US v. Carlos Caro
UNPUBLISHED PER CURIAM OPINION filed.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. .. [16-6027]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
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)
February 14, 2017
April 3, 2017
Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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order denying relief on his 28 U.S.C. § 2255 (2012) motion.
order is not appealable unless a circuit justice or judge issues
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).
When the district court denies
(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
claim of the denial of a constitutional right.
Slack, 529 U.S.
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
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
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
Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000) (“Time begins
when the prisoner knows (or through diligence could discover)
We also conclude that Caro is not entitled to equitable
States, 775 F.3d 180, 184 (4th Cir. 2014) (en banc) (recognizing
that equitable tolling applies to limitations period for § 2255
With respect to Caro’s argument that he is entitled to
equitable tolling based on his mental health diagnoses, he has
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
postconviction motion in this case.
See Holland v. Florida, 560
appropriate only when the movant demonstrates “(1) that he has
extraordinary circumstance stood in his way and prevented timely
knew of the facts underlying his claim in February 2007, at the
latest, and he failed to raise the claim in a postconviction
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.
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