Virgil Ira McClung Jr. v. William Smith, Warden, 19 F.3d 1429, 4th Cir. (1994)
Uploaded by
Scribd Government DocsVirgil Ira McClung Jr. v. William Smith, Warden, 19 F.3d 1429, 4th Cir. (1994)
Uploaded by
Scribd Government Docs19 F.
3d 1429
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unpublished dispositions is disfavored except for establishing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service of copies of cited unpublished dispositions of the Fourth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.
Virgil Ira McCLUNG, Jr., Petitioner Appellant,
v.
William SMITH, Warden, Respondent Appellee.
No. 93-6892.
United States Court of Appeals, Fourth Circuit.
Submitted March 8, 1994.
Decided March 17, 1994.
Appeal from the United States District Court for the District of Maryland,
at Baltimore. William M. Nickerson, District Judge. (CA-92-2536-WN)
Virgil Ira McClung, Jr., appellant pro se.
John Joseph Curran, Jr., Atty. Gen., Gary Eugene Blair, Office of the
Attorney General of Maryland, Baltimore, MD, for appellee.
D.Md.
DISMISSED.
Before PHILLIPS, MURNAGHAN and HAMILTON, Circuit Judges.
PER CURIAM:
Appellant seeks to appeal the district court's order denying relief on his 28
U.S.C. Sec. 2254 (1988) petition. 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 on the reasoning of the district court.*
McClung v. Smith, No. CA-92-2536-WN (D. Md. Aug. 16, 1993). 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
We note that the magistrate judge addressed the competency of Appellant's
representation by counsel on his first federal habeas corpus petition to
determine whether cause existed to excuse Appellant's failure to raise the
present claims in that first petition. See Jones v. Estelle, 722 F.2d 159, 167 (5th
Cir.1983), cert. denied, 466 U.S. 976 (1984). Nevertheless, it is now well
established that ineffective representation by counsel on an initial habeas
corpus petition, including the failure to raise an issue, may not serve as cause to
excuse the default. See Coleman v. Thompson, 59 U.S.L.W. 4789, 4797
(U.S.1991); Murray v. Carrier, 477 U.S. 478, 486-88 (1986); United States v.
MacDonald, 966 F.2d 854, 859 & n. 9 (4th Cir.), cert. denied, 61 U.S.L.W.
3400 (U.S.1992). Appellant failed to show cause for his default or that failure
to address the claims will result in a fundamental miscarriage of justice
