Arnold J. White v. Clarence Jackson Edward Murray, and Commonwealth of Virginia

57 F.3d 1068, 1995 U.S. App. LEXIS 21873, 1995 WL 341577

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 6, 1995
• Docket: 95-6024
• Status: Published

Opinion

57 F.3d 1068
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Arnold J. WHITE, Petitioner-Appellant,
v.
Clarence JACKSON; Edward Murray, Respondents-Appellees,
and
COMMONWEALTH of Virginia, Respondent.

No. 95-6024.

United States Court of Appeals, Fourth Circuit.

Submitted: March 15, 1995.
Decided: June 6, 1995.

Arnold J. White, Appellant Pro Se. Katherine P. Baldwin, Office of the Attorney General of Virginia, Richmond, VA, for Appellees.

Before RUSSELL and WILLIAMS, Circuit Judges, and CHAPMAN, Senior Circuit Judge.

PER CURIAM:

Arnold J. White appeals from the district court's dismissal of his 28 U.S.C. Sec. 2254 (1988) petition. We dismiss.

White's petition was dismissed when White failed to respond to a court order. Although the district court warned White of the possibility of dismissal if he failed timely to respond, it is not clear that no less drastic sanction was available or that White had a history of dilatory litigation tactics. See Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.1989), cert. denied, 493 U.S. 1084 (1990).

Nonetheless, the dismissal was appropriate. All but one of the grounds brought by White in the current petition were not raised in his first state habeas petition. Thus, they were clearly procedurally barred, and this Court may apply the bar in the first instance. Coleman v. Thompson, 501 U.S. 722, 735 n.* (1991) (federal courts apply clear state procedural bars where state courts not given the opportunity to do so); Va.Code Ann. Sec. 8.01-654(B)(2) (Michie 1992) (claims not raised in first state habeas petition barred if supporting facts known at time of first petition). Further, the only non-barred claim was one regarding sentencing. Because White has served the sentence imposed, this claim is moot. Lane v. Williams, 455 U.S. 624, 631 (1982).

We therefore deny a certificate of probable cause to appeal and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the mate rials before the Court and argument would not aid the decisional process.

DISMISSED