Joseph Jefferson, Petitioner-appellant, v. John B. Taylor; Attorney General of Virginia, Respondents-appellees, 898 F.2d 145 (4th Cir. 1990)

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U.S. Court of Appeals for the Fourth Circuit - 898 F.2d 145 (4th Cir. 1990) Submitted: Nov. 30, 1989. Decided: March 5, 1990. Rehearing Denied March 22, 1990

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. David G. Lowe, United States Magistrate. (C/A No. 88-598-R)

Joseph Jefferson, appellant pro se.

Linwood Theodore Wells, Jr., Assistant Attorney General, for appellees.

E.D. Va.


Before WILKINSON and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge.


Joseph Jefferson appeals the dismissal of his 28 U.S.C. § 2254 petition. Our review of the record discloses that this appeal is without merit. We affirm the denial of relief on the reasoning of the magistrate, Jefferson v. Taylor, C/A No. 88-598-R (E.D. Va. May 22, 1989), with one exception. Contrary to the magistrate, we think Jefferson's ineffective assistance of counsel claim was not subject to procedural bar. Consequently, we will consider the merits of the claim.

Jefferson claimed that his counsel's failure to call a particular witness, Melvin Moss, constituted ineffective counsel. However, Jefferson has failed to show that had this witness testified the result would have been different. Strickland v. Washington, 466 U.S. 668 (1984). Rather, because the choice not to call Moss appeared to be a reasoned and tactical one, Jefferson's claim of ineffective counsel is without merit. See Goodson v. United States, 564 F.2d 1071, 1072 (4th Cir. 1977). Accordingly, we affirm the denial of relief. 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.