SOUTHERN DISTRICT OF FLORIDA

CASE NO. 24-CV-60223-ROSENBERG (19-CR-60383-COHN)

MARCO ALMEIDA BARRETO,

Movant,

v.

UNITED STATES OF AMERICA,

Respondent. ________________________________/

ORDER DENYING MOTION TO VACATE THIS CAUSE is before the Court on the Movant’s Motion to Vacate under

[DE 1]. The Court has considered the Motion [DE 1], the Government’s Response [DE 5], the Movant’s Reply [DE 6], and the court file. For the reasons discussed below, the Motion is denied. The Movant pled guilty to possession of firearms by a prohibited person. 19-CR-60383 at DE 38. The Court sentenced the Movant to 120 months’ imprisonment.

at DE 75. The Movant filed a notice of appeal, but his conviction was affirmed and his conviction became final on January 4, 2023.

at DE 94. Section 2255 petitions must be filed within one year of the date upon which a judgment of conviction becomes final.

(f). Thus, the Petitioner had until January 4, 2024, to file a 2255 petition. This Petition was filed on February 5, 2024, and is thus untimely. Although the Supreme Court has held that an untimely petition may be considered if actual innocence is proven, the Court can discern no basis for this exception in the Petition. Instead, the Petition focuses on legal objections—arguing legal sufficiency—pertaining to the Petitioner’s conviction. Legal sufficiency is not actual innocence; actual innocence means factual innocence. Bousley v. U.S.,

(1998). The Petitioner has therefore provided no basis for this Court to consider his untimely Petition. Certificate of Appealability A petitioner seeking to appeal a district court’s final order denying a Section 2255 motion to vacate has no absolute entitlement to appeal and must obtain a certificate of appealability. See

(c)(1); Harbison v. Bell,

(2009). Upon consideration of the record, a certificate of appealability shall not issue. Accordingly, it is ORDERED AND ADJUDGED that: 1. The Movant’s Motion [DE 1] is DENIED;' 2. Final judgment is entered in favor of Respondent; 3. No Certificate of Appealability shall issue; 4. Any pending motions are DENIED as moot; and 5. The Clerk of Court shall CLOSE the case. DONE AND ORDERED in Chambers at West Palm Beach, Florida, this 15th day of August, 2024. . (Fo A A ROBIN L. ROSENBERG fj} UNITED STATES DISTRICT jUDeE

ce: Counsel of Record Marco Ian Almeida-Barreto 25870-104 Jesup FCI Federal Correctional Institution Inmate Mail/Parcels 2680 301 South Jesup, GA 31599 PRO SE

' The Petition also lacks substantive merit for the reasons set forth in the Response.