US v. Ousmane Diallo, No. 14-6450 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-6450 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. OUSMANE DIALLO, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:12-cr-00357-1; 1:14-cv-00077) Submitted: July 29, 2014 Decided: August 11, 2014 Before MOTZ, DUNCAN, and KEENAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Ousmane Diallo, Appellant Pro Se. Rebeca Hidalgo Bellows, Assistant United States Attorney, Justin Edward Fairfax, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Ousmane Diallo seeks to appeal the district court s order dismissing as untimely his amended 28 U.S.C. § 2255 (2012) motion to vacate, set aside, or correct his sentence. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. A certificate of 28 U.S.C. § 2253(c)(1)(B) (2012). appealability will not issue absent a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2) (2012). relief on the demonstrating district merits, that court s debatable or a When the district court denies prisoner reasonable assessment wrong. Slack satisfies jurists this would of the v. McDaniel, standard find U.S. that the claims constitutional 529 by is 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When 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 claim of the denial of a constitutional right. a debatable Slack, 529 U.S. at 484-85. We have independently reviewed the record and conclude that Diallo has not made the requisite showing. Diallo s federal convictions became final on January 28, 2013, upon the expiration appeal. of the fourteen-day period for filing a direct See Clay v. United States, 537 U.S. 522, 525 (2003); 2 see also Fed. R. App. P. 4(b)(1)(A)(i), (b)(6). Absent a tolling thereof, Diallo had one year, until January 28, 2014, to file his § 2255 motion. See 28 U.S.C. § 2255(f)(1). However, Diallo did not execute his amended § 2255 motion until February 24, 2014. See Houston v. Lack, 487 U.S. 266 (1988). And despite Diallo s contention to the contrary, the amended motion did not relate back, pursuant to Fed. R. Civ. P. 15(c)(1)(B), to the bare bones placeholder § 2255 within the limitations period. motion that Diallo filed See Mayle v. Felix, 545 U.S. 644, 660-64 (2005); United States v. Pittman, 209 F.3d 314, 31718 (4th Cir. 2000). Because analysis the is debatable, * certificate dispense not of with contentions are district appealability oral argument adequately court s we deny and dispositive Diallo s dismiss because presented in the the the timeliness motion for appeal. facts a We and legal materials before this court and argument would not aid the decisional process. DISMISSED * We thus decline to consider the propriety of the district court s alternative procedural ruling that the amended motion was an unauthorized, successive § 2255 motion. 3
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