Whether Lundy's 'total exhaustion rule' applies to Motions under 28 U.S.C. §2255

QUESTION(S) PRESENTED} mo 7 '. §mith's two casés (a new ‘charge and a supervised release revocation) . _. were based on the same conduct, sentenced together as consecutive ; sentences, and appealed at the same time; but, were issued separate.._ . "appeal numbers. Smith's §2255 motion wasruled as untimely because . . one’ appeal was disposed of a year earlier than the other, raising ; the following question: ; . ; So : ; I. Whether Lundy's "total exhaustion rule"* applies to . ; Motions under 28 U.S.C. §2255; and If so, was the’district | : i court in error’ to rule Smith's 2255 as untimely? . : F . : : a . : 4 . . . . ; With the upheaval of circuit precedent? wrought by this Court's : (Kisor? decision, was it error to not issue’a Certificate of Appeala. "ability on either of the following: : TT (a) Was Smith's counsel. constitutionally ineffective when "he failed to preserve, or even argue, the inchoate question . ' when counsel's contemporaries were challenging precedent in Oe multiple circuits?; or (b) Post Kisor, can guideline ; commentary be used to expand the pre 2023 Guideline text to . . include inchoate crimes as predicates for a career offender . . . . designation? — ; . . : Smith argued his first three claims were equitably tolled and : his last two claims. were timely brought under 28 U.S.C. §2255(£) (4). : . : I . Contrary to the record before the court, and without an evidentiary 1 ; ; hearing, Smith's arguments were denied because-he was not diligent, , prompting Smith to ask: , ; ot . III. Whether the. Eighth Circuit erred when they did not grant a certificate of appealability, or remand for an evidentiary . hearing on Smith's colorable diligence allegations? . : 1 ~ Rose vy Lundy, 455 U.S. 509 (1982) . So wo : 2Post ‘Kisor many circuits overturned their precedence on. including inchoate crimes as career : _° ‘offender predictes. See United States v-Nasir, 17 F. 4th 459 (3rd Cir. 2021) (en banc); ~ : + United States v Campbell, 22-F.4th 438 (4th Cir. 2022); United States v Havis, 927 F.3d 382 . ‘ . Cth Cir. 2019) (en banc); and United States v Dupree, 57 F.4th 1269 (Lith Cir, 2023) (en . . banc). See Also 2023 U.S.S.G. Améndment cycle where the Commission struck §4B1.1's Commentary and ‘inserted inchoate crimes in the list of Career Offender predicates. : : . 3 fx v Wilkie, 139 S. Ct: 2400 (2019) : Se . a