Kessler v. Deeds ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 95-7664
FRANK E. KESSLER, JR.,
Petitioner - Appellant,
versus
GEORGE DEEDS, Warden, Keen Mountain Correc-
tional Center,
Respondent - Appellee.
Appeal from the United States District Court for the Western Dis-
trict of Virginia, at Roanoke. Jackson L. Kiser, Chief District
Judge. (CA-95-89-R)
Submitted: April 15, 1996 Decided: April 25, 1996
Before ERVIN and MOTZ, Circuit Judges, and CHAPMAN, Senior Circuit
Judge.
Dismissed by unpublished per curiam opinion.
Frank E. Kessler, Jr., Appellant Pro Se. Thomas Drummond Bagwell,
Assistant Attorney General, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant seeks to appeal the district court's order denying
relief on his 28 U.S.C. § 2254 (1988) petition. We have reviewed
the record and the district court's opinion accepting the recom-
mendation of the magistrate judge and find no reversible error.
Accordingly, we deny a certificate of probable cause to appeal and
dismiss the appeal substantially on the reasoning of the district
court. Kessler v. Deeds, No. CA-95-89-R (W.D. Va. Sept. 19, 1995).
We note that Appellant may have suggested in his state habeas
petition that his procedural default was due to attorney error.
However, we conclude that Appellant failed to bear his burden of
proving prejudice as a result of that error either in the state
court or in district court. See Murray v. Carrier, 477 U.S. 478(1986); United States v. Frady, 456 U.S. 152 (1982). Consequently,
his procedural default is not excused. 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
2