UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6556
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL R. SAWYER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:05-cr-00229-RJC-1; 3:12-cv-00193-RJC)
Submitted: October 30, 2013 Decided: January 21, 2014
Before KEENAN, WYNN, and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Daniel R. Sawyer, Appellant Pro Se. Melissa Louise Rikard,
Assistant United States Attorney, Kevin Zolot, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Daniel Sawyer appeals the district court’s order
dismissing his 28 U.S.C. § 2255 (2012) motion as untimely. In
his § 2255 motion, Sawyer argued that he was erroneously
sentenced as a career offender in light of our decision in
United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en
banc). Although all parties agree that Sawyer’s § 2255 motion
was filed outside of the one-year statute of limitations in
§ 2255(f)(1), Sawyer argued that his motion was timely under
§ 2255(f)(3) or (f)(4) because he filed it within one year of
Simmons. It is undisputed that, had the rule announced in
Simmons been the law when Sawyer was sentenced, he could not
have been sentenced as a career offender. Having reviewed the
parties’ supplemental briefs filed in light of United States v.
Miller, 735 F.3d 141, 146-47 (4th Cir. 2013) (holding that
Simmons announced new substantive rule retroactively applicable
to cases on collateral review), we decline to issue a
certificate of appealability and dismiss the appeal.
Sawyer may not appeal the district court’s order
unless a circuit justice or judge issues a certificate of
appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). A certificate
of appealability will not issue absent “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2)
(2012). When the district court denies relief on procedural
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grounds, the movant must demonstrate both that the dispositive
procedural ruling is debatable, and that the motion states a
debatable claim of the denial of a constitutional right.
Slack v. McDaniel, 529 U.S. 473, 484 (2000). When the district
court denies relief on the merits, a prisoner satisfies this
standard by demonstrating that reasonable jurists would find
that the district court’s assessment of the constitutional
claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473,
484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38
(2003).
The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA) provides that a one-year statute of limitations
applies to the filing of § 2255 motions, and, as relevant here,
the statutory limitations period runs from the latest of:
(1) the date on which the judgment of conviction
becomes final;
. . . .
(3) the date on which the right asserted was
initially recognized by the Supreme Court, if that
right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on
collateral review; or
(4) the date on which the facts supporting the
claim or claims presented could have been discovered
through the exercise of due diligence.
28 U.S.C. § 2255(f).
We conclude that Sawyer’s § 2255 motion is not timely.
It is undisputed that Sawyer’s motion was filed more than one
3
year after the entry of judgment. Sawyer may not avail himself
of § 2255(f)(3) because Simmons is not a decision of the United
States Supreme Court. Lastly, the decision in Simmons is not a
fact for purposes of § 2255(f)(4) because it is not a legal
decision that occurred in Sawyer’s own case. See Lo v.
Endicott, 506 F.3d 572, 575 (7th Cir. 2007); Shannon v. Newland,
410 F.3d 1083, 1088-89 (9th Cir. 2005). *
Sawyer’s main contention is that he is entitled to
equitable tolling. See United States v. Prescott, 221 F.3d 686,
687-88 (4th Cir. 2000). Equitable tolling is appropriate only
when the movant demonstrates “(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing.” Holland v.
Florida, 560 U.S. 631, ___, 130 S. Ct. 2549, 2562 (2010)
(internal quotation marks omitted); United States v. Sosa, 364
F.3d 507, 512 (4th Cir. 2004). Although Sawyer has diligently
pursued his claims post-Simmons, he has not demonstrated any
*
We observe that Sawyer stands in a similar procedural
posture as the defendant in Miller, who also filed a motion
under §2255 based on Simmons more than one year after his
conviction became final. See 735 F.3d at 43. However, in
contrast to Miller, the government has not waived the statute of
limitations issue. Cf. id. Instead, the government asserts
that the one-year statute of limitations precludes the relief
Sawyer seeks in this case.
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extraordinary circumstances warranting equitable tolling of the
AEDPA’s one-year statute of limitations.
Accordingly, we deny a certificate of appealability,
deny Sawyer’s motion for stay and remand, deny Sawyer’s motion
to appoint counsel, and dismiss the appeal. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
DISMISSED
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