                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 16-6027


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

CARLOS DAVID CARO,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.    James P. Jones, District
Judge. (2:03-cr-10115-JPJ-1; 2:13-cv-80555-JPJ)


Submitted:   February 14, 2017               Decided:    April 3, 2017


Before GREGORY,   Chief   Judge,   and   SHEDD   and   DUNCAN,   Circuit
Judges.


Dismissed by unpublished per curiam opinion.


Timothy Michael Gabrielsen, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Tucson, Arizona; Fay Frances Spence, Assistant Federal
Public Defender, Roanoke, Virginia, for Appellant. Jean Barrett
Hudson, Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Carlos     David       Caro    seeks     to    appeal     the     district    court’s

order denying relief on his 28 U.S.C. § 2255 (2012) motion.                                The

order is not appealable unless a circuit justice or judge issues

a   certificate        of    appealability.               28   U.S.C.    § 2253(c)(1)(B)

(2012).     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) (2012).                     When the district court denies

relief    on    the    merits,      a   prisoner         satisfies     this   standard      by

demonstrating         that     reasonable          jurists     would     find     that     the

district       court’s      assessment       of     the    constitutional         claims    is

debatable      or     wrong.        Slack    v.     McDaniel,      529    U.S.     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     a   debatable

claim of the denial of a constitutional right.                           Slack, 529 U.S.

at 484-85.

      We have independently reviewed the record and conclude that

Caro has not made the requisite showing.                        Although the district

court denied relief on the merits, we deny a certificate of

appealability because we conclude that Caro’s § 2255 motion was

untimely.       See United States ex rel. Drakeford v. Tuomey, 792

F.3d 364, 375 (4th Cir. 2015) (recognizing that “we may affirm a

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district court’s ruling on any ground apparent in the record”).

Contrary to Caro’s assertion that his motion was timely under 28

U.S.C. § 2255(f)(4), we conclude that Caro knew of the facts

supporting       his    ineffective            assistance         of        counsel    claim     in

February 2007, at the latest, and he did not file his § 2255

motion until January 2013.                     That Caro did not appreciate the

significance of the information that he possessed until much

later    does    not    alter      our       analysis       under       § 2255(f)(4).           See

Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000) (“Time begins

when the prisoner knows (or through diligence could discover)

the   important        facts,     not     when       the    prisoner         recognizes       their

legal significance.”).

      We also conclude that Caro is not entitled to equitable

tolling    of    the    limitations            period.          See    Whiteside       v.    United

States, 775 F.3d 180, 184 (4th Cir. 2014) (en banc) (recognizing

that equitable tolling applies to limitations period for § 2255

motion).     With respect to Caro’s argument that he is entitled to

equitable tolling based on his mental health diagnoses, he has

not     demonstrated        that        he      suffered         from       “profound        mental

incapacity,”      such      as    “institutionalization                 or    adjudged       mental

incompetence,”         during      the    running          of   the     limitations         period.

United    States       v.   Sosa,        364    F.3d       507,       513    (4th     Cir.    2004)

(internal       quotation        marks    omitted).             Furthermore,          insofar    as

Caro claims that equitable tolling should be applied based on

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the ineffectiveness of his trial and appellate counsel in his

capital case, nothing in the record suggests that Caro’s capital

counsel   prevented        him   from   timely    raising       his    claim   in   a

postconviction motion in this case.              See Holland v. Florida, 560

U.S.    631,   649     (2010)     (holding      that    equitable      tolling      is

appropriate only when the movant demonstrates “(1) that he has

been    pursuing     his     rights     diligently,       and    (2)    that     some

extraordinary circumstance stood in his way and prevented timely

filing”   (internal     quotation       marks   omitted)).        Moreover,      Caro

knew of the facts underlying his claim in February 2007, at the

latest, and he failed to raise the claim in a postconviction

proceeding     until   January     2013,     which     demonstrates     a    lack   of

diligence on his part.

       Accordingly, we deny Caro’s motion for 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




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