United States v. Joseph Newbold ( 2012 )

Certiorari granted by Supreme Court, January 13, 2014
Vacated by Supreme Court, January 13, 2014
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6929
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSEPH K. NEWBOLD,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:05-cr-00262-TDS-1; 1:08-cv-00698-TDS-PTS)
Submitted: October 30, 2012 Decided: December 11, 2012
Before KING and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Joseph K. Newbold, Appellant Pro Se. Michael Francis Joseph,
Assistant United States Attorney, Randall Stuart Galyon, OFFICE
OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joseph K. Newbold appeals the district court’s order
accepting a magistrate judge’s recommendation and denying relief
on his 28 U.S.C.A. § 2255 (West Supp. 2012) motion. By order
entered October 19, 2011, we denied a certificate of
appealability and dismissed all the claims Newbold raised on
appeal except his claim that his predicate convictions no longer
qualified him as an armed career criminal under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e) (2006), in light of
United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en
banc). We granted a certificate of appealability on the sole
issue of whether Newbold is entitled to habeas relief on his
ACCA sentence in light of Carachuri-Rosendo v. Holder, 130 S.
Ct. 2577 (2010), as applied in Simmons. This appeal was
subsequently placed in abeyance for United States v. Powell, No.
11-6152, on the issue of whether Carachuri-Rosendo, as applied
in Simmons, is retroactively applicable to cases on collateral
review.
In United States v. Powell, 691 F.3d 554, 558-60 (4th
Cir. 2012), this court held that Carachuri-Rosendo announced a
procedural rather than a substantive rule, and therefore is not
retroactively applicable to cases on collateral review. Under
Powell, Carachuri-Rosendo and Simmons do not afford Newbold
habeas relief. Accordingly, we affirm the district court’s
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order on this remaining claim. 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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