                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                            No. 02-7873
KEVIN MAURICE SMITH,
              Defendant-Appellant.
                                       
            Appeal from the United States District Court
       for the Middle District of North Carolina, at Durham.
             N. Carlton Tilley, Jr., Chief District Judge.
                      (CR-98-369, CA-01-665)

                      Submitted: May 27, 2003

                      Decided: June 12, 2003

   Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges.



Dismissed by unpublished per curiam opinion.


                            COUNSEL

Kevin Maurice Smith, Appellant Pro Se. A.J. Lang, OFFICE OF THE
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Unpublished opinions are not binding precedent in this circuit.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. SMITH
                              OPINION

PER CURIAM:

   Kevin Maurice Smith appeals the order of the district court adopt-
ing the report and recommendation of the magistrate judge and dis-
missing his motion under 28 U.S.C. § 2255 (2000), as untimely. An
appeal may not be taken to this court from the final order in a § 2255
proceeding unless a circuit justice or judge issues a certificate of
appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of appeala-
bility will not issue for claims dismissed by a district court solely on
procedural grounds unless the movant can demonstrate both "(1) ‘that
jurists of reason would find it debatable whether the petition [or
motion] states a valid claim of the denial of a constitutional right’ and
(2) ‘that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.’" Rose v. Lee, 252 F.3d 676,
684 (4th Cir.) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)),
cert. denied, 534 U.S. 941 (2001).

   In dismissing Smith’s motion, the district court properly relied on
this court’s ruling in United States v. Torres, 211 F.3d 836, 837 (4th
Cir. 2000). Torres, however, was subsequently overruled by Clay v.
United States, 123 S. Ct. 1072 (2003). Pursuant to Clay, it is now
clear that Smith’s convictions were not final until the ninety-day
period for filing a petition for a writ of certiorari had expired. See
Clay, 123 S. Ct. at 1079. Because Smith’s § 2255 motion was filed
within one year of the date his convictions became final, the motion
was timely filed. Thus, Smith has shown that the district court’s pro-
cedural ruling was debatable or wrong.* See Rose, 252 F.3d at 684.

   Although Smith satisfied the second prong of the Rose test, he has
failed to establish the first prong. Smith’s original § 2255 motion
raises a substantive claim under Apprendi v. New Jersey, 530 U.S.
466 (2000), as well as a related claim of ineffective assistance of
counsel. This court has previously held that Apprendi is not retroac-
tively applicable to cases on collateral review where, as here, the
Defendant did not raise an Apprendi-type claim at trial or on direct

   *We note that the district court did not have the benefit of Clay when
it issued its decision.
                       UNITED STATES v. SMITH                       3
appeal. See United States v. Sanders, 247 F.3d 139, 151 (4th Cir.),
cert. denied, 534 U.S. 1032 (2001). Further, counsel was not ineffec-
tive for failing to anticipate the Supreme Court’s Apprendi decision.
Accordingly, Smith’s § 2255 motion fails to state a debatable claim
of the denial of a constitutional right. See Rose, 252 F.3d at 684.

  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 the court
and argument would not aid the decisional process.

                                                         DISMISSED
