UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-6242

GEMINI BOYD, a/k/a Jaraun Boyd,

a/k/a Gemini,

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Richard L. Williams, Senior District Judge,

sitting by designation.

(CR-96-134, CA-01-59-3-W-V)

Submitted: July 19, 2002

Decided: August 22, 2002

Before MICHAEL and MOTZ, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion. 

COUNSEL

Gemini Boyd, Appellant Pro Se. Gretchen C.F. Shappert, Assistant

United States Attorney, Charlotte, North Carolina, for Appellee. 
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Gemini Boyd seeks to appeal the district court’s order denying his

motion filed under 28 U.S.C. § 2255 (2000). Boyd raises three issues

on appeal, contending that (1) he is entitled to relief under Apprendi

v. New Jersey, 530 U.S. 466 (2000); (2) he received ineffective assistance of counsel; and (3) the district court erred in finding that his

sentencing claim regarding drug quantity was considered and rejected

by this court on direct appeal. Finding no reversible error, we deny

a certificate of appealability and dismiss the appeal. 

First, we have clearly held that the rule announced in Apprendi is

not retroactively applicable to cases on collateral review. United

States v. Sanders, 247 F.3d 139, 151 (4th Cir.), cert. denied, 122 S.

Ct. 573 (2001). Accordingly, we find that the district court correctly

found that Boyd was not entitled to relief on this claim. 

In his second claim, Boyd claims that counsel was ineffective for

failing to request a special verdict form requiring the jury to determine whether he was guilty of conspiring to distribute cocaine powder or cocaine base. In support of this claim, Boyd relies on United

States v. Rhynes, 196 F.3d 207 (4th Cir. 1999) (holding that a defendant in a multi-drug conspiracy cannot receive a sentence exceeding

the statutory maximum applicable to the least-punished conspiracy of

which he might have been convicted), vacated in part on other

grounds, 218 F.3d 310 (4th Cir.) (en banc), and United States v.

Quicksey, 525 F.2d 337, 341 (4th Cir. 1975) (holding that resentencing was appropriate where it was impossible to determine from a general verdict form which of two separate statutes the jury found the

defendant guilty of violating). Although the Rhynes decision issued

while Boyd’s case was pending on direct appeal, we find that Boyd

cannot establish that counsel was ineffective for failing to argue this

issue on appeal because he fails to demonstrate prejudice under the

2 UNITED STATES v. BOYD
second prong of Strickland v. Washington, 466 U.S. 668, 694 (1984).

The record reveals that overwelming and essentially uncontroverted

evidence at trial demonstrated that Boyd was responsible for at least

1.5 kilograms of crack cocaine. See United States v. Bowens, 224 F.3d

302, 314-15 (4th Cir. 2000) (holding that, where there is overwhelming evidence that a defendant who trafficked in multiple drug types

trafficked primarily in the drug carrying the greater penalty, Rhynes

error will not be noticed), cert. denied, 532 U.S. 944 (2001). 

Finally, Boyd contends that the district court erred in finding that

his sentencing claim regarding drug quantity was considered and

rejected by this court on direct appeal. In his motion before the district court, Boyd claimed that the district court erred in not sentencing

him for a "cocaine-only conspiracy conviction" and thus violated the

holding in Rhynes. The district court construed this sentencing claim

as alleging that the sentencing court committed error in attributing the

quantity and type of cocaine to Boyd in calculating his sentence. The

court noted that this court considered and rejected Boyd’s claim

regarding the type and quantity of drugs attributable to him on direct

appeal and thus found that Boyd was barred from raising the claim

again on collateral review. We find that although Boyd did raise a

related sentencing claim, he did not raise a Rhynes-type claim on

direct appeal before this court. Nonetheless, Boyd may not now raise

such a claim on collateral review. Non-constitutional claims that

could have been raised on direct appeal and were not may not be

raised in a collateral proceeding under § 2255. Stone v. Powell, 428

U.S. 465, 477 n.10 (1976). 

For the reasons discussed above, 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. BOYD 3