US v. Carlos Caro
Filing
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion certificate of appealability (Local Rule 22(a)) [999970665-2], updating certificate of appealability status Originating case number: 2:03-cr-10115-JPJ-1,2:13-cv-80555-JPJ Copies to all parties and the district court/agency. [1000054292].. [16-6027]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-6027
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CARLOS DAVID CARO,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.
James P. Jones, District
Judge. (2:03-cr-10115-JPJ-1; 2:13-cv-80555-JPJ)
Submitted:
February 14, 2017
Before GREGORY,
Judges.
Chief
Judge,
Decided:
and
SHEDD
and
April 3, 2017
DUNCAN,
Circuit
Dismissed by unpublished per curiam opinion.
Timothy Michael Gabrielsen, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Tucson, Arizona; Fay Frances Spence, Assistant Federal
Public Defender, Roanoke, Virginia, for Appellant. Jean Barrett
Hudson, Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Carlos
David
Caro
seeks
to
appeal
the
district
court’s
order denying relief on his 28 U.S.C. § 2255 (2012) motion.
The
order is not appealable unless a circuit justice or judge issues
a
certificate
(2012).
of
appealability.
28
U.S.C.
§ 2253(c)(1)(B)
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).
relief
on
the
demonstrating
district
merits,
that
court’s
debatable
or
a
When the district court denies
prisoner
reasonable
assessment
wrong.
Slack
satisfies
jurists
this
would
of
the
v.
McDaniel,
standard
find
U.S.
that
the
claims
constitutional
529
by
is
473,
484
(2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003).
When the district court denies relief on procedural grounds, the
prisoner must demonstrate both that the dispositive procedural
ruling
is
debatable,
and
that
the
motion
states
claim of the denial of a constitutional right.
a
debatable
Slack, 529 U.S.
at 484-85.
We have independently reviewed the record and conclude that
Caro has not made the requisite showing.
Although the district
court denied relief on the merits, we deny a certificate of
appealability because we conclude that Caro’s § 2255 motion was
untimely.
See United States ex rel. Drakeford v. Tuomey, 792
F.3d 364, 375 (4th Cir. 2015) (recognizing that “we may affirm a
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district court’s ruling on any ground apparent in the record”).
Contrary to Caro’s assertion that his motion was timely under 28
U.S.C. § 2255(f)(4), we conclude that Caro knew of the facts
supporting
his
ineffective
assistance
of
counsel
claim
in
February 2007, at the latest, and he did not file his § 2255
motion until January 2013.
That Caro did not appreciate the
significance of the information that he possessed until much
later
does
not
alter
our
analysis
under
§ 2255(f)(4).
See
Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000) (“Time begins
when the prisoner knows (or through diligence could discover)
the
important
facts,
not
when
the
prisoner
recognizes
their
legal significance.”).
We also conclude that Caro is not entitled to equitable
tolling
of
the
limitations
period.
See
Whiteside
v.
United
States, 775 F.3d 180, 184 (4th Cir. 2014) (en banc) (recognizing
that equitable tolling applies to limitations period for § 2255
motion).
With respect to Caro’s argument that he is entitled to
equitable tolling based on his mental health diagnoses, he has
not
demonstrated
incapacity,”
such
that
as
during
United
v.
(internal
from
“profound
or
the
limitations
Sosa,
quotation
suffered
“institutionalization
incompetence,”
States
he
marks
running
364
of
F.3d
omitted).
the
507,
513
mental
adjudged
(4th
Furthermore,
mental
period.
Cir.
2004)
insofar
as
Caro claims that equitable tolling should be applied based on
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the ineffectiveness of his trial and appellate counsel in his
capital case, nothing in the record suggests that Caro’s capital
counsel
prevented
him
from
timely
postconviction motion in this case.
U.S.
631,
649
(2010)
(holding
raising
his
claim
in
a
See Holland v. Florida, 560
that
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”
(internal
quotation
marks
omitted)).
Moreover,
Caro
knew of the facts underlying his claim in February 2007, at the
latest, and he failed to raise the claim in a postconviction
proceeding
until
January
2013,
which
demonstrates
a
lack
of
diligence on his part.
Accordingly, we deny Caro’s motion for 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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