United States District Court, D. Maryland
ROBERT G. BUNGER, JR., #54018-037
UNITED STATES OF AMERICA
Catherine C. Blake, United States District Judge.
Gordon Bunger, Jr.'s motion to vacate is briefed and
ready for disposition. No hearing is necessary to resolve
this case. Loc. Rule 105.6; see also Rule 8 of the
Rules Governing § 2255 Proceedings. For reasons to
follow, appointment of counsel will be denied, the motion will be
DENIED and DISMISSED as time-barred, and a certificate of
appealability will not issue.
March 22, 2012, Bunger pleaded guilty to producing child
pornography, in violation of 18 U.S.C. § 2251(a). On
September 20, 2012, he was sentenced in this court to 30
years of imprisonment. Bunger did not appeal.
11, 2017, Bunker filed a motion to vacate pursuant to 28
U.S.C. § 2255, received by the Clerk on May 15, 2017. ECF
46. On May 17, 2017, this court ordered respondent to file a
limited response addressing the timeliness of the motion, and
providing Bunger an opportunity to reply to the limited
response, in accord with Hill v. Braxton, 277 F.3d
701 (4th Cir. 2002). ECF 47. In response, the United States has
filed a motion to dismiss, arguing that Bunger's motion
to vacate was filed outside the one-year limitations period
and thus is time-barred. ECF 52. Bunger has failed to file a
reply showing why the motion is otherwise timely or subject
to statutory or equitable tolling.
One-Year Limitations Period
one-year statute of limitations applies to § 2255
petitions. See 28 U.S.C. § 2255(f). The
limitations period runs from the latest of: (1) the date on
which the judgment of conviction becomes final; (2) the date
on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws
of the United States is removed, if the movant was prevented
from making a motion by such governmental action; (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.
Id. The one-year period may be equitably tolled.
See Whiteside v. United States, 775 F.3d 180, 184-85
(4th Cir. 2014) (en banc) (noting equitable tolling of the
one-year limitation period in 28 U.S.C. §2255 is
appropriate in “rare instances”) (quoting
Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en
states the deadline for Bunger to file a notice of appeal
expired on November 24, 2012, 14 days after entry of the
judgment, pursuant to Fed. R. App. P. 4(b)(1)(A). No appeal
was filed. Because Bunger did not note an appeal, his
one-year limitations period started to run on that day,
November 24, 2012. ECF No. 52.
is correct. Finality for the purpose of 28 U.S.C.
§2255(f)(1) attaches when the United States Supreme
Court “affirms a conviction on the merits on direct
review or denies a petition for a writ of certiorari, or when
the time for filing a certiorari petition expires, ”
Clay v. United States, 537 U.S. 522, 527-28 (2003).
Bunger did not file an appeal; thus, his conviction became
final 14 days after entry of judgment when the time for
filing a notice of appeal expired. See Id. at 527;
United States v. Wilson, 256 F.3d 217, 221 (4th Cir.
2001); see also Fed. R. App. P. 4(b)(1)(A)
(providing fourteen days to file an appeal). Under the facts
presented here, Bunger's limitations period started to
run on November 24, 2012, and expired one year later on
November 24, 2013. When Bunger filed the motion to vacate on
May 11, 2017, some 41 months had already elapsed since the
expiration of the one-year limitations period. Accordingly,
the motion was untimely filed.
motion, Bunger claims that counsel and the court reneged on
the sentence to be imposed under the plea agreement and that
counsel told Bunger he had no grounds for appeal. ECF No. 46.
Bunger, however, was aware of these alleged deficiencies no
later than the time of his sentencing. Thus, these arguments
do not provide a basis for extending the running of the
one-year limitations period under 28 U.S.C. §2255(f)(4).
See Whiteside, 775 F.3d at 183-87. “Time
begins when the prisoner knows (or through diligence could
discover) the important facts, not when the prisoner
recognizes their legal significance.” Id. at
184 (quoting Owens v. Boyd, 235 F.3d 356, 359 (7th
Cir. 2000)). Bunger is complaining about facts that were
known to him at sentencing or shortly thereafter, and fails
to allege any new fact that would allow him to benefit from
§2255(f)(4). Consequently, Bunger may not rely on 28
U.S.C. §2255(f)(4) to set the date for running the
one-year limitations period.
Motion to Vacate was untimely filed and must be dismissed
unless principles of equitable tolling apply. See Holland
v. Florida, 560 U.S. 631, 649-54 (2010); Rouse v.
Lee, 339 F.3d 238, 246-47 (4th Cir. 2003) (en
banc). “[T]o be entitled to equitable tolling, an
otherwise time-barred petitioner must present (1)
extraordinary circumstances, (2) beyond his control or
external to his own conduct, (3) that prevented him from
filing on time.” United States v. Sosa, 364
F.3d 507, 512 (4th Cir. 2004) (quotation marks omitted);
Holland, 560 U.S. at 649-54. A petitioner is
entitled to equitable tolling if he demonstrates that he has
been pursuing his rights diligently, and an extraordinary
circumstance stood in his way and prevented timely filing.
Id.; Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005);
see also United States v. Prescott, 221 F.3d 686,
688 (4th Cir. 2000) (noting equitable tolling is
“sparingly granted”). “An inmate asserting
equitable tolling ‘bears a strong burden to show
specific facts' that demonstrate he fulfills both
elements of this test.” Smith v. Virginia,
Civ. No. 3:12-CV-148, 2013 WL 871519, at *3 (E.D.Va. Mar. 8,
2013) (quoting Yang v. Archuleta, 525 F.3d 925, 928
(10th Cir. 2008) (internal quotation marks omitted)).
offers no evidence to show that extraordinary circumstances
prevented him from timely filing his motion. He does not show
he was prevented from asserting his claims by wrongful
conduct on the part of the government or by an extraordinary
circumstance beyond his control that made it impossible for
him to timely file his claims. Further, Bunger's lack of
familiarity with the legal process does not constitute a
basis for equitable tolling. Sosa, ...