Charles Wharton, A/K/A Hillary Boyce v. Talmadge Barnett, Attorney General of North Carolina, 920 F.2d 927, 4th Cir. (1990)
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Scribd Government DocsCharles Wharton, A/K/A Hillary Boyce v. Talmadge Barnett, Attorney General of North Carolina, 920 F.2d 927, 4th Cir. (1990)
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Scribd Government Docs920 F.
2d 927
Unpublished Disposition
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unpublished dispositions is disfavored except for establishing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service of copies of cited unpublished dispositions of the Fourth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.
Charles WHARTON, a/k/a Hillary Boyce, Petitioner-Appellant,
v.
Talmadge BARNETT, Attorney General of North Carolina,
Respondents-Appellees.
No. 89-7199.
United States Court of Appeals,
Fourth Circuit.
Submitted Dec. 3, 1990.
Decided Dec. 13, 1990.
Appeal from the United States District Court for the Eastern District of
North Carolina, at Raleigh. Malcolm J. Howard, District Judge. (CA-89308-HC-H)
Charles Wharton, appellant pro se.
Clarence Joe DelForge, III, Office of the Attorney General of North
Carolina, Raleigh, N.C., for appellees.
E.D.N.C.
DISMISSED.
Before K.K. HALL, MURNAGHAN and WILKINSON, Circuit Judges.
PER CURIAM:
Charles Wharton seeks to appeal the district court's denial of habeas corpus
relief under 28 U.S.C. Sec. 2254. Wharton claimed that discrimination in
selection of his grand jury foreman violated equal protection and due process
and that his attorney was ineffective in failing to raise such a challenge.
2
We find that the rule of law asserted by Wharton (that discrimination in
selection of the foreman required dismissal of his indictment) was not dictated
or compelled by precedent existing at the time his conviction became final.
Under Teague v. Lane, 489 U.S. 288 (1989), the asserted rule cannot be applied
retroactively on collateral attack unless it places a class of private conduct
beyond the power of the state to proscribe or requires the court to observe
procedures essential to fundamental fairness, without which the likelihood of an
accurate conviction is seriously diminished. Because the rule asserted by
Wharton meets neither of these exceptions, it does not afford a basis for federal
habeas relief.
Moreover, based on this Court's recent decision in Felton v. Barnett, 912 F.2d
92 (4th Cir.1990), we find Wharton's challenge to discrimination in selection of
his foreman to be procedurally barred and further find his claim of ineffective
assistance without merit in that Wharton was not prejudiced by counsel's failure
to object to the selection of the foreman.
For these reasons, we deny a certificate of probable cause and dismiss the
appeal. We dispense with oral argument because the dispositive issues recently
have been decided authoritatively.
DISMISSED.
