Levi v. King , 10 F. App'x 219 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
TIMOTHY J. LEVI, 
Petitioner-Appellant,
v.
RONALD L. KING, Warden; ATTORNEY  No. 00-7362
GENERAL OF THE COMMONWEALTH OF
VIRGINIA,
Respondents-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-98-1219-AM)
Submitted: May 15, 2001
Decided: June 1, 2001
Before WILKINS, LUTTIG, and MOTZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
COUNSEL
Timothy J. Levi, Appellant Pro Se. Robert H. Anderson, III, OFFICE
OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Vir-
ginia, for Appellees.
2 LEVI v. KING
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Timothy Levi appeals the district court’s order denying relief on
his petition filed under 28 U.S.C.A. § 2254 (West 1994 & Supp.
2000). In that petition, Levi raised both his trial counsel’s and appel-
late counsel’s alleged ineffectiveness as a basis for challenging the
validity of his detention. However, for the following reasons, we dis-
miss Levi’s appeal.
First, Levi’s claim that his trial counsel was ineffective for failing
to explore whether the investigating officer lied about the existence
of a photograph of the crime scene is procedurally barred. As a gen-
eral matter, a habeas petitioner may obtain habeas corpus relief under
§ 2254 only if he has first exhausted the remedies available to him in
state court by raising his claims before the highest state court with
jurisdiction to consider them. See § 2254(b)(1)(A). Because Levi
failed to raise this ineffective assistance of counsel claim in either of
his state habeas petitions, he is precluded from raising this ineffective
assistance of counsel claim in federal court. See Murray v. Carrier,
477 U.S. 478, 489 (1986); Mackall v. Angelone, 131 F.3d 442, 446
n.9 (4th Cir. 1998) (en banc).
Second, although the district court did not address Levi’s ineffec-
tive assistance of counsel claim predicated on his appellate counsel’s
alleged failure to pursue a discretionary appeal to the Supreme Court
of Virginia, we find that neither the district court’s oversight nor
Levi’s claim would entitle Levi to relief. As a preliminary matter, the
district court’s failure to address this claim only requires reversal if
no independent basis for affirming its implicit denial may be found.
See Brewster of Lynchburg, Inc. v. Dial Corp., 33 F.3d 355, 367 (4th
Cir. 1994). Although Levi satisfied the exhaustion requirement by
presenting this claim to the Supreme Court of Virginia in a habeas
petition, that court sustained the respondent’s motion to dismiss
LEVI v. KING 3
Levi’s petition on the basis that Levi had not retained his appellate
counsel to pursue a second-tier appeal, as supported by an affidavit
of Levi’s appellate counsel. Because that court’s factual determina-
tion on this claim was not unreasonable in light of that affidavit, see
§ 2254(d)(2), and has not been rebutted by clear and convincing evi-
dence, see § 2254(e)(1), this court is bound to accept that factual
determination as true. Howard v. Moore, 131 F.3d 399, 406 (4th Cir.
1997) (citing Sumner v. Mata, 449 U.S. 539, 547 (1981)).
Finally, because the foregoing indicates that Levi could allege no
additional facts that, if true, would entitle him to relief, the district
court’s dismissal of his habeas petition without an evidentiary hearing
was not erroneous. See McCarver v. Lee, 221 F.3d 583, 597-98 (4th
Cir. 2000). Accordingly, we deny Levi a certificate of appealability
and dismiss his appeal. 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