1 In the 2 United States Court of Appeals 3 for the Second Circuit 4 5 6 August Term, 2020 7 No. 19-4184-pr 8 9 WILEY MCCLOUD, 10 Petitioner-Appellant, 11 12 v. 13 14 UNITED STATES OF AMERICA, 15 Respondent-Appellee. 16 17 18 Appeal from the United States District Court 19 for the Western District of New York. 20 No. 6:19-cv-06544 — David G. Larimer, Judge. 21 22 23 SUBMITTED: FEBRUARY 1, 2021 24 DECIDED: FEBRUARY 9, 2021 25 Before: WALKER, RAGGI, and NARDINI, Circuit Judges.

Petitioner-Appellant Wiley McCloud appeals from a final order entered on November 22, 2019, in the United States District Court for the Western District of New York (David G. Larimer, J.), denying as untimely his motion for relief pursuant to 28 U.S.C. § 2255. McCloud argues that this Court’s recent decision in United States v. Townsend, 897 F.3d 66 (2d Cir. 2018), created a newly discovered fact that extended his filing deadline under § 2255(f)(4). We conclude that an intervening development in case law does not constitute a newly discovered “fact” within the meaning of § 2255(f)(4). We therefore AFFIRM the decision of the district court.

DANIELLE C. WILD, Rochester, New York, for Defendant-Appellant. TIFFANY H. LEE, Assistant United States Attorney, for James P. Kennedy Jr., United States Attorney for the Western District of New York, Buffalo, New York, for Appellee. WILLIAM J. NARDINI, Circuit Judge:

Petitioner-Appellant Wiley McCloud appeals from a final order entered on November 22, 2019, in the United States District Court for the Western District of New York (David G. Larimer, J.), denying as untimely his motion pursuant to 28 U.S.C. § 2255 for relief from a judgment of conviction for various drug and firearms crimes. McCloud’s conviction became final about ten years ago, making his § 2255 motion filed in 2019 well outside the one-year limitations period stated in 28 U.S.C. § 2255(f). McCloud now argues that this Court’s 2018 decision in United States v.

2 Townsend 1 creates a newly discovered fact that extended his filing deadline under § 2255(f)(4).

We write to explain that an intervening development in case law— here, a decision issued after a conviction but before the filing of a motion under § 2255—is not a newly discovered “fact” within the meaning of § 2255(f)(4). We therefore AFFIRM the decision of the district court. I. Background

A. McCloud’s conviction

On July 2, 2008, McCloud pled guilty, without a plea agreement, to possession with intent to distribute cocaine base, see 21 U.S.C. § 841(a); possession of a firearm in furtherance of that drug crime, see 18 U.S.C. § 924(c); and possession of a firearm by a convicted felon, see id. § 922(g)(1). McCloud’s criminal history then included two New York State convictions for drug offenses: a 1998 conviction for attempted criminal sale of a

1 897 F.3d 66 (2d Cir. 2018).

3 controlled substance in the third degree, and a 2000 conviction for criminal possession of a controlled substance in the fifth degree, with intent to sell (the “2000 New York Drug Conviction”). 2 Based on these convictions, the United States Probation Office recommended McCloud’s designation as a career offender under § 4B1.1 of the United States Sentencing Guidelines (“Guidelines”) and calculated an advisory range of 292-365 month