Ronnie David Ashley, Petitioner-appellant, v. Warden, Augusta Correctional Center, Respondent-appellee, 948 F.2d 1280 (4th Cir. 1991)

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US Court of Appeals for the Fourth Circuit - 948 F.2d 1280 (4th Cir. 1991) Submitted Oct. 28, 1991. Decided Nov. 13, 1991

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Jackson L. Kiser, District Judge. (CA-90-700-R)

Ronnie David Ashley, appellant pro se.

Katherine Baldwin Toone, Office of the Attorney General of Virginia, Richmond, Va., for appellee.

W.D. Va.

DISMISSED.

Before ERVIN, Chief Judge, SPROUSE, Circuit Judge, and CHAPMAN, Senior Circuit Judge.

OPINION

PER CURIAM:


Ronnie David Ashley seeks to appeal the district court's order refusing habeas corpus relief pursuant to 28 U.S.C. § 2254 (1988). We dismiss the appeal.

A Virginia court convicted Ashley of robbery and use of a firearm. Evidence at trial established that he held a neighbor at gunpoint and took the neighbor's truck. Officers arrested Ashley shortly thereafter in the stolen truck with the gun. The district court granted the respondent's motion to dismiss.

Ashley first claimed that trial counsel was ineffective for failing to move to have the rifle tested for the fingerprints of the victim. Ashley alleged that the victim possessed the gun when he (Ashley) took the keys to the truck. The Virginia Supreme Court found that this claim was procedurally defaulted because Ashley failed to raise it in his first habeas petition. Ashley failed to show cause or prejudice for the default. Relief in federal court is therefore barred. See Wainwright v. Sykes, 433 U.S. 72 (1977).* 

We find no merit in Ashley's other three claims for the reasons stated by the district court. Ashley v. Warden, No. CA-90-700-R (W.D. Va. July 18, 1991). We deny a certificate of probable cause to appeal and 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.

 *

In addition, the district court properly found that there is no reasonable probability that the outcome of the trial would have been different if counsel had made the motion