NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.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 Virginia, at Norfolk. J. Calvitt Clarke, Jr., Senior District Judge. (CA-91-810-2)
Joseph Lonnie Gregory, Appellant Pro Se.
Richard Bain Smith, Assistant Attorney General, Richmond, Virginia, for Appellee.
E.D.Va.
DISMISSED.
Before WIDENER, WILKINS, and NIEMEYER, Circuit Judges.
PER CURIAM:
Joseph Lonnie Gregory seeks to appeal the district court's order refusing habeas corpus relief pursuant to 28 U.S.C.s 2254 (1988). Our review of the record and the district court's opinion accepting the recommendation of the magistrate judge discloses that this appeal is without merit. Accordingly, we deny a certificate of probable cause to appeal and dismiss the appeal.* Gregory v. Murray, No . CA-91- 810-2 (E.D. Va. Mar. 18, 1992). 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
With the exception of Gregory's Claim 5, we dismiss on the reasoning of the district court. The district court concluded that Gregory had failed to raise Claim 5 in his state habeas petitions, but that dismissal of the claim on the basis of procedural default was appropriate because if Gregory attempted now to raise the claim in a state petition, the Virginia Supreme Court would deny the petition on the basis of Va. Code Ann.s 8.01-654(B)(2) (Michie 1984). However, Gregory had asserted this claim in his second state habeas petition and on this record it does not appear that the Virginia Supreme Court relied upon a procedural bar to deny the claim. Therefore, this Court considered the merits of the claim but we find that the state trial court sustained Gregory's suppression motion and, therefore, no basis for habeas relief exists