US v. Daniel Oriakhi


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:92-cr-00283-MJG-1,1:05-cv-02317-MJG Copies to all parties and the district court/agency. [998422058] [08-8224]

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US v. Daniel Oriakhi Doc. 0 Case: 08-8224 Document: 33 Date Filed: 09/10/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-8224 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANIEL ORIAKHI, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. Case: 08-8224 Document: 33 Date Filed: 09/10/2010 Page: 2 PER CURIAM: Daniel Oriakhi appeals from the dismissal of his 28 U.S.C.A. 2255 (West Supp. 2010) motion as untimely filed. previously question equitably of granted whether a certificate the statute Oriakhi's of of appealability limitations on We the be give should to tolled because attorney failed 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. S. Ct. 2549 (2010) (28 U.S.C. See Holland v. Florida, 130 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. than a "garden While attorney misconduct must be more egregious 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. Thus, pursued his Oriakhi 130 S. Ct. at 2562-65. must first the 2 show record that shows he diligently Oriakhi rights. Although that Case: 08-8224 Document: 33 Date Filed: 09/10/2010 Page: 3 doggedly pursued a transcript, he has failed to show that he diligently pursued his 2255 motion. all of Oriakhi's contentions, he was Accepting the truth of 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. motion without the aid his Moreover, Oriakhi eventually filed his of a transcript While and was able may to have adequately articulate claims. Oriakhi 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 330-31 tolling. Cir. See 2000) Harris (no v. Hutchinson, tolling to the 209 F.3d 325, (4th equitable as when counsel of erroneously advised petitioner statute limitations); Jones v. Morton, 195 F.3d 153, 160 (3d Cir. 1999) (misunderstanding excuse failure of to exhaustion comply best with course requirement statute of insufficient of to limitations). to secure a Ironically, Oriakhi's action transcript would have been to file a timely 2255 motion and then apply for See preparation 28 U.S.C. of the transcript (2006); at Government States v. expense. 753(f) United 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 3 Case: 08-8224 Document: 33 Date Filed: 09/10/2010 Page: 4 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. 72 (4th Cir. 2005). See United States v. Morris, 429 F.3d 65, Thus, although Oriakhi was actively attempting to obtain a transcript, he has failed to show that a transcript 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 was necessary to the timely filing of his 2255 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 4

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