Certiorari granted by Supreme Court, January 13, 2014 Vacated by Supreme Court, January 13, 2014

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-6929

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

JOSEPH K. NEWBOLD,

Defendant – Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:05-cr-00262-TDS-1; 1:08-cv-00698-TDS-PTS)

Submitted: October 30, 2012 Decided: December 11, 2012

Before KING and DIAZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Joseph K. Newbold, Appellant Pro Se. Michael Francis Joseph, Assistant United States Attorney, Randall Stuart Galyon, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Joseph K. Newbold appeals the district court’s order

accepting a magistrate judge’s recommendation and denying relief

on his

(West Supp. 2012) motion. By order

entered October 19, 2011, we denied a certificate of

appealability and dismissed all the claims Newbold raised on

appeal except his claim that his predicate convictions no longer

qualified him as an armed career criminal under the Armed Career

Criminal Act (“ACCA”),

(e) (2006), in light of

United States v. Simmons,

(4th Cir. 2011) (en

banc). We granted a certificate of appealability on the sole

issue of whether Newbold is entitled to habeas relief on his

ACCA sentence in light of Carachuri-Rosendo v. Holder,

(2010), as applied in Simmons. This appeal was

subsequently placed in abeyance for United States v. Powell, No.

11-6152, on the issue of whether Carachuri-Rosendo, as applied

in Simmons, is retroactively applicable to cases on collateral

review.

In United States v. Powell,

(4th

Cir. 2012), this court held that Carachuri-Rosendo announced a

procedural rather than a substantive rule, and therefore is not

retroactively applicable to cases on collateral review. Under

Powell, Carachuri-Rosendo and Simmons do not afford Newbold

habeas relief. Accordingly, we affirm the district court’s

2 order on this remaining claim. 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.

AFFIRMED

3