding Rojas-Alvarado presented no new, reliable evidence sufficient under Schlup v. Delo to show it is more likely than not that no reasonable juror would convict.
The district court denied a certificate of appealability (COA); Rojas-Alvarado moved to this court for a COA to appeal that denial.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rojas-Alvarado’s § 2255 was timely	Rojas-Alvarado contends he only recently discovered the factual predicate for attacking the § 924(c) conviction, so the § 2255 limitations period should run from that discovery	Government/district court: limitations period began when conviction became final; facts were known at plea, so § 2255(f)(4) does not apply	Court held motion was untimely; one-year period ran from finality and § 2255(f)(4) did not apply
Whether equitable tolling applies based on actual innocence	Rojas-Alvarado argues factual innocence of the firearm count warrants equitable tolling	Government/district court: no new reliable evidence of actual innocence; Schlup gateway not satisfied	Court held actual-innocence equitable tolling fails—no new reliable evidence showing likely no reasonable juror would convict
Whether jurists could debate denial of COA	Rojas-Alvarado seeks COA to appeal the untimeliness and actual-innocence rulings	Government argues no substantial showing of denial of a constitutional right and COA should be denied	Court held reasonable jurists would not debate the district court’s procedural ruling; COA denied
Whether ineffective-assistance claim survives procedural bar	Rojas-Alvarado claims counsel’s advice induced an uninformed guilty plea tied to the firearm count	Government asserts procedural default/untimeliness and lack of supporting evidence	Court treated ineffective-assistance claim as untimely and not saved by actual-innocence gateway; claim not sufficient to warrant COA

Key Cases Cited

Schlup v. Delo, 513 U.S. 298 (1995) (actual-innocence gateway requires new, reliable evidence showing it is more likely than not that no reasonable juror would convict)
Slack v. McDaniel, 529 U.S. 473 (2000) (standard for issuing a certificate of appealability where dismissal is on procedural grounds)