Opinion
23-6136
06-21-2023
ADRIAN RASHAUN ANDERSON, a/k/a Duke, Defendant-Appellant, v. UNITED STATES OF AMERICA, Plaintiff-Appellee.
Adrian Rashaun Anderson, Appellant Pro Se.
UNPUBLISHED
Submitted: June 15, 2023
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:17-cr-00111-BO-2; 5:22-cv-00131-BO)
Adrian Rashaun Anderson, Appellant Pro Se.
Before DIAZ, RICHARDSON, and HEYTENS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Adrian Rashaun Anderson seeks to appeal the district court's order dismissing as untimely his 28 U.S.C. § 2255 motion. See Whiteside v. United States, 775 F.3d 180, 18283 (4th Cir. 2014) (en banc) (explaining that § 2255 motions are subject to one-year statute of limitations, running from latest of four commencement dates enumerated in 28 U.S.C. § 2255(f)). The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B). 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). When, as here, the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable and that the motion states a debatable claim of the denial of a constitutional right. Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
We have independently reviewed the record and conclude that Anderson has not made the requisite showing.[*] Accordingly, we deny 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.
DISMISSED
[*] The district court found that the 90-day deadline for filing a petition for certiorari expired on August 25, 2020, and therefore determined that Anderson had until August 25, 2021, to timely file his § 2255 motion. In fact, Anderson had until October 25, 2021, to timely file his motion, as the Supreme Court had extended the 90-day deadline for filing certiorari petitions to 150 days to account for the COVID-19 pandemic. Nonetheless, because Anderson filed his § 2255 motion five months after the extended statute of limitations expired, the district court's dismissal of Anderson's motion as untimely is not debatable.