Background
Charlie Foster pleaded guilty in 2019 to being a felon in possession of a firearm, while preserving his right to appeal the denial of a suppression motion. The district court sentenced him to 210 months in prison after applying the Armed Career Criminal Act’s enhanced range of 15 years to life based on three prior methamphetamine convictions under Arkansas Code § 5-64-401(a). The Eighth Circuit affirmed the suppression ruling on direct appeal, and the Supreme Court denied certiorari in March 2022.
Foster filed a pro se motion under 28 U.S.C. § 2255 in August 2023. Although he initially alleged ineffective assistance concerning advice about his ACCA status, he abandoned those claims in the district court and argued that later categorical-approach decisions showed his Arkansas convictions were not “serious drug offenses” under the ACCA. Foster conceded that his motion was untimely but asserted that his claimed actual innocence of the ACCA enhancement excused the time bar. The district court rejected that argument and also concluded that the Arkansas convictions qualified under Eighth Circuit precedent.
The Court’s Holding
The Eighth Circuit affirmed because Foster’s § 2255 motion was barred by the statute of limitations. The court first explained that new caselaw generally is not the kind of new, reliable evidence required to invoke the actual-innocence gateway, which ordinarily involves evidence such as exculpatory scientific proof, trustworthy eyewitness accounts, or critical physical evidence.
The court further held that Foster’s claim would fail even if new caselaw could constitute new reliable evidence. Under the Eighth Circuit’s en banc decision in Embrey v. Hershberger, the actual-innocence exception does not apply to alleged errors in noncapital sentencing. Foster did not claim factual innocence of his federal firearm offense or his Arkansas drug convictions; he claimed only that those convictions did not support the ACCA enhancement. Bound by Embrey, the panel held that this sentencing claim could not excuse the untimely filing.
Because the motion was time-barred under 28 U.S.C. § 2255(f), the court did not decide whether Arkansas’s methamphetamine offense is broader than the corresponding federal drug definition or whether Foster’s ACCA-enhanced sentence exceeded the maximum authorized by law.
Key Takeaways
- In the Eighth Circuit, alleged actual innocence of a noncapital sentencing enhancement does not open the actual-innocence gateway around a procedural or limitations bar.
- New judicial decisions generally do not qualify as the new, reliable evidence required to establish actual innocence.
- The panel did not decide whether Foster’s Arkansas methamphetamine convictions remain ACCA predicates under the categorical approach.
Why It Matters
The decision reinforces a strict distinction between factual innocence of an offense and a claim that prior convictions were legally misclassified for sentencing. In the Eighth Circuit, a federal prisoner ordinarily cannot use the actual-innocence exception to revive an untimely § 2255 motion based solely on an asserted ACCA sentencing error.
The ruling also leaves the underlying categorical-match issue unresolved. Practitioners challenging ACCA predicates must therefore preserve and timely raise those arguments rather than relying on actual innocence to overcome § 2255’s limitations period.