Arthur G. Bolding, Petitioner-appellant, v. Parker Evatt; State of South Carolina, Respondents-appellees, 50 F.3d 5 (4th Cir. 1995)

Appellant appeals from the district court's order dismissing his 28 U.S.C. § 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. § 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. § 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).

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