917 F2d 22 McKinnon v. Cl Meeks

917 F.2d 22
Unpublished Disposition

Vincent C. McKINNON, Petitioner-Appellant,
C.L. MEEKS, Respondent-Appellee.

No. 90-7308.

United States Court of Appeals, Fourth Circuit.

Submitted Oct. 1, 1990.
Decided Oct. 26, 1990.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.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 Eastern District of North Carolina, at Raleigh. James C. Fox, Chief District Judge. (CA-89-848-HC)

Vincent C. McKinnon, appellant pro se.

Clarence Joe DelForge, III, Office of the Attorney General of North Carolina, Raleigh, N.C., for appellee.



Before DONALD RUSSELL and PHILLIPS, Circuit Judges, and BUTZNER, Senior Circuit Judge.


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Vincent C. McKinnon, a North Carolina prisoner proceeding pro se, appeals from the district court's order refusing habeas corpus relief pursuant to 28 U.S.C. Sec. 2254. McKinnon did not appeal his armed robbery conviction, but instead filed a "Motion for Appropriate Relief" in the state superior court in which he alleged racial discrimination in the selection of his grand jury foreman. The state court denied the motion and specifically stated that "the issue raised by the defendant is procedurally barred for the reason that he failed to raise this issue prior to his trial." The North Carolina Court of Appeals denied certiorari and a writ of mandamus. McKinnon then filed this 28 U.S.C. Sec. 2254 action in district court.


As the district court noted, McKinnon's claim is procedurally barred because the North Carolina Superior Court, which was the last state court to enter judgment in the case, explicitly relied on a state procedural bar in dismissing this same claim. See Felton v. Barnett, --- F.2d ----, No. 89-6684 (4th Cir. Aug. 30, 1990). We therefore do not reach the merits of McKinnon's claim that he was denied equal protection due to discrimination in the selection of his grand jury foreman because this claim has been procedurally defaulted and there is no showing of cause or prejudice. We also deny McKinnon's motion for appointment of counsel. 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.