                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 13-6556


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DANIEL R. SAWYER,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., District Judge. (3:05-cr-00229-RJC-1; 3:12-cv-00193-RJC)


Submitted:   October 30, 2013              Decided:   January 21, 2014


Before KEENAN, WYNN, and FLOYD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Daniel R. Sawyer, Appellant Pro Se.       Melissa Louise Rikard,
Assistant United States Attorney, Kevin Zolot, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Daniel       Sawyer      appeals       the        district          court’s      order

dismissing his 28 U.S.C. § 2255 (2012) motion as untimely.                                           In

his   § 2255       motion,       Sawyer    argued          that     he          was     erroneously

sentenced     as    a     career    offender         in    light       of       our    decision      in

United    States     v.     Simmons,      649       F.3d    237    (4th          Cir.      2011)    (en

banc).     Although all parties agree that Sawyer’s § 2255 motion

was   filed    outside      of     the   one-year          statute      of       limitations        in

§ 2255(f)(1), Sawyer argued that his motion was timely under

§ 2255(f)(3) or (f)(4) because he filed it within one year of

Simmons.       It    is    undisputed      that,          had    the    rule          announced      in

Simmons been the law when Sawyer was sentenced, he could not

have been sentenced as a career offender.                              Having reviewed the

parties’ supplemental briefs filed in light of United States v.

Miller,    735      F.3d    141,    146-47      (4th       Cir.    2013)          (holding         that

Simmons announced new substantive rule retroactively applicable

to    cases    on       collateral       review),          we     decline             to    issue     a

certificate of appealability and dismiss the appeal.

              Sawyer       may   not     appeal       the       district          court’s      order

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 procedural

                                                2
grounds, the movant 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 v. McDaniel, 529 U.S. 473, 484 (2000).                      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).

              The Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA) provides that a one-year statute of limitations

applies to the filing of § 2255 motions, and, as relevant here,

the statutory limitations period runs 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

            (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. § 2255(f).

              We conclude that Sawyer’s § 2255 motion is not timely.

It is undisputed that Sawyer’s motion was filed more than one

                                             3
year after the entry of judgment.                Sawyer may not avail himself

of § 2255(f)(3) because Simmons is not a decision of the United

States Supreme Court.             Lastly, the decision in Simmons is not a

fact for purposes of § 2255(f)(4) because it is not a legal

decision      that    occurred      in   Sawyer’s      own     case.    See    Lo   v.

Endicott, 506 F.3d 572, 575 (7th Cir. 2007); Shannon v. Newland,

410 F.3d 1083, 1088-89 (9th Cir. 2005). *

              Sawyer’s main contention is that he is entitled to

equitable tolling.          See United States v. Prescott, 221 F.3d 686,

687-88 (4th Cir. 2000).             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.”       Holland    v.

Florida,      560    U.S.   631,    ___,   130    S.     Ct.    2549,   2562   (2010)

(internal quotation marks omitted); United States v. Sosa, 364

F.3d 507, 512 (4th Cir. 2004).                 Although Sawyer has diligently

pursued his claims post-Simmons, he has not demonstrated any




     *
       We observe that Sawyer stands in a similar procedural
posture as the defendant in Miller, who also filed a motion
under §2255 based on Simmons more than one year after his
conviction became final.    See 735 F.3d at 43.      However, in
contrast to Miller, the government has not waived the statute of
limitations issue.    Cf. id.   Instead, the government asserts
that the one-year statute of limitations precludes the relief
Sawyer seeks in this case.



                                           4
extraordinary circumstances warranting equitable tolling of the

AEDPA’s one-year statute of limitations.

           Accordingly, we deny a certificate of appealability,

deny Sawyer’s motion for stay and remand, deny Sawyer’s 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




                                       5
