UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-7947

ANTHONY HAYNESWORTH,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Dennis W. Shedd, District Judge.

(CR-99-286-1, CA-01-436)

Submitted: April 25, 2002

Decided: May 14, 2002

Before WILKINS and MOTZ, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion. 

COUNSEL

Anthony Haynesworth, Appellant Pro Se. Jane Barrett Taylor,

OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South

Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 
OPINION

PER CURIAM: 

In 1999, Anthony Haynesworth was convicted for conspiracy to

possess with intent to distribute and to distribute cocaine base, in violation of 21 U.S.C.A. §§ 841, 846 (West 1999 & Supp. 2001). He was

sentenced to 375 months imprisonment, to be followed by five years

of supervised release. We affirmed his conviction. United States v.

Haynesworth, No. 99-4606 (4th Cir. July 21, 2000) (unpublished).

Haynesworth has now filed a motion for relief under 28 U.S.C.A.

§ 2255 (West Supp. 2001). The district court granted the Government’s motion for summary judgment. Haynesworth seeks to appeal

the district court order. Having considered his allegations, we affirm.

Haynesworth asserts that trial counsel rendered constitutionally

ineffective assistance in several instances. Having reviewed the

claims, we conclude they were properly dismissed as plainly without

merit, vague and lacking in specifics, or because Haynesworth made

no showing of prejudice as required to establish a claim of ineffective

assistance. Strickland v. Washington, 466 U.S. 668, 692 (1984). 

We decided Haynesworth’s appeal less than a month after the

Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466

(2000). Counsel for Haynesworth did not attempt to amend the appellate brief to assert an Apprendi claim. After our decision was issued,

when Haynesworth pointed out to counsel the possible relevance of

Apprendi, counsel advised that he did not believe that Apprendi

would affect Haynesworth’s case, but that the latter could file a pro

se petition for rehearing. No such petition was filed. 

Haynesworth asserts that he is entitled to relief under Apprendi and

that appellate counsel was ineffective for failing to raise the issue on

appeal. We conclude that Haynesworth may not successfully assert

claims based directly on Apprendi in his § 2255 motion. As he did not

preserve the claims at trial or on appeal, they are procedurally

defaulted. United States v. Sanders, 247 F.3d 139, 144-46 (4th Cir.),

cert. denied, ___ U.S. ___, 70 U.S.L.W. 3339 (U.S. Nov. 13, 2001)

(No. 01-6715). Ineffective assistance of counsel can constitute cause

which, along with prejudice, can excuse such a default. Burket v.

2 UNITED STATES v. HAYNESWORTH
Angelone, 208 F.3d 172, 189 (4th Cir.), cert. denied, 530 U.S. 1283

(2000). However, we conclude that in the time-frame at issue here,

counsel was not ineffective in failing to raise an Apprendi claim in the

context of a federal drug offense. Counsel could not have known

whether the claim would entitle Haynesworth to relief. See United

States v. McNamara, 74 F.3d 514, 516 (4th Cir. 1996) ("[A]n attorney’s failure to anticipate a new rule of law [is] not constitutionally

deficient."). Therefore, counsel’s conduct was not ineffective assistance of counsel that would, along with prejudice, excuse the procedural default, nor does it entitle him to relief as a Sixth Amendment

claim. 

As Haynesworth is entitled to no relief on his claims, the district

court did not err in denying his § 2255 motion. 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

UNITED STATES v. HAYNESWORTH 3