NOT PRECEDENTIAL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, 2 020 )

__________ OPINION *

__________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

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 28 U.S.C. § 2255

. We will therefore affirm the District Court’s dismissal of his motion as untimely.
A. Discussion 1
Movants in federal custody 2 have one year , starting from the latest of several dates, to file a motion under 28 U.S.C. § 2255. Miller contends the relevant date is May 6, 2018, when one of his arrestin g officers provided an affidavit confirming that he and
others had lied about the circumstances of Miller’s arres t , because that is “ the date on which the facts supporting the claim ”

— that trial counsel was deficient for failing to impeach the officer s at the suppression hearing or otherwise uncover their lies

— “ could have been discovered through the exercise of due diligence

. ” 28 U.S.C. § 2255(f)(4)

. But t his 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 28 U.S.C. § 2255 . W e have jurisdiction under 28 U.S.C. § 2253(a) and exercise plenary revi ew over the d ismissal of a § 2255 motion as time

- barred

. See McAleese v. Brennan , 483 F.3d 206, 212 (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.3

habeas jurisprudence d oes not distinguish between “facts supporting the claim” in the federal provision and “ factual predicate of the claim , ” 28 U.S.C. § 2244(d)(1)(D) , in the state provision). The “vital facts,” id. at 214 , 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

. T hat means his deadline was, at the outside, on e 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

. ” 28 U.S.C. § 2255(f)( 4 ). This mo tion
was filed in 2019, well after that deadline passed.
Miller also urges , f

or 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 , 674 F.3d 181, 190 (3d Cir. 2012) (quoting Holland v. Fl orida , 560 U.S. 631, 649 (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.” Id. Even assumin g Miller had properly raised equitable tolling, he would not be
entitled to it.
As troubling as the officers ’ misconduct during Miller’s arrest and prosecutio n is , the relevant statutory and legal framework s do not allow Miller to wait a decade to challenge his tainted conviction

.4

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