14 F.3d 595
Jerry Lee MITCHELL, Petitioner-Appellant,
Kenneth L. OSBORNE, Warden; Attorney General of the
Commonwealth of Virginia, Respondents-Appellees.
United States Court of Appeals, Fourth Circuit.
Dec. 9, 1993.
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Appeal from the United States District Court for the Western District of Virginia, at Roanoke.
Jerry Lee Mitchell, Appellant Pre Se.
Oliver Lewis Norrell, III, Assistant Attorney General, for Appellees.
Before PHILLIPS, MURNAGHAN, and NIEMEYER, Circuit Judges.
Appellant seeks to appeal the district court's order denying relief on his 28 U.S.C. Sec. 2254 (1988) petition. Our review of the record and the district court's opinion discloses that this appeal is without merit. Accordingly, we deny a certificate of probable cause to appeal and dismiss the appeal substantially on the reasoning of the district court.* Mitchell v. Osborne, No. CA-92-683-R (W.D. Va. June 1, 1993). 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.
Mitchell's first claim included a challenge to his conviction under the Double Jeopardy Clause and under state law. His federal claim is barred for the reasons stated by the district court. However, his state law challenge is procedurally barred under Va.Code Ann.Sec. 8.01-654(B)(2) (Michie 1993) because Mitchell failed to include it in his first state habeas petition