US v. Daniel Oriakhi, No. 08-8224 (4th Cir. 2010)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on May 7, 2009.
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-8224 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANIEL ORIAKHI, Defendant - Appellant. 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) Submitted: August 16, 2010 Decided: September 10, 2010 Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Daniel Oriakhi, Appellant Pro Se. Robert Reeves Harding, Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Daniel Oriakhi appeals from the dismissal of his 28 U.S.C.A. § 2255 (West Supp. 2010) motion as untimely filed. previously question granted of equitably whether tolled a certificate the because of statute of Oriakhi s appealability limitations attorney on We should the failed to be 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, 130 S. § 2254 Ct. 2549 (2010) (28 U.S.C. (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 timely filing. than a garden some extraordinary circumstance prevented the While attorney misconduct must be more egregious 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. Thus, pursued his Oriakhi rights. 130 S. Ct. at 2562-65. must first show Although the record 2 that shows he diligently that Oriakhi doggedly pursued a transcript, he has failed to show that he diligently pursued his § 2255 motion. all of Oriakhi s contentions, he Accepting the truth of 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. motion without adequately the Moreover, Oriakhi eventually filed his aid articulate of his a transcript claims. While and was able Oriakhi may to 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 330-31 tolling. (4th erroneously Cir. See 2000) advised Harris (no v. Hutchinson, equitable petitioner as tolling to the 209 F.3d when 325, counsel statute of limitations); Jones v. Morton, 195 F.3d 153, 160 (3d Cir. 1999) (misunderstanding excuse failure Ironically, of to exhaustion comply Oriakhi s best requirement with statute course of insufficient of action to limitations). to secure a transcript would have been to file a timely § 2255 motion and then apply expense. for See preparation 28 U.S.C. of the § 753(f) transcript (2006); at United Government States v. MacCollum, 426 U.S. 317, 321-22 (1976). Moreover, Oriakhi has failed to even allege that there are claims he sought to raise that he could not present due to 3 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 (2005) claim might be supported by a transcript, the claim is not cognizable on collateral review. 72 (4th Cir. See United States v. Morris, 429 F.3d 65, 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 foregoing, we affirm the district court s order. on the 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 4
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