Francis Ian Tonner, Petitioner-appellant, v. Edward W. Murray, Director, Virginia Department Ofcorrections, Respondent-appellee, 7 F.3d 226 (4th Cir. 1993)
Annotate this CaseAppeal from the United States District Court for the Eastern District of Virginia, at Norfolk. J. Calvitt Clarke, Jr., Senior District Judge. (CA-91-660-2)
Francis Ian Tonner, Appellant Pro Se.
Janet Freed Rosser, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellee.
E.D. Va.
DISMISSED.
Before PHILLIPS and LUTTIG, Circuit Judges, and SPROUSE, Senior Circuit Judge.
PER CURIAM:
OPINION
Francis Ian Tonner seeks to appeal from the district court's order refusing habeas corpus relief pursuant to 28 U.S.C.s 2254 (1988). 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. Although we grant Tonner in forma pauperis status, we deny a certificate of probable cause to appeal and dismiss on the reasoning of the district court.* Tonner v. Murray, No. CA-91-660-2 (E.D. Va. Dec. 8, 1992). 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
The district court erred in adopting a portion of the magistrate judge's recommendation regarding Tonner's allegation of ineffective assistance of counsel. Tonner claimed that counsel was ineffective for advising him that no post-conviction relief was available. The magistrate judge found that Tonner had waived his right to appeal at the plea hearing. Tonner did not waive his right to appeal at the plea hearing. However, the claim is without merit because Tonner had a right to appeal only any as to jurisdictional defects. Beaver v. Commonwealth, 352 S.E.2d 342, 346 (Va. 1987), cert. denied, 483 U.S. 938 (1987). Tonner has not asserted any such defect, and we can find none in the record. Because he was not prejudiced by his counsel's error, Tonner fails to state a claim of ineffective assistance as to counsel's advice about the availability of a direct appeal. Strickland v. Washington, 466 U.S. 668, 694 (1984)
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