                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 13-6827


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.

EDUARDO BOWMAN,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:05-cr-00218-DCN-1; 2:12-cv-02249-DCN)


Submitted:   August 7, 2013                 Decided:   March 26, 2014


Before WILKINSON, KING, and DUNCAN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Eduardo Bowman, Appellant Pro Se. Matthew J. Modica, Assistant
United   States  Attorney,  Charleston, South   Carolina,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Eduardo Bowman seeks to appeal the district court’s order

granting the government’s summary judgment motion and denying

relief on his 28 U.S.C.A. § 2255 motion.                       We deny a certificate

of appealability and dismiss the appeal.



                                       I.

       Adhering to the terms of a negotiated agreement with the

government,      Bowman   pleaded     guilty         in    the   District    of    South

Carolina to conspiracy to distribute and possess with intent to

distribute cocaine, in violation of 21 U.S.C. § 846.                        In October

2005, the district court, in conformance with the Sentencing

Guidelines, sentenced Bowman as a career offender to 240 months

of    imprisonment.       Bowman     did       not   appeal      his   conviction    or

sentence.

       In   February    2012,   Bowman,        being      incarcerated      within   the

jurisdiction of the Eastern District of North Carolina, filed a

petition there pursuant to 28 U.S.C. § 2241, challenging his

career      offender   designation    in       light      of   Carachuri-Rosendo      v.

Holder, 560 U.S. 563 (2010), and United States v. Simmons, 649

F.3d 237 (4th Cir. 2011) (en banc).                       The district court, with

Bowman’s consent, construed the petition as a § 2255 motion, but

then transferred it to the District of South Carolina.                            Bowman

had   sought    appointment     of   counsel         from      the   transferor   court

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under a standing order governing requests for post-conviction

relief based on Simmons; the transfer order concomitantly denied

his request.

      The government moved in the transferee court to dismiss

Bowman’s    § 2255     motion,    or,   in    the     alternative,     for   summary

judgment.     The court determined that Bowman’s motion was filed

outside of the applicable one-year statute of limitations, see

28 U.S.C. § 2255(f), and that Bowman had not made any argument

to justify equitable tolling of the limitations period.                           The

court reasoned that, in any event, even if the § 2255 motion had

been timely, Bowman’s arguments were barred by the appeal waiver

in   his   plea   agreement.       Accordingly,         the   court    granted    the

government’s      summary     judgment       motion     and   denied     relief    on

Bowman’s § 2255 motion.          Bowman noted a timely appeal.



                                        II.

      Bowman may not appeal the district court’s denial of relief

on his § 2255 motion unless a circuit justice or judge issues a

certificate of appealability.            See 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 a prisoner is denied relief on the

merits,     the    standard      for    appealability         is      satisfied    if

reasonable jurists would find the district court’s assessment of

                                         3
the constitutional claims to be debatable or wrong.              See Miller-

El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel,

529 U.S. 473, 484 (2000).            If the district court denies relief

on procedural grounds, the prisoner must demonstrate that the

dispositive procedural ruling is debatable, and also that the

motion     states    a    debatable     claim    of   the     denial    of   a

constitutional right.       Slack, 529 U.S. at 484-85.

                                       A.

      In this proceeding, we confine our review to the issues

briefed.    See 4th Cir. R. 34(b).          Bowman’s informal brief does

not   challenge     the   district    court’s   adverse     determination    on

equitable tolling or contend that the doctrine should otherwise

apply.     Bowman also fails to address the court’s alternative

determination regarding the appeal waiver.             By electing to not

brief these issues, Bowman has waived their review.                    Wahi v.

Charleston Area Med. Ctr., Inc., 562 F.3d 599, 607 (4th Cir.

2009); Williams v. Giant Food Inc., 370 F.3d 423, 430 n.4 (4th

Cir. (2004) *




      *
       The government, however, has not filed a brief invoking
the appeal waiver.      Accordingly, the government has forgone
reliance thereon.    See United States v. Metzger, 3 F.3d 756,
757–58 (4th Cir. 1993).



                                        4
                                               B.

      Bowman     maintains         that     the       transferor       court        erred    by

construing his § 2241 petition as a § 2255 motion, sending it to

the   District       of    South   Carolina,         and    denying    his     request       for

appointment of counsel.             We disagree.

      A federal prisoner seeking to challenge the legality of his

conviction      or    sentence       must      proceed      pursuant      to      § 2255,    as

petitions under § 2241 generally are reserved for challenges to

the   execution       of    the    prisoner’s        sentence.         See     In    re   Vial,

115 F.3d 1192, 1194 n.5 (4th Cir. 1997).                          However, in limited

circumstances, § 2255 may be inadequate or ineffective to test

the legality of the prisoner’s detention.                         In those cases, the

prisoner “may file a petition for a writ of habeas corpus in the

district   of    confinement         pursuant         to    § 2241.”         In     re    Jones,

226 F.3d 328, 333 (4th Cir. 2000).                         Because § 2255 is neither

inadequate     nor        ineffective     to       test    the   legality      of    Bowman’s

detention, he was constrained to bring his challenge in a § 2255

motion.    See United States v. Poole, 531 F.3d 263, 267 & n.7

(4th Cir. 2008); Jones, 226 F.3d at 333-34.

      Moreover, after providing the required notice of its intent

to    construe       the    § 2241    petition        as     a   § 2255      motion,        then

obtaining Bowman’s consent thereto, see Castro v. United States,

540 U.S. 375, 383 (2005), the transferor court properly gave way

to the transferee court.             See 28 U.S.C. § 1631 (2006) (mandating

                                               5
transfer       of     a     civil      action       to    the    appropriate            federal

jurisdiction if the transfer “is in the interest of justice”);

28 U.S.C.A. § 2255(a) (directing that a prisoner “in custody

under    sentence         of   a     court   established         by    Act       of    Congress

claiming the right to be released” move the court that “imposed

the sentence” to vacate, set aside, or correct it).

       Additionally,           the    transferor         court   did       not    abuse       its

discretion       in       denying     Bowman’s       request     for       appointment         of

counsel under the standing order.                        See Miller v. Simmons, 814

F.2d    962,    966       (4th Cir.     1987).       The    standing       order        was   not

applicable to Bowman because he was sentenced in the District of

South Carolina, not the Eastern District of North Carolina.

                                              C.

       With respect to the transferee court’s consideration of the

§ 2255 motion, Bowman first challenges the determination that

the    motion    was      filed      after   the    expiration        of   the        applicable

limitations period.            The statute provides, in pertinent part:

            A 1-year period of limitation shall apply to a
       motion under this section.    The limitation period
       shall run from the latest of—

                    (1) the date on which the                          judgment          of
               conviction becomes final; . . . .

                    (3) the date on which the right asserted was
               initially recognized by the Supreme Court, if
               that right has been newly recognized by the
               Supreme Court and made retroactively applicable
               to cases on collateral review; or


                                                6
                    (4) the date on which the facts supporting
               the claim or claims presented could have been
               discovered through the exercise of due diligence.

28 U.S.C.A. § 2255(f)(1), (3)-(4).                      Bowman does not suggest that

his § 2255 motion is timely under §§ 2255(f)(1), as it was filed

more    than     one   year        after   his       judgment       of      conviction      became

final, and is not — as the district court found — subject to

equitable tolling.

       In addition, Bowman is not entitled to the later triggering

date     under    § 2255(f)(3).              The      Supreme          Court’s      decision      in

Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), upon which

Bowman    bases     his      motion,       is   not     retroactively              applicable     to

cases    on    collateral          review,      and,    therefore,            a    § 2255    movant

cannot     use    it    to    establish          the    onset          of    the    § 2255(f)(3)

limitations period.            See United States v. Powell, 691 F.3d 554,

560 (4th Cir. 2012).               By contrast, our decision in United States

v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), upon which

Bowman    also     relies,         is   retroactively            applicable         to    cases   on

collateral review.            See Miller v. United States, 735 F.3d 141,

145-47 (4th Cir. 2013).                  Nonetheless, because Simmons is not a

Supreme    Court       decision         recognizing         a    new     right,      it   likewise

cannot    be     invoked      in    connection         with       the       limitations     period

onset contemplated by § 2255(f)(3).

       Furthermore,          the    decisions          in       Carachuri-Rosendo           and   in

Simmons merely clarified the law and were not part of Bowman’s

                                                 7
litigation      history.         Hence,     they     have    no    bearing     on    the

calculation        of    any     limitations        period        potentially       made

applicable to him by § 2255(f)(4).                 See Lo v. Endicott, 506 F.3d

572, 575–76 (7th Cir. 2007); E.J.R.E. v. United States, 453 F.3d

1094,    1097-98    (8th Cir.      2006);      Shannon      v.   Newland,     410   F.3d

1083, 1088–89 (9th Cir. 2005).

                                          D.

      Finally,     and   not     insignificantly,        Bowman’s       two   predicate

Georgia convictions underlying his career offender status were

for possession of cocaine with intent to distribute, for which

he   received    twelve-year       prison      sentences.         The   decisions    in

Carachuri-Rosendo and Simmons notwithstanding, Bowman’s Georgia

convictions provide ample foundation for his designation as a

career    offender.        See     USSG   §§ 4B1.1(a)(3),          4B1.2(b)      (2013)

(authorizing imposition of career offender status in situation

where defendant has “at least two prior felony convictions of

. . . a controlled substance offense,” such offense defined,

inter alia, as one “under federal or state law, punishable by

imprisonment for a term exceeding one year, that prohibits . . .

the possession of a controlled substance . . . with intent to

. . . distribute”).




                                          8
                               III.

    In view of the foregoing, we conclude that Bowman has not

made a substantial showing of the denial of a constitutional

right.     Consequently, we deny his request for a certificate of

appealability, deny his motion to appoint counsel, 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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