                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 01-6023
MICHAEL CRANDALE WILLIAMS,
             Defendant-Appellant.
                                       
UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 01-6526
MICHAEL CRANDALE WILLIAMS,
             Defendant-Appellant.
                                       
           Appeals from the United States District Court
   for the Eastern District of North Carolina, at Elizabeth City.
                Malcolm J. Howard, District Judge.
                   (CR-95-9-H, CA-00-75-2-H)

                      Argued: February 28, 2003

                        Decided: June 9, 2003

      Before WIDENER and LUTTIG, Circuit Judges, and
          C. Arlen BEAM, Senior Circuit Judge of the
      United States Court of Appeals for the Eighth Circuit,
                     sitting by designation.



No. 01-6023 is affirmed and No. 01-6526 is dismissed by unpublished
per curiam opinion.
2                    UNITED STATES v. WILLIAMS
                             COUNSEL

ARGUED: Jeffrey Dean Dermer, UNIVERSITY OF VIRGINIA
SCHOOL OF LAW APPELLATE LITIGATION CLINIC, Char-
lottesville, Virginia, for Appellant. Anne Margaret Hayes, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee. ON
BRIEF: Neal L. Walters, UNIVERSITY OF VIRGINIA SCHOOL
OF LAW APPELLATE LITIGATION CLINIC, Charlottesville, Vir-
ginia, for Appellant. Frank D. Whitney, United States Attorney,
Raleigh, North Carolina, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   Michael Crandale Williams appeals the district court’s denial of his
various post-conviction motions and seeks a certificate of appeala-
bility (COA) pursuant to 28 U.S.C. § 2253 in this consolidated appeal.1
We affirm the district court’s judgment in the first appeal (number 01-
6023), and decline to issue the COA in the second appeal (number 01-
6526) and dismiss that appeal.

                                  I.

   Williams was convicted in 1995 of drug and firearm offenses and
sentenced to an aggregate thirty-two year term of imprisonment. He
appealed his conviction and sentence, and the case was remanded for
resentencing because the district court’s findings were inadequate
concerning the quantity of drugs involved in his offenses. United
    1
   The district court did not issue a COA in this matter and Williams
makes no express request for the issuance of a certificate. Thus, the
notice of appeal constitutes such a request. Fed. R. App. P. 22(b)(2).
                       UNITED STATES v. WILLIAMS                         3
States v. Williams, 152 F.3d 294 (4th Cir. 1998). At the hearing on
remand, the district court made additional findings and imposed the
same sentence, which action was affirmed on appeal. United States v.
Williams, No. 98-4908, 1999 WL 1028536 (4th Cir. Nov. 12, 1999).

    On August 3, 2000, Williams filed a pleading captioned "Civil
Action" and "Motion for Dismissal of Count One for Lack of Judicial
Jurisdiction Pursuant to the Supreme Court Ruling in Apprendi v.
New Jersey and Jones v. United States," setting forth the docket num-
ber of his criminal prosecution. The district court denied the motion
in a two paragraph order filed August 22, 2000. On September 11,
2000, Williams filed a "Motion to Alter or Amend Pursuant to Fed.
R. Cim. [sic] P. 59(e)." On November 8, 2000, while the purported
Rule 59(e) motion was still pending, Williams also filed what he
styled a section 2255 motion. See 28 U.S.C. § 2255. In December
2000, the district court denied the Rule 59(e) motion, referring to this
filing as a "successive motion under [28 U.S.C.] § 2255," which Wil-
liams had not obtained authorization to file. See 28 U.S.C. §§ 2244,
2255. Finally, in an order filed February 22, 2001, the district court
dismissed Williams’s third filing as an unauthorized successive sec-
tion 2255 motion. The district court noted that it had construed the
prior "Rule 59(e)" motion as a 2255 motion because it was filed more
than ten days after the August 22, 2000, judgment that it sought to
amend. The court stated, "it is clear that petitioner’s § 2255 motion
is his third bite at the apple." Williams filed a notice of appeal with
respect to all three2 of these rulings, and the appeals have been con-
solidated.

                                    II.

   At the outset, it is our duty, as an inferior federal court, to identify
the nature and extent of our subject matter jurisdiction. In a matter
such as this, the inquiry is made more complicated by the strictures
of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), PL 104-132, April 24, 1996. This is because Williams
  2
   Although Williams has filed only two notices of appeal, his first
notice of appeal covers both the August and December 2000 rulings by
the district court.
4                     UNITED STATES v. WILLIAMS
seeks to collaterally attack his final federal court judgment and sen-
tence through motions purportedly authorized by 28 U.S.C. § 2255.

   If Williams’s claims are actually governed by the AEDPA, he faces
two potential barriers to his quest for appellate review. First, as the
district court correctly noted, he must meet the requirements of 28
U.S.C. § 2255 for successive petitions. Second, he must acquire a
COA issued by a circuit justice or judge as specified in 28 U.S.C.
§ 2253. On the other hand, if the AEDPA does not apply to a particu-
lar claim, our jurisdiction is not limited by the terms of the Act. See,
e.g., United States v. Winestock, No. 02-6304, 2003 WL 1949822, at
*2 (4th Cir. Apr. 25, 2003) (noting the importance of determining
whether a motion following the denial of a section 2255 motion was
actually a Rule 60(b) motion or a successive 2255 motion, because
AEDPA’s jurisdictional limits are implicated in the latter, but not the
former). Accordingly, our determination of jurisdiction requires anal-
ysis of Williams’s various pleadings and the relief sought in each
instance.

   Williams’s initial district court motion requested a remedy based
upon the holdings in Apprendi v. New Jersey, 530 U.S. 466 (2000),
and Jones v. United States, 526 U.S. 227 (1999). However, subject to
possible exceptions not applicable in this case, our precedent indicates
that Apprendi relief is barred by Teague v. Lane, 489 U.S. 288 (1989),
when, as here, the judgment of conviction was final before the deci-
sion in Apprendi.3 This is because the rule announced in Apprendi,
based in part upon earlier rulings in Jones, is a new rule of constitu-
tional criminal procedure and does not apply "retroactively to cases
on [28 U.S.C. § 2255] collateral review." United States v. Sanders,
247 F.3d 139, 146 (4th Cir. 2001), cert. denied, 534 U.S. 1032 (2001)
(citing Teague, 489 U.S. 288). Thus, Williams’s proposed Apprendi
claim was not cognizable in the district court through a collateral
attack mounted pursuant to section 2255. See Winestock, 2003 WL
    3
   We concluded Williams’s direct appeal on November 12, 1999. He
apparently chose not to file a petition for writ of certiorari within the
ninety-day window provided by Supreme Court Rule 13(1). See Derman
v. United States, 298 F.3d 34, 39 (1st Cir.), cert. denied, 123 S. Ct. 636
(2002). The Apprendi ruling was announced by the Supreme Court on
June 26, 2000.
                       UNITED STATES v. WILLIAMS                         5
1949822, at *2 (noting the "longstanding practice of courts to classify
pro se pleadings from prisoners according to their contents, without
regard to their captions").

   Since Williams’s direct review process had long since ended, there
appears to have been no timely post-judgment motion that might have
been asserted by Williams to raise the Apprendi question. See, e.g.,
Fed. R. Crim. P. 33, 34. Accordingly, the district court’s summary
denial of Williams’s first motion was correct, but reviewable by this
court like any other non-AEDPA post-trial motion. The same is true
for the district court’s refusal to consider or find merit in Williams’s
purported Rule 59(e) motion, although its reasoning regarding the
successive petition issue was misplaced. We construe Williams’s sec-
ond filing as a motion to reconsider the earlier district court ruling and
reject it for the same reason that the earlier motion was unsound. In
sum, we see no impediment to our jurisdiction to summarily review
these two rulings. Upon doing so, we affirm the result reached by the
district court, although for reasons different than those stated by the
court.4

   We now turn to the third district court pleading filed by Williams
on November 8, 2000.5 Williams sought section 2255 review of sev-
eral issues, some repetitively asserted, through this filing. While the
reiteration of the Apprendi claim in this later motion fails, both proce-
durally and substantively for the reasons outlined above, we believe
that at least one of his assertions merits section 2255 analysis and
AEDPA-mandated COA consideration. This means that the district
court’s ruling that the third motion was a second or successive habeas
corpus application was error because, as we have explained, there had
  4
     Since neither filing was a section 2255 motion, Williams is not enti-
tled to reversal under United States v. Emmanuel, 288 F.3d 644, 649 (4th
Cir. 2002) (holding that district court must give petitioner notice and the
opportunity to object or amend prior to sua sponte construing mislabeled
filings as 2255 motions).
   5
     Williams additionally filed a motion to amend his November 2255
motion in December 2000, and the district court also denied the motion
to amend in the February 2001 order. Williams does not advance any
arguments on appeal with regard to the denial of the December motion
to amend.
6                      UNITED STATES v. WILLIAMS
been no previous, viable collateral review requests. We find, how-
ever, that this determination does not require a reversal or remand to
the district court. This is because we have limited, but sufficient,
jurisdiction to examine the merits of the COA request brought to us
by Williams through his notice of appeal.

   The Supreme Court has very recently instructed us on the proper
procedure to follow in a case such as this. Miller-El v. Cockrell, 123
S. Ct. 1029 (2003). Miller-El counsels that while we have no jurisdic-
tion to adjudicate the merits of an appeal of a section 2255 claim
without the issuance of a COA,6 we do have jurisdiction to conduct
a "threshold inquiry" to determine whether a COA should issue. Id.
at 1039. In other words, we have jurisdiction to determine our juris-
diction and this "requires an overview of [Williams’s] claims . . . and
a general assessment of their merits" under the standards established
in section 2253(c)(2). Id.

   An overview of Williams’s claims quickly leads us to the conclu-
sion that he cannot pass this COA test. In his section 2255 motion,
Williams’s first two grounds for relief are, as earlier indicated, repeti-
tive Apprendi claims and, as also previously stated, are not retroac-
tively cognizable under section 2255. Sanders, 247 F.3d at 146.
Grounds three and four allege deficiencies relating to a "use or carry"
of a firearm charge. However, in these assertions, Williams does not
allege the denial of a constitutional right. While section 2255 relief
is not limited to constitutional claims, the scope of review under sec-
tion 2253 is limited to cases in which the complainant can make a
"substantial showing of the denial of a constitutional right." 28 U.S.C.
§ 2253(c)(2). In ground five, Williams alleges a violation of Rule 10
of the Rules of Criminal Procedure, which is also not a constitutional
violation.

   In his final ground for relief, Williams alleges ineffective assis-
tance of trial counsel. While we do not review the merits of this
    6
   In his concurring opinion, Justice Scalia identified this circuit’s opin-
ion in Bates v. Lee, 308 F.3d 411 (4th Cir. 2002), cert. denied, 71
U.S.L.W. 3735 (2003), as an example of the practice of deciding appeals
without jurisdiction. Miller-El, 123 S. Ct. at 1046 n.* (Scalia, J., concur-
ring).
                     UNITED STATES v. WILLIAMS                     7
claim, we have perused the allegations in Williams’s petition and our
"general assessment" of the merits, Miller-El, 123 S. Ct. at 1039, is
that he cannot make a substantial showing of the denial of his Sixth
Amendment constitutional rights. Thus, we decline to issue a COA on
any of the issues properly raised in this motion.

                                III.

  For the foregoing reasons, we affirm the district court in appeal
number 01-6023. We decline to issue a COA in appeal number 01-
6526 and dismiss the appeal.

                                       AFFIRMED AND DISMISSED
