United States v. McBride

UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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