956 F2d 1162 Balka v. Murray

956 F.2d 1162

Kenneth Joseph BALKA, Petitioner-Appellant,
Edward MURRAY, Director of Virginia Department of
Corrections; Mary Sue Terry, Attorney General,

No. 91-6068.

United States Court of Appeals, Fourth Circuit.

Submitted Sept. 11, 1991.
Decided March 2, 1992.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.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. Jackson L. Kiser, District Judge. (CA-90-696-R)

Kenneth Joseph Balka, appellant pro se.

Linwood Theodore Wells, Jr., Assistant Attorney General, Richmond, Va., for appellees.



Before PHILLIPS, WILKINSON and WILKINS, Circuit Judges.



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Kenneth Joseph Balka seeks to appeal the district court's order refusing habeas corpus relief pursuant to 28 U.S.C. § 2254. 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 on the reasoning of the district court.* Balka v. Murray, CA-90-696-R (W.D.Va. Apr. 25, 1991). 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.




A state court conclusion that counsel rendered ineffective assistance "is not a finding of fact binding on the federal court." Strickland v. Washington, 466 U.S. 688, 698 (1984). The district court in this case recognized "the distinction between findings of fact that are entitled to the presumption of correctness and conclusions of law that may be considered anew. Although the district court states at one point that "a federal court is bound by the state court's finding as to the effectiveness of counsel," reading this statement in context it is clear that the court applied the correct rule of law