United States v. Ray

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-7126
JOSEPH ALVIN RAY,
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-95-89-1, CA-98-00256-1-1)
Submitted: January 31, 2001
Decided: February 16, 2001
Before WIDENER, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Joseph Alvin Ray, Appellant Pro Se. Harry L. Hobgood, 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Unpublished opinions are not binding precedent in this circuit.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. RAY
OPINION
PER CURIAM:
Joseph Alvin Ray appeals the district court’s order accepting the
magistrate judge’s report and recommendation and denying his
motion under Fed. R. Civ. P. 60(b) for reconsideration of the order
denying his 28 U.S.C.A. § 2255 (West Supp. 2000) motion. We
affirm.
To the extent that Ray’s Rule 60(b) motion is, in actuality, a second
§ 2255 motion, we find that the district court properly dismissed it as
successive. To the extent that it is a true Rule 60(b) motion, we note
that it was filed approximately a year and a half after the order it chal-
lenges and thus appears untimely. Even assuming that it is timely,
however, we are persuaded by the district court’s determination that
the claims raised therein do not affect the integrity of the § 2255 pro-
ceeding. Accordingly, we find no abuse of discretion in the district
court’s order denying the motion.
In his informal brief, Ray also argues, for the first time, that his
case is affected by Apprendi v. New Jersey, 530 U.S. 466 (2000),
which issued on June 26, 2000, approximately one month prior to the
district court’s denial of his Rule 60(b) motion. Ray requests that this
Court vacate the district court’s order and remand for re-sentencing
under Apprendi. We decline to do so, finding this claim to be succes-
sive.
Accordingly, we affirm. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED