US v. Daniel R. Sawyer

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to appoint/assign counsel [999192316-2]; denying Motion for stay pending appeal [999189249-2]; denying Motion to remand case [999189249-3] Originating case number: 3:05-cr-00229-RJC-1,3:12-cv-00193-RJC Copies to all parties and the district court/agency. [999280264]. Mailed to: Daniel R. Sawyer. [13-6556]

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UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Daniel

Sawyer

appeals

the

district

court’s

order

dismissing his 28 U.S.C. § 2255 (2012) motion as untimely.
his

§ 2255

sentenced
United

as

a

States

banc).
was

motion,

Sawyer

career

v.

argued

that

he

was

in

light

of

our

F.3d

237

(4th

offender

Simmons,

649

In

erroneously
decision

Cir.

2011)

in
(en

Although all parties agree that Sawyer’s § 2255 motion

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
unless

a

may

circuit

appealability.

not

justice

appeal
or

the

judge

district
issues

a

28 U.S.C. § 2253(c)(1)(B) (2012).

court’s

order

certificate

of

A certificate

of appealability will not issue absent “a substantial showing of
the denial of a constitutional right.”
(2012).

28 U.S.C. § 2253(c)(2)

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

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

right.

When the district

court denies relief on the merits, a prisoner satisfies this
standard
that

the

by

demonstrating

district

that

court’s

reasonable

assessment

of

jurists
the

would

find

constitutional

claims is debatable or wrong.

Slack v. McDaniel, 529 U.S. 473,

484

Cockrell,

(2000);

see

Miller-El

v.

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
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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

Florida,

his
560

way
U.S.

and

prevented

631,

___,

timely

130

S.

filing.”
Ct.

2549,

Holland
2562

v.

(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.

4

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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.
oral

argument

adequately

because

presented

in

the
the

facts

and

materials

legal
before

We dispense with
contentions
this

court

are
and

argument would not aid the decisional process.
DISMISSED

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