United States v. Herbert , 67 F. App'x 808 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-7349
TODD ANDREW HERBERT,
Defendant-Appellant.

On Remand from the United States Supreme Court.
(S. Ct. No. 01-10397)
Submitted: May 27, 2003
Decided: June 18, 2003
Before WILKINS, Chief Judge, and LUTTIG and
MOTZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
COUNSEL
Todd Andrew Herbert, Appellant Pro Se. Joseph William Hooge
Mott, Assistant United States Attorney, Roanoke, Virginia, for Appel-
lee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. HERBERT
OPINION
PER CURIAM:
This case is on remand from the United States Supreme Court for
"further consideration in light of Clay v. United States, 538 U.S. __[,
123 S. Ct. 1072] (2003)." Todd Andrew Herbert seeks to appeal the
district court’s order dismissing his motion under 28 U.S.C. § 2255(2000). In dismissing Herbert’s claim under United States v. Rhynes,
196 F.3d 207, 238-40 (4th Cir. 1999), vacated in part on other
grounds, 218 F.3d 310 (4th Cir. 2000), raised in his motion to amend
the § 2255 motion, the district court relied on this court’s ruling in
United States v. Torres, 211 F.3d 836, 837 (4th Cir.) (rev’d, Clay v.
United States, 123 S. Ct. 1072 (2003)), by finding the claim untimely
filed. Because Torres was overruled by Clay, it is now clear that Her-
bert’s conviction was not final until after the ninety-day period of
time for petitioning for a writ of certiorari had expired. See Clay, 123
S. Ct. at 1079. Herbert’s motion to amend his § 2255 motion was filed
within one year of his conviction becoming final. Accordingly, it was
timely filed, and the district court erred to the extent that it dismissed
Herbert’s Rhynes claim as untimely. As to the remaining claims dis-
posed by the district, we find no error. However, because Herbert
failed to make the appropriate showing, we deny a certificate of
appealability and dismiss the appeal.
An appeal may not be taken to this court from the final order in a
habeas corpus proceeding unless a circuit justice or judge issues a cer-
tificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate
of appealability will not issue for claims addressed by a district court
on the merits absent "a substantial showing of the denial of a constitu-
tional right." 28 U.S.C. § 2253(c)(2) (2000). A certificate of appeala-
bility will not issue as to claims dismissed by a district court solely
on procedural grounds unless the movant can demonstrate both "(1)
‘that jurists of reason would find it debatable whether the petition [or
motion] states a valid claim of the denial of a constitutional right’ and
(2) ‘that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.’" Rose v. Lee, 252 F.3d 676,
684 (4th Cir. 2001).
As to those claims dismissed by the district court on the merits, we
find Herbert fails to make "a substantial showing of the denial of a
UNITED STATES v. HERBERT 3
constitutional right." As to the Rhynes claim, which was dismissed
solely on procedural grounds, Herbert fails to show that counsel was
ineffective for failing to argue on appeal that the district court erred
by providing the jury with a general verdict form. "[T]he case law is
clear that an attorney’s assistance is not rendered ineffective because
he failed to anticipate a new rule of law." Kornahrens v. Evatt, 66
F.3d 1350, 1360 (4th Cir. 1995). Thus, Herbert cannot state a valid
claim of the denial of a constitutional right.
Accordingly, we deny a certificate of appealability and dismiss the
appeal. 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.
DISMISSED