UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7463
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AHMAD RASHAD TOMLINSON, a/k/a Tank,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:05-cr-00285-BO-1; 5:11-cv-00565-BO)
Submitted: January 22, 2013 Decided: January 24, 2013
Before WILKINSON, NIEMEYER, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Ahmad Rashad Tomlinson, Appellant Pro Se. Jennifer P. May-
Parker, Ethan A. Ontjes, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ahmad Rashad Tomlinson seeks to appeal the district
court’s orders denying relief on his 28 U.S.C.A. § 2255 (West
Supp. 2012) motion and denying his Fed. R. Civ. P. 59(e) motion
to alter or amend the judgment. Tomlinson was convicted of
conspiracy to distribute and to possess with intent to
distribute crack cocaine and was sentenced as a career offender
in May 2006 to 180 months’ imprisonment. He did not file a
direct appeal.
In 2011, Tomlinson filed this § 2255 motion
challenging his career offender designation in light of the
Supreme Court’s opinion in Carachuri-Rosendo v. Holder, 130 S.
Ct. 2577 (2010), and our opinion in United States v. Simmons,
649 F.3d 237 (4th Cir. 2011) (en banc). The district court held
that Carachuri-Rosendo was retroactively applicable to cases on
collateral review and that Tomlinson was entitled to equitable
tolling to assert his claim under Simmons, but that ultimately
Tomlinson’s claim failed on the merits. At the time the
district court issued its decision denying § 2255 relief, it did
not have the benefit of our recent opinion in United States v.
Powell, 691 F.3d 554 (4th Cir. 2012), where we held that
Carachuri-Rosendo is not retroactively applicable to cases on
collateral review. 691 F.3d at 559-60.
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In light of Powell, Tomlinson’s § 2255 motion is
untimely. Accordingly, we deny a certificate of appealability
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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