UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6195
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARTREY ANTWAIN NEWBY, a/k/a Trey,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
District Judge. (4:07-cr-00051-FL-1; 4:12-cv-00042-FL)
Submitted: May 29, 2014 Decided: June 3, 2014
Before SHEDD, WYNN, and THACKER, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Martrey A. Newby, Appellant Pro Se. J. Frank Bradsher, Joshua
Bryan Royster, Shailika K. Shah, Augustus D. Willis, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Martrey Antwain Newby appeals the district court’s
order accepting the recommendation of the magistrate judge and
dismissing as untimely filed his 28 U.S.C. § 2255 (2012) motion.
We vacate this portion of the district court’s order and remand
for further proceedings. Newby does not, however, challenge on
appeal the district court’s denial of his 18 U.S.C. § 3582(c)(2)
(2012) motion. Thus, he has forfeited appellate review of the
district court’s decision on that issue, see 4th Cir. R. 34(b),
and we affirm that portion of the district court’s order.
Under the Antiterrorism and Effective Death Penalty
Act (“AEDPA”), a one year statute of limitations applies to the
filing of a § 2255 motion. 28 U.S.C. § 2255(f). The
limitations period runs from the latest of: (1) “the date on
which the judgment of conviction becomes final;” (2) the date on
which any government-imposed impediment to filing the motion is
removed; (3) the date on which the asserted constitutional right
was recognized and made retroactively applicable to cases on
collateral review by the Supreme Court; or (4) “the date on
which the facts supporting the claim or claims presented could
have been discovered through the exercise of due diligence.”
Id.
With regard to subsection (f)(1), it is well settled
that finality attaches when the Supreme Court “affirms a
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conviction on the merits on direct review or denies a petition
for a writ of certiorari, or when the time for filing a
certiorari petition expires.” Clay v. United States, 537 U.S.
522, 527 (2003). Here, the Supreme Court denied Newby’s timely-
filed petition for writ of certiorari on March 28, 2011. Thus,
his § 2255 motion, filed on March 22, 2012, was timely under the
AEDPA. Accordingly, we vacate the district court’s dismissal of
Newby’s § 2255 motion as untimely filed and remand for further
proceedings.
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.
AFFIRMED IN PART;
VACATED IN PART AND REMANDED
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