
    UNITED STATES of America, Plaintiff-Appellee, v. Kevin Maurice SMITH, Defendant-Appellant.
    No. 02-7873.
    United States Court of Appeals, Fourth Circuit.
    Submitted May 27, 2003.
    Decided June 12, 2003.
    Kevin Maurice Smith, Appellant Pro Se. A.J. Lang, Office of the United States Attorney, Greensboro, North Carolina, for Appellee.
    Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges.
    Dismissed by unpublished PER CURIAM opinion.
   OPINION

PER CURIAM.

Kevin Maurice Smith appeals the order of the district court adopting the report and recommendation of the magistrate judge and dismissing 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 appealability 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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)), cert. denied, 534 U.S. 941, 122 S.Ct. 318, 151 L.Ed.2d 237 (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, 537 U.S. 522, 123 S.Ct. 1072, 155 L.Ed.2d 88 (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 procedural 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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), as well as a related claim of ineffective assistance of counsel. This court has previously held that Apprendi is not retroactively applicable to cases on collateral review where, as here, the Defendant did not raise an Apprendi-type claim at trial or on direct appeal. See United States v. Sanders, 247 F.3d 139, 151 (4th Cir.), cert. denied, 534 U.S. 1032, 122 S.Ct. 573, 151 L.Ed.2d 445 (2001). Further, counsel was not ineffective 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. 
      
       We note that the district court did not have the benefit of Clay when it issued its decision.
     