Scott v. United States

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 98-7776

ROBERT VAN SCOTT,

Plaintiff - Appellant,

versus

UNITED STATES OF AMERICA,

Defendant - Appellee.

Appeal from the United States District Court for the Western Dis- trict of North Carolina, at Shelby. Lacy H. Thornburg, District Judge. (CR-95-3-3, CA-98-212-4)

Submitted: March 9, 1999 Decided: May 27, 1999

Before NIEMEYER, HAMILTON, and MOTZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Robert Allen Ratliff, Cincinnati, Ohio, for Appellant. Deborah Ann Ausburn, Assistant United States Attorney, Asheville, North Caro- lina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Robert Van Scott seeks to appeal the district court’s order

denying his motion filed under 28 U.S.C.A. § 2255 (West 1994 &

Supp. 1998) as barred by the one-year statute of limitations. We

have reviewed the record and the district court’s opinion and find

no reversible error. Accordingly, we deny a certificate of appeal-

ability and dismiss the appeal on the reasoning of the district

court. See Scott v. United States, CR-95-3-3; CA-98-212-4 (W.D.N.C.

Oct. 26, 1998). Scott’s conviction became final no later than De-

cember 23, 1996, the last day on which Scott could have petitioned

the Supreme Court for a writ of certiorari. He did not file the

§ 2255 motion until October 2, 1998, more than one year after his

conviction became final. Even if the Government’s filing of a Fed.

R. Crim. P. 35(b) motion tolled the limitations period until entry

of the amended judgment, Scott’s § 2255 motion was still untimely.

We dispense with oral argument because the facts and legal conten-

tions are adequately presented in the materials before the court

and argument would not aid the decisional process.

DISMISSED