United States v. McBride , 32 F. App'x 108 ( 2002 )


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  •                           UNPUBLISHED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    Dismissed by unpublished per curiam opinion.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    Unpublished opinions are not binding precedent in this circuit.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