United States v. Ray

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA,  Plaintiff-Appellee, v.  No. 00-7126 JOSEPH ALVIN RAY, Defendant-Appellant.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-95-89-1, CA-98-00256-1-1) Submitted: January 31, 2001 Decided: February 16, 2001 Before WIDENER, LUTTIG, and MICHAEL, Circuit Judges. Affirmed by unpublished per curiam opinion. COUNSEL Joseph Alvin Ray, Appellant Pro Se. Harry L. Hobgood, 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 Unpublished opinions are not binding precedent in this circuit.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. RAY OPINION PER CURIAM: Joseph Alvin Ray appeals the district court’s order accepting the magistrate judge’s report and recommendation and denying his motion under Fed. R. Civ. P. 60(b) for reconsideration of the order denying his 28 U.S.C.A. § 2255 (West Supp. 2000) motion. We affirm. To the extent that Ray’s Rule 60(b) motion is, in actuality, a second § 2255 motion, we find that the district court properly dismissed it as successive. To the extent that it is a true Rule 60(b) motion, we note that it was filed approximately a year and a half after the order it chal- lenges and thus appears untimely. Even assuming that it is timely, however, we are persuaded by the district court’s determination that the claims raised therein do not affect the integrity of the § 2255 pro- ceeding. Accordingly, we find no abuse of discretion in the district court’s order denying the motion. In his informal brief, Ray also argues, for the first time, that his case is affected by Apprendi v. New Jersey, 530 U.S. 466 (2000), which issued on June 26, 2000, approximately one month prior to the district court’s denial of his Rule 60(b) motion. Ray requests that this Court vacate the district court’s order and remand for re-sentencing under Apprendi. We decline to do so, finding this claim to be succes- sive. Accordingly, we affirm. We dispense with oral argument because the facts and legal contentions are adequately presented in the materi- als before the court and argument would not aid the decisional pro- cess. AFFIRMED