United States v. Timothy Johnson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7645
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIMOTHY SHERRON JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:09-cr-00066-BO-1; 5:12-cv-00390-BO)
Submitted: January 23, 2015 Decided: February 3, 2015
Before SHEDD and WYNN, 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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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:
Timothy Sherron Johnson appeals the district court’s
order dismissing his 28 U.S.C. § 2255 (2012) motion as untimely
filed. The district court granted a certificate of
appealability on the issue of whether Johnson’s § 2255 motion
was timely filed. We expanded the certificate of appealability
and directed the parties to file supplemental briefs in light of
Miller v. United States, 735 F.3d 141 (4th Cir. 2013), and
Johnson’s waiver of his right to attack his conviction and
sentence in a § 2255 proceeding. This appeal was subsequently
placed in abeyance for Whiteside v. United States, __ F.3d __,
2014 WL 7245453 (4th Cir. Dec. 19, 2014) (en banc) (No. 13-
7152).
On appeal, Johnson argues that his motion was timely
filed under 28 U.S.C. § 2255(f)(4) pursuant to Johnson v. United
States, 544 U.S. 295, 308 (2005), and United States v. Gadsen,
332 F.3d 224 (4th Cir. 2003), or that, in the alternative, he is
entitled to equitable tolling. Johnson’s arguments are
foreclosed by our en banc decision in Whiteside. See Whiteside,
__ F.3d __, 2014 WL 7245453, at *3-*6 (holding new legal
holdings, other than rulings in the movant’s own case, do not
constitute new “facts” under § 2255(f)(4) and rejecting argument
that United States v. Simmons, 659 F.3d 237 (4th Cir. 2011) (en
banc) provides a basis for equitable tolling).
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Accordingly, we affirm the dismissal of Johnson’s
§ 2255 motion as untimely filed. 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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