United States v. Black

Fourth Circuit

United States v. Black

19 F. App'x 78

CourtCourt of Appeals for the Fourth Circuit

DecidedSeptember 19, 2001

Docket01-6540

StatusUnpublished

Cited by4 cases

This text of 19 F. App'x 78 (United States v. Black) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Black, 19 F. App'x 78 (4th Cir. 2001).

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Opinion

OPINION

PER CURIAM.

Roderick Black seeks to appeal the district court’s order denying his 28 U.S.C.A. § 2255 (West Supp.2001) motion as untimely. On appeal, Black contends the district court was obliged to consider his motion because the Supreme Court’s holdings in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999), and Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), render his motion timely, and *79 Black’s claim based on newly discovered evidence was brought with due diligence. For reasons stated herein, we deny a certificate of appealability and dismiss the appeal.

As a prehminary matter, Apprendi is not retroactively applicable to cases on collateral review. United States v. Sanders, 247 F.3d 139, 151 (4th Cir.2001). Additionally, the Supreme Court’s decision in Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998), which applied Bailey retroactively, preceded Black’s § 2255 motion by over one year. Consequently, Black’s motion is untimely as to these claims.

Finally, to the extent Black raises a timely challenge to his conviction under Richardson, we note the jury returned guilty verdicts as to several offenses that were listed in the indictment as predicate offenses to the continuing criminal enterprise for which he was convicted. Consequently, the district court’s alleged failure to give an instruction meeting the requirements of Richardson is harmless error. See United States v. Brown, 202 F.3d 691, 700 (4th Cir.2000) (citing United States v. Escobar-de Jesus, 187 F.3d 148, 162 (1st Cir.1999)). Finally, we find Black’s newly discovered evidence could have been presented earlier with the exercise of due diligence and thus is time-barred under § 2255.

Accordingly, we deny a certificate of appealability and dismiss Black’s 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.

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OPINION

PER CURIAM.

Roderick Black seeks to appeal the district court’s order denying his 28 U.S.C.A. § 2255 (West Supp.2001) motion as untimely. On appeal, Black contends the district court was obliged to consider his motion because the Supreme Court’s holdings in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999), and Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), render his motion timely, and *79 Black’s claim based on newly discovered evidence was brought with due diligence. For reasons stated herein, we deny a certificate of appealability and dismiss the appeal.

As a prehminary matter, Apprendi is not retroactively applicable to cases on collateral review. United States v. Sanders, 247 F.3d 139, 151 (4th Cir.2001). Additionally, the Supreme Court’s decision in Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998), which applied Bailey retroactively, preceded Black’s § 2255 motion by over one year. Consequently, Black’s motion is untimely as to these claims.

Finally, to the extent Black raises a timely challenge to his conviction under Richardson, we note the jury returned guilty verdicts as to several offenses that were listed in the indictment as predicate offenses to the continuing criminal enterprise for which he was convicted. Consequently, the district court’s alleged failure to give an instruction meeting the requirements of Richardson is harmless error. See United States v. Brown, 202 F.3d 691, 700 (4th Cir.2000) (citing United States v. Escobar-de Jesus, 187 F.3d 148, 162 (1st Cir.1999)). Finally, we find Black’s newly discovered evidence could have been presented earlier with the exercise of due diligence and thus is time-barred under § 2255.

Accordingly, we deny a certificate of appealability and dismiss Black’s 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.

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