United States v. Maurice Parks , 589 F. App'x 185 ( 2015 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 13-7288
    UNITED STATES OF AMERICA,
    Plaintiff – Appellee,
    v.
    MAURICE MONTRAE PARKS,
    Defendant - Appellant.
    Appeal from the United States District Court for the Eastern
    District of North Carolina, at Raleigh.   W. Earl Britt, Senior
    District Judge. (5:10-cr-00127-BR-1; 5:12-cv-00500-BR)
    Submitted:   January 15, 2015             Decided:   January 20, 2015
    Before WILKINSON and NIEMEYER, Circuit Judges, and DAVIS, Senior
    Circuit Judge.
    Affirmed by unpublished per curiam opinion.
    Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
    Assistant Federal Public Defender, Raleigh, North Carolina, for
    Appellant. Thomas G. Walker, United States Attorney, Jennifer P.
    May-Parker,   Kristine   L.   Fritz,  Assistant   United  States
    Attorneys, Raleigh, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Maurice       Montrae       Parks    appeals         the    district    court’s
    orders dismissing his 
    28 U.S.C. § 2255
     (2012) motion as untimely
    and    partially    denying       reconsideration.               The    district      court
    granted a certificate of appealability as to its conclusion that
    Parks’ motion was not timely filed.                        The issues presented in
    this   appeal    are     controlled      by    our    decision         in   Whiteside    v.
    United States, __ F.3d __, 
    2014 WL 7245453
     (4th Cir. Dec. 19,
    2014) (en banc) (No. 13-7152).                 For the reasons that follow, we
    affirm.
    In      his    § 2255       motion,       Parks       asserted      that      his
    Guidelines range was improperly enhanced under U.S. Sentencing
    Guidelines Manual § 2K2.1(a)(2), (b)(6) (2009), because certain
    offenses used to establish these enhancements were not predicate
    felonies under United States v. Simmons, 
    649 F.3d 237
     (4th Cir.
    2011) (en banc).         Although Parks’ motion was filed more than a
    year after his conviction became final, see 
    28 U.S.C. § 2255
    (f)
    (providing one-year statute of limitations for filing of § 2255
    motion),   he    proffers        two   reasons       why    his       § 2255   motion    is
    timely.    First, he asserts, his motion was filed within one year
    of Simmons, and therefore within one year of “the date on which
    the    facts    supporting       [his]    claim       .     .    .    could    have    been
    discovered     through     the    exercise      of    due       diligence.”        See   
    28 U.S.C. § 2255
    (f)(4).         Second, he claims that Simmons constitutes
    2
    an   extraordinary      circumstance           outside    of     his    control       that
    entitles him to equitable tolling.                See Holland v. Florida, 
    560 U.S. 631
    , 649 (2010) (describing required showing for equitable
    tolling of petitions for collateral review).
    Both of Parks’ arguments are foreclosed by our en banc
    decision   in   Whiteside.         In     that   case,    we     held    that      Simmons
    represented a change in law and not a “fact” triggering the
    statute of limitations under § 2255(f)(4).                      Whiteside, 
    2014 WL 7245453
    , at *3-4.       We also held that Simmons does not provide an
    independent     basis        for   equitable       tolling.            
    Id. at *4-5
    .
    Accordingly,     we    affirm      the    district       court’s       judgment.       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.
    AFFIRMED
    3
    

Document Info

Docket Number: 13-7288

Citation Numbers: 589 F. App'x 185

Judges: Wilkinson, Niemeyer, Davis

Filed Date: 1/20/2015

Precedential Status: Non-Precedential

Modified Date: 11/6/2024