United States of America v. Akiaz Marqiez King

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
AKIAZ MARQIEZ KING,
Defendant-Appellant.
No. 21-35948
D.C. Nos. 3:20-cv-01685-MO
3:16-cr-00351-MO-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted October 19, 2022
Portland, Oregon
Before: BADE and SANCHEZ, Circuit Judges, and LEFKOW,** District Judge.
The question presented in the certificate of appealability issued by the
district court, see 28 U.S.C. § 2253(c)(2), is whether Defendant-Appellant Akiaz
King’s motion under 28 U.S.C. § 2255 to set aside his conviction based on
ineffective assistance of counsel is timely. We have jurisdiction under 28 U.S.C.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Joan H. Lefkow, United States District Judge for the
Northern District of Illinois, sitting by designation.
FILED
DEC 5 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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§§ 1291 and 2253(a). We review de novo the district court’s determinations that
the motion was untimely and that equitable tolling of the filing deadline was not
warranted. See United States v. Buckles, 647 F.3d 883, 887 (9th Cir. 2011).
1. The one-year filing deadline for King’s § 2255 motion began to run
on “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). “[T]o have the factual predicate for a habeas petition based on
ineffective assistance of counsel, a petitioner must have discovered (or with the
exercise of due diligence could have discovered) facts suggesting both
unreasonable performance and resulting prejudice.” Hasan v. Galaza, 254 F.3d
1150, 1154 (9th Cir. 2001). Here, the clock began when King knew or should have
known that his attorney incorrectly advised him that he would not have to register
as a sex offender under Oregon law if he pleaded guilty to a violation of 18 U.S.C.
§ 2421(a) for transportation of an individual in interstate commerce for purposes of
prostitution.
In July 2017, King acknowledged in his plea agreement that he “may be
required to register as a sex offender under state law” but that he “does not believe
he will be required to register and the government takes no position [on the issue].”
In February 2018, early in his term of supervised release, a probation officer
informed King that he was required to register as a sex offender under Oregon law.

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On March 12, 2018, King filed an action in an Oregon circuit court, seeking a
declaration that his conviction did not require sex-offender registration.1 In a letter
dated April 2, 2018, the Oregon Department of State Police informed King that he
was required to report as a sex offender under Oregon law. On August 28, 2018,
the Oregon circuit court ruled that Oregon law required sex-offender registration
for a violation of 18 U.S.C. § 2421(a) if committed in Oregon. King sought
appellate review, but the Oregon Court of Appeals affirmed and the Oregon
Supreme Court denied review, and judgment was entered on May 21, 2020. King
filed his § 2255 motion on September 29, 2020.
King was equipped with the factual predicate for an ineffective assistance of
counsel claim no later than August 28, 2018, when the Oregon circuit court ruled
against him. After that ruling, King was aware that his attorney was wrong, which
should have been no surprise given King’s acknowledgement of uncertainty in the
plea agreement, the probation officer’s instruction to register, and the state police’s
demand that he register. See Hasan, 254 F.3d at 1154 n.3 (noting in the context of
1 Shortly before initiating the state-court action, King filed an emergency motion to
prohibit the Probation Office from requiring him to register as a sex offender
unless and until a state court directed him to do so. The court directed Probation to
take no action against King for failure to register during the pendency of the state-
court litigation but took “no position on whether Mr. King is required to register by
state law.” This order had no bearing on the relevant question of when King
discovered that his attorney was wrong about Oregon’s sex offender registration
requirements.

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28 U.S.C. § 2244 motions that the limitations period begins with the discovery of
“facts,” not with recognition of “the legal significance of those facts”). King’s
§ 2255 motion, filed over two years after the Oregon circuit court’s ruling, was
therefore untimely. We are unpersuaded by King’s argument that the § 2255 filing
deadline did not begin to run until after he sought appellate review of the Oregon
circuit court’s ruling.
2. Equitable tolling of a filing deadline is available where a habeas
petitioner shows “(1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way and prevented timely filing.”
Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotations and citation
omitted). “This is a very high bar, and is reserved for rare cases.” Yow Ming Yeh
v. Martel, 751 F.3d 1075, 1077 (9th Cir. 2014). King does not clear that bar, for he
points to no extraordinary circumstance that prevented him from filing his petition
on time. Cf. Doe v. Busby, 661 F.3d 1001, 1010, 1015 (9th Cir. 2011) (applying
equitable tolling where petitioner was “deceived, bullied and lulled by an
apparently inept and unethical lawyer”). Thus, equitable tolling is unavailable.
AFFIRMED.

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