United States v. Maurice Parks

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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