Arthur G. Bolding v. Parker Evatt State of South Carolina, 50 F.3d 5, 4th Cir. (1995)
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Scribd Government DocsArthur G. Bolding v. Parker Evatt State of South Carolina, 50 F.3d 5, 4th Cir. (1995)
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Scribd Government Docs50 F.
3d 5
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unpublished dispositions is disfavored except for establishing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service of copies of cited unpublished dispositions of the Fourth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.
Arthur G. BOLDING, Petitioner-Appellant,
v.
Parker EVATT; State of South Carolina, RespondentsAppellees.
No. 94-7251.
United States Court of Appeals, Fourth Circuit.
Submitted: February 16, 1995
Decided: March 16, 1995
Arthur G. Bolding, Appellant Pro Se.
Donald John Zelenka, Chief Deputy Attorney General, Columbia, SC, for
Appellees.
Before HAMILTON and MOTZ, Circuit Judges, and CHAPMAN, Senior
Circuit Judge.
PER CURIAM:
Appellant appeals from the district court's order dismissing his 28 U.S.C. Sec.
2254 (1988) petition. Our review of the record and the district court's opinion
discloses that this appeal is without merit. We note, however, that the district
court erroneously applied Boeckenhaupt v. United States, 537 F.2d 1182, 1183
(4th Cir.), cert. denied, 429 U.S. 863 (1976), to dismiss Appellant's sufficiency
of the evidence claim. We held in Boeckenhaupt that a federal prisoner moving
to vacate a conviction under 28 U.S.C. Sec. 2255 (1988) may not base a
collateral attack on an issue already decided on direct appeal absent an
intervening change in the law. This rule does not, however, apply to state
prisoners seeking a writ of habeas corpus under 28 U.S.C. Sec. 2254.
Accordingly, although the district court's reasoning was incorrect, we find that
the claim was properly dismissed because the evidence was sufficient to sustain
a conviction. That the jury chose to disbelieve Appellant's self defense theory is
not reviewable by this Court. See United States v. Saunders, 886 F.2d 56, 60
(4th Cir.1989).
2
For these reasons, we grant a certificate of probable cause to appeal and affirm
the district court's order dismissing Appellant's petition in all respects except
for the dismissal of Appellant's sufficiency of the evidence claim. We modify
the court's dismissal of that claim to reflect that it is dismissed as meritless. 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.
AFFIRMED AS MODIFIED
