NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________

No. 19-3933 __________

UNITED STATES OF AMERICA

v.

MARK MILLER, a/k/a Sharkey, Appellant __________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-07-cr-00663-001) Honorable Berle M. Schiller __________

Submitted Under Third Circuit L.A.R. 34.1(a) on November 20, 2020

Before: JORDAN, KRAUSE, and RESTREPO, Circuit Judges

(Opinion filed: December 7, 2020)

__________

OPINION* __________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. KRAUSE, Circuit Judge.

Mark Miller seeks to challenge a decade-old conviction based on new evidence

that the police officers involved in his arrest fabricated evidence and committed perjury

at the suppression hearing. Because Miller had reason to investigate the facts underlying

his claim well before this additional evidence came to light, it did not restart the clock for

him to file his motion to vacate, set aside, or correct his sentence under

.

We will therefore affirm the District Court’s dismissal of his motion as untimely.

A. Discussion1

Movants in federal custody2 have one year, starting from the latest of several

dates, to file a motion under

. Miller contends the relevant date is May

6, 2018, when one of his arresting officers provided an affidavit confirming that he and

others had lied about the circumstances of Miller’s arrest, because that is “the date on

which the facts supporting the claim”—that trial counsel was deficient for failing to

impeach the officers at the suppression hearing or otherwise uncover their lies—“could

have been discovered through the exercise of due diligence.”

(f)(4).

But this argument “confuse[s] the facts that make up his claim[] with evidence that might

support his claim[].” McAleese, 483 F.3d at 214; see id. at 216 n.13 (noting that our

1 The District Court had jurisdiction under

. We have jurisdiction under

(a) and exercise plenary review over the dismissal of a § 2255 motion as time-barred. See McAleese v. Brennan,

(3d Cir. 2007). 2 Because Miller is still serving a term of supervised release and therefore in federal “custody,” the District Court construed his petition for a writ of error coram nobis as a motion under § 2255, a decision not challenged on appeal. 2 habeas jurisprudence does not distinguish between “facts supporting the claim” in the

federal provision and “factual predicate of the claim,”

(d)(1)(D), in the

state provision). The “vital facts,”

, of the officers’ perjury and trial counsel’s

failure to expose it began to be available to Miller at the time of his 2008 suppression

hearing. At the latest, he was on notice of the alleged police misconduct on October 12,

2014, when FBI agents investigating the misconduct interviewed him about his arrest.

That means his deadline was, at the outside, one year from then given that was certainly a

“date on which the facts supporting the claim or claims presented could have been

discovered through the exercise of due diligence.”

(f)(4). This motion

was filed in 2019, well after that deadline passed.

Miller also urges, for the first time on appeal, that he is entitled to equitable

tolling, which requires a showing both “(1) that he has been pursuing his rights diligently,

and (2) that some extraordinary circumstance stood in his way and prevented timely

filing.” Sistrunk v. Rozum,

(3d Cir. 2012) (quoting Holland v. Florida,

(2010)). Where, as here, Miller had ample information to prompt

further investigation beyond contacting his appellate counsel and a public defender in

2016, he has “waited far too long to possibly claim that he has diligently pursued this

claim.”

Even assuming Miller had properly raised equitable tolling, he would not be

entitled to it.

As troubling as the officers’ misconduct during Miller’s arrest and prosecution is,

the relevant statutory and legal frameworks do not allow Miller to wait a decade to

challenge his tainted conviction.

3 B. Conclusion

For the foregoing reasons, we will affirm the District Court’s order.

4