United States v. McBride

32 F. App'x 108

Opinion

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 Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and to expand the record. We have reviewed the record and the district court’s order accepting the recommendation 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. 152,167-68,102 S.Ct. 1584, 71 L.Ed.2d 816 (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, 120 S.Ct. 2234, 147 L.Ed.2d 263 (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 retroactively to cases on collateral review. United States v. Sanders, 247 F.3d 139, 151 (4th Cir.), cert. denied, — U.S.-, 122 S.Ct. 573, 151 L.Ed.2d 445 (2001).

Accordingly, we deny a certificate of appealability and dismiss the appeal substantially on the reasoning of the district court and magistrate 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 adequately presented in the materials before the court and argument would not aid the decisional process.

DISMISSED.