MEMORANDUM AND ORDER
RICHARD D. ROGERS, United States District Judge.
This matter is presently before the court upon defendant's pro se motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. In his motion, the defendant contends the court's finding at sentencing that he was a career offender must be vacated. He argues that such action is necessary because (1) he is actually innocent of being a career offender; and (2) the court lacked jurisdiction to impose a career offender sentence. Having carefully reviewed the arguments of the parties, the court is now prepared to rule.
On August 26, 2010, a jury convicted the defendant of distribution of a mixture or substance containing a detectable amount of cocaine base in violation of 21 U.S.C. § 841(a)(1). Prior to trial, the government filed an Amended Information under 21 U.S.C. § 851(a)(1) to seek a penalty enhancement because the defendant had a prior felony conviction in Riley County, Kansas District Court for possession of cocaine with intent to distribute without 1000 feet of a school in 2003.
The presentence report (PSR) prepared by the United States Probation Office applied U.S.S.G. § 4B1.1 because the defendant qualified as a career offender under the Sentencing Guidelines. The defendant qualified as a career offender because he had four qualifying felony convictions . Based upon the application of § 4B1.1 to the defendant's offense of conviction, the defendant's total offense level was 34. This total offense level, combined with the defendant's criminal history category of VI yielded an advisory Guidelines sentencing range of 262 to 327 months.
On April 21, 2011, the court conducted a sentencing hearing. The defendant sought a downward variance from the advisory Guidelines sentencing range to ten years. He objected to application of the career offender guideline "both on due process grounds under the Fifth Amendment, as well as cruel and unusual grounds under the Eighth Amendment." The government requested that the court sentence the defendant to the top end of the career offender range.
The court found that the defendant's correctly calculated advisory Guidelines sentencing range was 262 to 327 months based on the career offender guideline and imposed a sentence of imprisonment of 262 months. The court determined this sentence appropriate in light of the factors under 18 U.S.C. § 3553(a).
The defendant appealed his sentence. He contended only that his sentence was substantively unreasonable. The Tenth Circuit applied a presumption of reasonableness to this court's within Guidelines sentence and affirmed the sentence. United States v. Robinson, 437 Fed.Appx. 733, 735-36 (10th Cir. 2011) . This decision was issued on August 30, 2011. The defendant's petition for writ of certiorari was denied by the Supreme Court on January 9, 2012. Robinson v. United States, 132 S.Ct. 1065 (2012) .
The government contends that defendant's motion must be denied as untimely. The government asserts that the defendant did not file his motion until more than one year after his judgment of conviction became final. The government further argues that the defendant's claims are barred under the procedural default rule. Finally, the government asserts that the defendant's claims fail on the merits.
The Anti-Terrorism and Effective Death Penalty Act ("AEDPA") establishes a one-year limitations period within which § 2255 movants must file. The one-year limitations period ordinarily runs from the date on which the judgment of conviction becomes final. See 28 U.S.C. § 2255(f) (1). The judgment of conviction became final in this case on January 9, 2012. The instant motion is untimely since the defendant did not file it until August 28, 2013.
The defendant recognizes that he did not file the instant petition within the one-year time limit but contends that this court may reach his claim under three theories that allow him to circumvent procedural default. First, he contends that he can assert the motion because he "is actually innocent of being a career offender as concluded by this Court." He notes that a recent United States Supreme Court case, McQuiggin v. Perkins, 569 U.S. ___, 133 S.Ct. 1924 (2013), has clarified that a claim of actual innocence is not barred by the time limitations of AEDPA. Second, he asserts that the government's Amended Information which was filed prior to trial is ineffective to confer jurisdiction upon this court to sentence him as a career offender because it alleged a single felony conviction instead of two such convictions as required under § 4B1.1. Finally, he argues that his claim is not time-barred because the court lacked jurisdiction to sentence him as a career offender because he did not have the two requisite qualifying convictions.
The record shows that defendant's § 2255 motion is time-barred because it was filed after the expiration of the one-year statute of limitations. The arguments raised by the defendant to avoid the ...