UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-8224
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL ORIAKHI,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District
Judge. (1:92-cr-00283-MJG-1; 1:05-cv-02317-MJG)
Submitted: August 16, 2010 Decided: September 10, 2010
Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Daniel Oriakhi, Appellant Pro Se. Robert Reeves Harding,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Daniel Oriakhi appeals from the dismissal of his 28
U.S.C.A. § 2255 (West Supp. 2010) motion as untimely filed. We
previously granted a certificate of appealability on the
question of whether the statute of limitations should be
equitably tolled because Oriakhi’s attorney failed to give
Oriakhi his trial transcript and other relevant legal documents.
After further briefing, we affirm.
Equitable tolling applies to the statute of
limitations in § 2255 proceedings. See Holland v. Florida, 130
S. Ct. 2549 (2010) (28 U.S.C. § 2254 (2006) proceeding).
Specifically, in order to be entitled to equitable tolling, the
movant must show (1) that he has diligently pursued his rights
and (2) that some extraordinary circumstance prevented the
timely filing. While attorney misconduct must be more egregious
than a “garden variety claim of excusable neglect” to be
considered an extraordinary circumstance, the requirement might
be met by a showing of an extraordinary failure by the attorney
to provide reasonably competent legal work, to communicate with
his client, to implement his client’s reasonable requests, to
keep his clients informed of key developments in their cases, or
to never abandon a client. 130 S. Ct. at 2562-65.
Thus, Oriakhi must first show that he diligently
pursued his rights. Although the record shows that Oriakhi
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doggedly pursued a transcript, he has failed to show that he
diligently pursued his § 2255 motion. Accepting the truth of
all of Oriakhi’s contentions, he was aware of the filing
deadline for his § 2255 motion, and yet he failed to file a
§ 2255 motion until 2005, over eight years after the statute of
limitations had expired. Moreover, Oriakhi eventually filed his
motion without the aid of a transcript and was able to
adequately articulate his claims. While Oriakhi may have
subjectively believed that he could not properly file a § 2255
motion without first reviewing his transcript, his unfamiliarity
with the legal process or ignorance of the law cannot support
equitable tolling. See Harris v. Hutchinson, 209 F.3d 325,
330-31 (4th Cir. 2000) (no equitable tolling when counsel
erroneously advised petitioner as to the statute of
limitations); Jones v. Morton, 195 F.3d 153, 160 (3d Cir. 1999)
(misunderstanding of exhaustion requirement insufficient to
excuse failure to comply with statute of limitations).
Ironically, Oriakhi’s best course of action to secure a
transcript would have been to file a timely § 2255 motion and
then apply for preparation of the transcript at Government
expense. See 28 U.S.C. § 753(f) (2006); United States v.
MacCollum, 426 U.S. 317, 321-22 (1976).
Moreover, Oriakhi has failed to even allege that there
are claims he sought to raise that he could not present due to
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his lack of access to a transcript. As to the two claims he did
raise, his assertion that his attorney was ineffective during
the plea negotiation process would not be aided by a transcript
as it involved discussions and events outside of the record.
While his United States v. Booker, 543 U.S. 220 (2005) claim
might be supported by a transcript, the claim is not cognizable
on collateral review. See United States v. Morris, 429 F.3d 65,
72 (4th Cir. 2005). Thus, although Oriakhi was actively
attempting to obtain a transcript, he has failed to show that a
transcript was necessary to the timely filing of his § 2255
motion.
Because we conclude that Oriakhi cannot show that he
diligently pursued his rights, we need not address the second
Holland prong, that is, whether Oriakhi’s attorney’s misconduct
rose to an “extraordinary circumstance.” Based on the
foregoing, we affirm the district court’s order. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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