United States v. William Duncan

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 1, 2022
• Docket: 21-6485
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-6485

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

WILLIAM THOMAS DUNCAN,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Mark S. Davis, Chief District Judge. (2:15-cr-00163-MSD-DEM-1; 2:19-cv- 00413-MSD-DEM)

Submitted: February 28, 2022 Decided: March 1, 2022

Before NIEMEYER, MOTZ, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Matthew Kyle Winchester, LAW OFFICES OF MATTHEW K. WINCHESTER, Atlanta, Georgia, for Appellant. Emily Rebecca Gantt, Assistant United States Attorney, Norfolk, Virginia, Aidan Taft Grano-Mickelsen, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia; for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

William Thomas Duncan appeals from the district court’s order dismissing his 28

U.S.C. § 2255 motion as untimely. We previously granted a certificate of appealability on

the following issues: (1) whether the district court erred in holding that Duncan's motion

to vacate his sentence, filed on August 9, 2019, was untimely under 28 U.S.C. § 2255(f)(4),

and (2) if so, whether Duncan is entitled to § 2255(a) relief based on a violation of Brady

v. Maryland, 373 U.S. 83 (1963). Finding that Duncan’s motion was untimely filed, we

affirm.

As is relevant to this appeal, “[a] 1-year period of limitation . . . shall run from . . .

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)(4). In order for

the limitations period to be reset under § 2255(f)(4), Duncan “must show the existence of

a new fact, while also demonstrating [that he] acted with diligence to discover the new

fact.” Anjulo-Lopez v. United States, 541 F.3d 814, 817 (8th Cir. 2008) (internal quotation

marks and citation omitted). The diligence required by § 2255(f)(4) must be reasonable,

not “maximum feasible diligence.” Wims v. United States, 225 F.3d 186, 190 n.4 (2d Cir.

2000).

Duncan asserts that the statute of limitations on his Brady claim should run from his

actual discovery of social workers’ notes of forensic interviews with witnesses in August

2018. With regard to the district court’s conclusion that the evidence in the social workers’

notes was produced in 2016 in the form of the actual witness interviews, Duncan asserts

on appeal only that the forensic interviews and the notes were materially different and that

2 the forensic interviews did not contain the social workers’ impressions of the interviews.

However, the Government correctly contends that this assertion is improperly raised for

the first time on appeal, and Duncan has not responded to or disputed this contention. See

United States v. Al-Hamdi, 356 F.3d 564, 568 n.4 (4th Cir. 2004) (noting that an “appellate

court will not consider an issue not raised in the court from which the appeal is taken”).

Duncan has abandoned any other arguments as to why the access to the forensic interviews

was insufficient to satisfy the Government’s Brady responsibilities by failing to raise them

on appeal. See Carter v. Lee, 283 F.3d 240, 252 n.11 (4th Cir. 2002) (“[T]his [c]ourt

normally views contentions not raised in an opening brief to be waived.”). As such, the

one-year statute of limitations began to run in 2016, and Duncan’s § 2255 motion was

untimely filed after the expiration of the limitations period.

Accordingly, we affirm the judgment of the district court. 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