United States v. George McBride ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-6090
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GEORGE MCBRIDE, a/k/a Benzo,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Asheville. Martin K. Reidinger, Chief District Judge. (1:00-cr-00069-MR-3; 1:16-cv-
00201-MR)
Submitted: December 16, 2021 Decided: December 17, 2021
Before WYNN and RICHARDSON, Circuit Judges, and KEENAN, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Asheville, North Carolina for Appellant. Amy Elizabeth Ray, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
George McBride seeks to appeal the district court’s order dismissing as untimely
his 28 U.S.C. § 2255 motion. See Whiteside v. United States, 775 F.3d 180, 182-83 (4th
Cir. 2014) (en banc) (explaining that § 2255 motions are subject to one-year statute of
limitations, running from latest of four commencement dates enumerated in 28 U.S.C.
§ 2255(f)). The order is not appealable unless a circuit justice or judge issues a certificate
of appealability. 28 U.S.C. § 2253(c)(1)(B). A certificate of appealability will not issue
absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). When, as here, the district court denies relief on procedural grounds, the
prisoner must demonstrate both that the dispositive procedural ruling is debatable and that
the motion states a debatable claim of the denial of a constitutional right. Gonzalez v.
Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
McBride relied on the retroactively-applicable Johnson v. United States, 576 U.S.
591 (2015), in his § 2255 motion challenging his career offender status. However, as we
confirmed in United States v. Brown, 868 F.3d 297, 301 (4th Cir. 2017), Johnson dealt only
with the residual clause of the Armed Career Criminal Act (“ACCA”) and did not
recognize that other residual clauses similarly worded to the ACCA’s residual clause—like
the career offender guidelines—are unconstitutionally vague. 868 F.3d at 303.
Accordingly, under Brown’s framework, which is binding and unaltered by subsequent
case law, McBride did not assert a right newly recognized by the Supreme Court.
Therefore, his motion was not timely under § 2255(f)(3).
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Accordingly, we deny a certificate of appealability and dismiss the appeal. We
dispense with oral argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would not aid the decisional
process.
DISMISSED
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