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

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-6540
RODERICK BLACK,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Elizabeth City.
Terrence W. Boyle, Chief District Judge.
(CR-94-15-BO, CA-01-2-2-BO)
Submitted: August 14, 2001
Decided: September 19, 2001
Before MOTZ and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
COUNSEL
Roderick Black, Appellant Pro Se. Fenita Morris Shepard, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BLACK
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 (2000), Richardson v. United States, 526 U.S.
813 (1999), and Bailey v. United States, 516 U.S. 137 (1995), render
his motion timely, and Black’s claim based on newly discovered evi-
dence was brought with due diligence. For reasons stated herein, we
deny a certificate of appealability and dismiss the appeal.
As a preliminary 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 (1998), which applied Bailey
retroactively, preceded Black’s § 2255 motion by over one year. Con-
sequently, Black’s motion is untimely as to these claims.
Finally, to the extent Black raises a timely challenge to his convic-
tion 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 con-
victed. 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