Johnson v. Warden, Nottoway

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 31, 1996
• Docket: 96-6311
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 96-6311

KEITH TYRONE JOHNSON,

Petitioner - Appellant,

versus

WARDEN, NOTTOWAY CORRECTIONAL CENTER,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern Dis- trict of Virginia, at Richmond. Robert E. Payne, District Judge. (CA-95-577-3)

Submitted: July 23, 1996 Decided: July 31, 1996

Before WIDENER, NIEMEYER, and MICHAEL, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Keith Tyrone Johnson, Appellant Pro Se. John H. McLees, Jr., OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Appellant seeks to appeal the district court's order denying

relief on his petition brought under 28 U.S.C. § 2254 (1988), as amended by Antiterrorism and Effective Death Penalty Act of 1996,

Pub. L. No. 104-132, 110 Stat. 1217. We have reviewed the record

and the district court's opinion and find no error as to all but

one of Appellant's claims. Accordingly, we deny a certificate of

probable cause to appeal as to these claims; to the extent that a

certificate of appealability is required, we deny such a certifi- cate. We dismiss all but one of Appellant's claims on the reasoning of the district court. Johnson v. Warden, Nottoway, No. CA-95-577-3

(E.D. Va. Feb. 14, 1996).

The remaining claim alleged that Appellant was denied effec-

tive assistance of counsel because his trial attorney failed to have closing arguments transcribed and therefore may have impeded

his ability to bring a sufficiency of the evidence claim under

Virginia law. The Supreme Court of Virginia barred this claim under Penn v. Smyth, 49 S.E.2d 600 (Va. 1948), which requires that peti-

tions allege facts and not mere conclusions or opinions. Because

Appellant was not afforded the opportunity to particularize his

conclusory claim in state court, we reviewed the merits of the

claim.

We find, however, that a review on the merits does not entitle

Appellant to the relief he seeks. Taking the testimony presented at

trial in the light most favorable to the Government, a reasonable

fact finder could find Appellant guilty beyond a reasonable doubt.

2 See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (providing standard for a sufficiency of the evidence challenge). Accordingly,

Appellant has not demonstrated that his attorney's failure to

ensure transcription of the closing arguments resulted in any

prejudice. See Strickland v. Washington, 466 U.S. 668 (1984)

(providing standard for ineffective assistance of counsel claim).

Having thus disposed of all claims raised by the Appellant, we deny

a certificate of probable cause to appeal or, to the extent that

one is required, a certificate of appealability, and dismiss. 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