                               UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.                                    We

previously         granted     a    certificate             of   appealability          on    the

question      of     whether       the    statute          of    limitations         should    be

equitably      tolled     because         Oriakhi’s          attorney     failed       to     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.     Ct.   2549     (2010)       (28    U.S.C.           § 2254     (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     some    extraordinary               circumstance        prevented       the

timely filing.         While attorney misconduct must be more egregious

than    a    “garden    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.               130 S. Ct. at 2562-65.

              Thus,    Oriakhi       must     first          show     that     he    diligently

pursued      his    rights.        Although          the    record    shows     that    Oriakhi

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doggedly pursued a transcript, he has failed to show that he

diligently pursued his § 2255 motion.                            Accepting the truth of

all    of    Oriakhi’s        contentions,           he    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.                 Moreover, Oriakhi eventually filed his

motion      without      the       aid     of    a   transcript        and    was     able     to

adequately         articulate        his    claims.            While   Oriakhi       may     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     tolling.             See    Harris     v.    Hutchinson,       209     F.3d    325,

330-31      (4th     Cir.     2000)       (no    equitable        tolling      when      counsel

erroneously          advised         petitioner           as     to    the        statute      of

limitations); Jones v. Morton, 195 F.3d 153, 160 (3d Cir. 1999)

(misunderstanding             of    exhaustion         requirement        insufficient         to

excuse      failure         to     comply       with       statute     of         limitations).

Ironically,         Oriakhi’s        best       course      of     action     to     secure     a

transcript would have been to file a timely § 2255 motion and

then   apply       for   preparation            of   the       transcript     at    Government

expense.       See       28      U.S.C.     § 753(f)       (2006);     United        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

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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.         See United States v. Morris, 429 F.3d 65,

72     (4th   Cir.   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       on   the

foregoing, we affirm the district court’s order.                        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




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