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U.S. v. Oriakhi

United States Court of Appeals, Fourth Circuit
Sep 10, 2010
394 F. App'x 976 (4th Cir. 2010)

Summary

holding that the petitioner's "unfamiliarity with the legal process or ignorance of the law [could not] support equitable tolling"

Summary of this case from McMillion v. United States

Opinion

No. 08-8224.

Submitted: August 16, 2010.

Decided: September 10, 2010.

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).

Daniel Oriakhi, Appellant Pro Se. Robert Reeves Harding, Assistant United States Attorney, Baltimore, Maryland, for Appellee.

Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.


Daniel Oriakhi appeals from the dismissal of his 28 U.S.C.A. § 2255 (West Supp. 2010) motion as untimely filed. We previously granted a certificate of appealability on the question of whether the statute of limitations should be equitably tolled because Oriakhi's attorney failed to give 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. See Holland v. Florida, ___ U.S. ___, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) ( 28 U.S.C. § 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. While attorney misconduct must be more egregious than a "garden 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. 130 S.Ct. at 2562-65.

Thus, Oriakhi must first show that he diligently pursued his rights. Although the record shows that Oriakhi doggedly pursued a transcript, he has failed to show that he diligently pursued his § 2255 motion. Accepting the truth of all of Oriakhi's contentions, he was 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. Moreover, Oriakhi eventually filed his motion without the aid of a transcript and was able to adequately articulate his claims. While Oriakhi may have 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 tolling. See Harris v. Hutchinson, 209 F.3d 325, 330-31 (4th Cir. 2000) (no equitable tolling when counsel erroneously advised petitioner as to the statute of limitations); Jones v. Morton, 195 F.3d 153, 160 (3d Cir. 1999) (misunderstanding of exhaustion requirement insufficient to excuse failure to comply with statute of limitations). Ironically, Oriakhi's best course of action to secure a transcript would have been to file a timely § 2255 motion and then apply for preparation of the transcript at Government expense. See 28 U.S.C. § 753(f) (2006); United States v. MacCollom, 426 U.S. 317, 321-22, 96 S.Ct. 2086, 48 L.Ed.2d 666 (1976).

Moreover, Oriakhi has failed to even allege that there are claims he sought to raise that he could not present due to 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, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) claim might be supported by a transcript, the claim is not cognizable on collateral review. See United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005). Thus, although Oriakhi was actively attempting to obtain a transcript, he has failed to show that a transcript was necessary to the timely filing of his § 2255 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 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.


Summaries of

U.S. v. Oriakhi

United States Court of Appeals, Fourth Circuit
Sep 10, 2010
394 F. App'x 976 (4th Cir. 2010)

holding that the petitioner's "unfamiliarity with the legal process or ignorance of the law [could not] support equitable tolling"

Summary of this case from McMillion v. United States

holding that the petitioner's "unfamiliarity with the legal process or ignorance of the law [could not] support equitable tolling"

Summary of this case from Bryant v. United States

holding that the petitioner's "unfamiliarity with the legal process or ignorance of the law [could not] support equitable tolling"

Summary of this case from Ferebee v. United States

finding that, although petitioner "doggedly pursued a transcript" and other relevant legal documents from his attorney, he "failed to show that he diligently pursued his § 2255 motion"

Summary of this case from King v. United States

finding that, although petitioner "doggedly pursued a transcript" and other relevant legal documents from his attorney, he "failed to show that he diligently pursued his § 2255 motion"

Summary of this case from Arevalo-Hernandez v. United States

finding counsel's failure to furnish transcripts insufficient for equitable tolling when petitioner did not show that the transcripts were necessary to the timely filing of his federal petition and petitioner eventually filed a federal petition without such transcripts

Summary of this case from Ashford v. Johnson

denying equitable tolling because "although [the movant] was actively attempting to obtain a transcript, he has failed to show that a transcript was necessary to the timely filing of his § 2255 motion"

Summary of this case from Quinn v. United States

denying equitable tolling where, "[a]lthough the record shows that Oriakhi doggedly pursued a transcript, he has failed to show that he diligently pursued his § 2255 motion."

Summary of this case from U.S. v. Nixon

applying equitable tolling standard to motion filed pursuant to 28 U.S.C. § 2255 and finding that movant had not diligently pursued his rights when he filed the motion eight years after the expiration of the statute of limitations

Summary of this case from Buggs v. Warden of Tyger River Corr. Inst.

noting that a petitioner's "unfamiliarity with the legal process or ignorance of the law cannot support equitable tolling"

Summary of this case from Evans v. McCall

remarking that "unfamiliarity with the legal process or ignorance of the law cannot support equitable tolling"

Summary of this case from Bryant v. Hines

remarking that "unfamiliarity with the legal process or ignorance of the law cannot support equitable tolling"

Summary of this case from Applewhite v. Keller

remarking that "unfamiliarity with the legal process or ignorance of the law cannot support equitable tolling"

Summary of this case from Moore v. Whitener

considering that equitable tolling applies to Section 2255 proceedings and utilizing test in Holland

Summary of this case from Guthrie v. Berkebile

noting equitable tolling based upon attorney negligence may be available in cases that are more egregious than a "garden variety claim of excusable neglect" (citing Holland, 130 S.Ct. at 2562-65)

Summary of this case from Snyder v. Warden

considering that equitable tolling applies to Section 2255 proceedings and utilizing test in Holland

Summary of this case from Ross v. U.S.
Case details for

U.S. v. Oriakhi

Case Details

Full title:UNITED STATES of America, Plaintiff-Appellee, v. Daniel ORIAKHI…

Court:United States Court of Appeals, Fourth Circuit

Date published: Sep 10, 2010

Citations

394 F. App'x 976 (4th Cir. 2010)

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