United States v. Ward , 52 F. App'x 624 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-7395
RONTHANY LEO WARD,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CR-98-132-A, CA-01-745-AM)
Argued: September 24, 2002
Decided: December 13, 2002
Before LUTTIG and TRAXLER, Circuit Judges, and
Norman K. MOON, United States District Judge
for the Western District of Virginia,
sitting by designation.
Dismissed by unpublished per curiam opinion.
COUNSEL
ARGUED: Christopher Dean Latsios, Fairfax, Virginia, for Appel-
lant. Roger Anthony Fairfax, Jr., Special Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alex-
andria, Virginia, for Appellee. ON BRIEF: Paul J. McNulty, United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.
2 UNITED STATES v. WARD
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellant, Ronthany Leo Ward, was indicted and convicted for his
involvement in an illegal conspiracy to sell and possess cocaine and
crack cocaine. The trial court sentenced him to two hundred forty-
eight (248) months’ imprisonment followed by a period of supervised
release. Thereafter, on direct appeal to this Court, appellant chal-
lenged his conviction and sentence on several grounds,* but not on
the grounds that the trial judge decided the drug quantities by a pre-
ponderance of the evidence rather than leaving that issue for the jury
to decide beyond a reasonable doubt. By an unpublished, per curiam
opinion, this Court affirmed appellant’s conviction and sentence. See
United States v. Pena, 213 F.3d 634, 2000 WL 541087 (4th Cir.
2000). Ward then appealed to the Supreme Court. The Supreme Court
denied appellant’s petition for certiorari on June 26, 2000, the same
day that the Court rendered its decision in Apprendi v. New Jersey,
530 U.S. 466 (2000). Then, appellant sought to apply retroactively the
holding in Apprendi and invalidate his conviction and sentence via a
motion in the district court to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255. Treating the motion as a petition for collat-
*On direct appeal, appellant challenged the following: (1) "the district
court’s refusal to give a requested jury instruction on the credibility of
cooperating government witnesses;" (2) "the district court’s decision to
admit into evidence a photographic chart depicting twenty-two purported
participants in the conspiracy;" (3) the district court’s denial of a motion
for a "mistrial because the prosecutor indirectly commented on [appel-
lant’s] failure to testify;" (4) "the district court’s decision to allow
Lamont Crumity to testify about Ward’s participation in the distribution
of crack cocaine prior to the charged date of the conspiracy;" and (5) the
district court’s decision "to allow a law enforcement officer to testify
about various incriminating items seized from Ward’s apartment during
the execution of a search warrant in July 1997." See United States v.
Pena, 213 F.3d 634, 2000 WL 541087, **2-5 (4th Cir. 2000).
UNITED STATES v. WARD 3
eral relief, the district court denied appellant’s motion as being proce-
durally barred. Ward now appeals that decision.
Without reaching the issue of whether Apprendi applies retroac-
tively to a case simultaneously decided by the Supreme Court, we
conclude that appellant is procedurally barred from bringing this
claim because he neither raised the claim on direct review, nor did he
show cause for his failure to do so.
This Court’s decision in United States v. Sanders, 247 F.3d 139(4th Cir. 2001), is controlling. Although a defendant may raise a
claim in habeas where he has procedurally defaulted by failing to
raise that claim on direct review, he must first demonstrate cause and
actual prejudice or that he is actually innocent of the crime charged.
See Bousley v. United States, 523 U.S. 614, 622 (1998); Sanders, 247
F.3d at 144. In this case, appellant has done neither. First, Ward did
not argue at either his original sentencing or on direct appeal that a
jury, not the trial judge, must determine beyond a reasonable doubt
the quantities of drugs for which he was responsible. Second,
although appellant does not argue this issue on appeal, we agree with
the district court’s finding that Ward had not shown cause why he did
not make this claim on direct review.
Therefore, Ward is procedurally barred from making this claim.
We deny the certificate of appealability and dismiss the appeal.
DISMISSED