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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 01-6634 TOMMY LEE MCBRIDE, Defendant-Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Winston-Salem. Frank W. Bullock, Jr., District Judge. (CR-96-264, CA-00-239-1) Submitted: March 27, 2002 Decided: April 15, 2002 Before WIDENER, NIEMEYER, and MOTZ, Circuit Judges. Dismissed by unpublished per curiam opinion. COUNSEL Tommy Lee McBride, Appellant Pro Se. Paul Alexander Weinman, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). 2 UNITED STATES v. MCBRIDE OPINION PER CURIAM: Tommy Lee McBride seeks to appeal the district court’s order denying his motion filed under
28 U.S.C.A. § 2255(West Supp. 2001). He also seeks to appeal the magistrate judge’s denial of his motions to amend the § 2255 motion in light of Apprendi v. New Jer- sey,
530 U.S. 466(2000), and to expand the record. We have reviewed the record and the district court’s order accepting the recom- mendation of the magistrate judge and find no reversible error in the denial of § 2255 relief. In addition, we note that McBride failed to show cause and prejudice under United States v. Frady,
456 U.S. 152, 167-68 (1982), to excuse his failure to raise on direct appeal his claim under United States v. Rhynes,
196 F.3d 207(4th Cir. 1999), vacated in part on other grounds,
218 F.3d 310(4th Cir.) (en banc), cert. denied,
530 U.S. 1222(2000). Nor do we find any error in the magistrate judge’s denial of the motion to expand the record or the motion to amend. Even assuming that McBride’s Apprendi claims related back to the timely filing of his § 2255 motion, we have held that Apprendi does not apply retro- actively to cases on collateral review. United States v. Sanders,
247 F.3d 139, 151 (4th Cir.), cert. denied,
122 S. Ct. 573(2001). Accordingly, we deny a certificate of appealability and dismiss the appeal substantially on the reasoning of the district court and magis- trate judge. United States v. McBride, Nos. CR-96-264; CA-00-239-1 (M.D.N.C. filed Mar. 28, 2001; entered Mar. 29, 2001). We dispense with oral argument because the facts and legal contentions are ade- quately presented in the materials before the court and argument would not aid the decisional process. DISMISSED
Document Info
Docket Number: 01-6634
Citation Numbers: 32 F. App'x 108
Judges: Motz, Niemeyer, Per Curiam, Widener
Filed Date: 4/15/2002
Precedential Status: Non-Precedential
Modified Date: 10/19/2024