Opinion
4:04-CR-00035-05-BRW
02-24-2016
UNITED STATES OF AMERICA v. DARRYL WALKER
ORDER
Defendant's Motion for Relief Under Rule 59(e) Motion to Vacate, Set Aside, or Correct his sentence under 28 U.S.C. § 2255 (Doc. No. 658) is DENIED.
Defendant argues that the February 9, 2016 Order denying is § 2255 relief is in error because it failed to consider that his actual innocence claim would toll the statute of limitations. Defendant's "actual innocence" claim is that, under Rosemond v. U.S., he did not have the required state-of-mind to aid and abet the possession of a firearm in a drug trafficking offense which resulted in the death of another person. However, Rosemond was issued seven years after Defendant's conviction, and was not made retroactive to cases on collateral review. Furthermore, Plaintiff claim is one for legal innocence under the state-of-mind ruling in Rosemond, not factual innocence. Even if Rosemond were retroactive, the tolling exception cited by Defendant would not apply because the "the fundamental miscarriage of justice exception involves claims of actual innocence, as opposed to legal innocence."
134 S. Ct. 1240 (2014).
See Montana v. Cross, No. 14-CV-1019, 2014 WL 5091708, at *3 (S.D. Ill. Oct. 10, 2014) (collecting cases).
Narcisse v. Dahm, 9 F.3d 38 (8th Cir. 1993). --------
IT IS SO ORDERED this 24th day of February, 2016.
/s/ Billy Roy Wilson
UNITED STATES DISTRICT JUDGE