United States of America v. William Thomas Duncan

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

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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

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