UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-6336
LARRY DARNELL MOORE,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-93-270, CA-00-649-3-MU)
Submitted: May 29, 2002
Decided: June 20, 2002
Before LUTTIG, WILLIAMS, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
COUNSEL
Larry Darnell Moore, Appellant Pro Se. Gretchen C.F. Shappert,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. MOORE
OPINION
PER CURIAM:
Larry Darnell Moore appeals from the district court’s recharacter-
ization of his "Motion to Compel Specific Performance and Motion
Pursuant to 18 U.S.C. 3231 & 21 U.S.C. § 851(a)" as a 28 U.S.C.A.
§ 2255 (West Supp. 2001) motion and the denial thereof. Moore con-
tends that the district court improperly recharacterized his motion
without giving him notice and an opportunity to either amend his
motion or reject the recharacterization.
We decided in United States v. Emmanuel that a district court must
give a prisoner notice of its intent to construe a motion as one filed
under § 2255, when the motion is not labeled as such. The prisoner
should then be given an opportunity to supplement, amend, or object.
___ F.3d ___, 2002 WL 864259, *1 (4th Cir. May 7, 2002). However,
the Emmanuel rule emanates from the concern that, after the adoption
of the Antiterrorism and Effective Death Penalty Act’s ("AEDPA")
limitation on second or successive § 2255 motions, a district court’s
decision to treat an unlabeled or mislabeled motion as a motion under
§ 2255 could deprive a prisoner of bringing a meritorious attack
against his conviction. 2002 WL 864259, at *2-*3. Here, these con-
cerns are not present.
The district court found that Moore’s motion, if considered under
§ 2255, was untimely filed. If, in fact, Moore’s motion was untimely,
a remand requiring the district court to give Moore Emmanuel notice
would be an exercise in futility. As we noted in Emmanuel, "[i]n
cases where no adverse consequences will ensue, the district court
need not give the movant any notice prior to proceeding with the
recharacterization." 2002 WL 864259, at *5; see also United States
v. Chew, 284 F.3d 468, 471 (3d Cir. 2002) (finding no error when
court sua sponte recharacterized time-barred motion).
The AEDPA provides a one-year limitations period for filing a
§ 2255 motion. The one-year period begins to run from the latest of:
(1) the date on which the judgment of conviction becomes final; (2)
the date on which any government-created impediment to filing is
removed; (3) the date on which the Supreme Court recognizes a new
UNITED STATES v. MOORE 3
right that is applicable on collateral review, or (4) the date on which
new evidence is or could have been discovered through due diligence.
28 U.S.C.A. § 2255. Moore’s conviction became final on October 5,
1998, when the Supreme Court denied certiorari review. Moore filed
his motion in January 2002, more than one year later.
However, Moore alleges that his time limitation has not yet begun
to run, because (1) the Government has not responded to his request
for exculpatory evidence and (2) his Freedom of Information Act
("FOIA") requests have not been completed. We find that Moore’s
information requests did not trigger a later filing date based on a Gov-
ernment impediment or newly discovered evidence. Moore noted that
he has not received the materials he requested, yet he filed his motion
and did not state that his motion was incomplete or provide any rea-
son why he ended his wait. Nor has he alleged a discovery of new
facts, stated what facts he hopes to find through his FOIA request, or
how such facts impact his claims for relief. Moreover, Moore’s claims
that he provided substantial assistance and was not a career offender
involve facts of which he should already be aware. Therefore, Moore
has not triggered either extension to the limitations period. As such,
Moore’s motion, if properly construed under § 2255, was untimely.
Thus, since Moore was barred from filing a § 2255 motion at the
time the recharacterization occurred, no adverse consequences
attached to the district court’s recharacterization of his motion.
Accordingly, the district court did not err in failing to give Emmanuel
notice to Moore, and Moore’s motion was properly construed as his
first § 2255 motion.
Thus, we deny a certificate of appealability and dismiss the appeal.
We dispense with oral argument, because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
DISMISSED