46 F. 3d 1126 - Spain v. Warden of Greensville Correctional Center

46 F3d 1126 Spain v. Warden of Greensville Correctional Center

46 F.3d 1126

Luther Carter SPAIN, Jr., Petitioner--Appellant,
v.
WARDEN OF GREENSVILLE CORRECTIONAL CENTER, Respondent--Appellee.

No. 94-6783.

United States Court of Appeals, Fourth Circuit.

Submitted Nov. 17, 1994.
Decided Jan. 25, 1995.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Luther Carter Spain, Jr., Appellant Pro Se.

Katherine P. Baldwin, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, VA, for Appellee.

Before RUSSELL and MURNAGHAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

PER CURIAM:

1

Appellant seeks to appeal the district court's orders denying relief on his 28 U.S.C. Sec. 2254 (1988) petition and denying his "Motion for Reconsideration and Rehearing In Banc Pursuant F.R.A.P. 35(B)." Fed.R.Civ.P. 59 motion. Our review of the record and the district court's opinions discloses that this appeal is without merit. Accordingly, we deny a certificate of probable cause to appeal and dismiss the appeal on the reasoning of the district court.* Spain v. Warden, Greensville Correctional Ctr., No. CA-94-586-AM (E.D. Va. June 6 & 28, 1994). We deny Spain's motions to amend and to modify his sentence and 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.

2

DISMISSED.

*

We find the district court's failure to provide Appellant notice of the Appellee's summary judgment motion pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), was harmless. Appellant's motion for reconsideration was responsive to the Appellee's motion, and Respondents had provided the appropriate notice