Riddick v. Angelone ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LARRY RIDDICK,
Petitioner-Appellant,
v. No. 96-6298
RONALD ANGELONE,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert R. Merhige, Jr., Senior District Judge.
(CA-95-506-3)
Submitted: November 26, 1996
Decided: January 14, 1997
Before WILKINS and WILLIAMS, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
_________________________________________________________________
Dismissed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Larry Riddick, Appellant Pro Se. Thomas Cauthorne Daniel, Assis-
tant Attorney General, Richmond, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Larry Riddick appeals from the district court's order dismissing his
petition brought under 28 U.S.C. § 2254 (1994).* We dismiss the
appeal.
Riddick raised eight claims in his initial petition, and moved to
amend his complaint to add four more claims following the Govern-
ment's motion to dismiss. Our review reveals that only the following
claims are properly exhausted and subject to federal review:
I. His conviction for seven counts of forgery violated the
Double Jeopardy Clause because, although separate
acts, they were all committed in furtherance of a com-
mon scheme.
II. He was denied due process of law when the state mag-
istrate judge who issued his arrest warrant testified at
his trial in alleged violation of Va. Code Ann.§ 19.2-
271 (Michie 1995).
III. He received ineffective assistance of counsel because
his attorney failed to:
A. object to a statement which suggested that
Riddick was being held in jail pending the
outcome of his trial and may have threatened
a witness against him;
B. subpoena a detective who could have testified
that another person, using an ID card with
_________________________________________________________________
*Effective April 26, 1996, 28 U.S.C. § 2254 was amended by the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-
132, 110 Stat. 1214. Because Riddick filed this appeal prior to the Act's
enactment, we need not consider what effect the Act would have on this
appeal.
2
Riddick's picture attempted to commit a simi-
lar offense; and
C. vigorously pursue his appeal.
Addressing claim I, we find that although Riddick committed all
seven forgeries in furtherance of a single goal, he still committed
seven distinct violations of Virginia law. See Va. Code Ann. § 18.2-
172 (Michie 1996); United States v. Swaim, 757 F.2d 1530, 1536 (5th
Cir.) (stating that the test for whether a continuous transaction results
in the commission of one or multiple offenses is determined by
whether separate and distinct criminal acts have occurred), cert.
denied, 474 U.S. 825 (1985). Furthermore, all of these violations were
tried in a single proceeding, and the Virginia Supreme Court did not
find the punishment to exceed that intended by the Virginia legisla-
ture. Accordingly, we hold that the Double Jeopardy Clause has not
been violated. See Thomas v. Warden, 683 F.2d 83, 85 (4th Cir.)
("Where the [double jeopardy] claim is made in relation to state
offenses, federal courts are essentially bound by state court interpreta-
tions of state legislative intent."), cert. denied, 459 U.S. 1042 (1982).
Turning to claim II, we find that the magistrate judge's testimony did
not violate Va. Code Ann. § 19.2-271 because it did not relate to fac-
tual matters which came before him in his official duties. See Carter
v. Commonwealth, 403 S.E.2d 360 (Va. Ct. App. 1991). Finally, we
find that Riddick has failed to demonstrate both deficient performance
and prejudice in any of his three ineffective assistance claims as
required by Strickland v. Washington, 466 U.S. 668 (1984). To the
extent that claim III.A might also allege a due process violation, we
find that any error was harmless. See Brecht v. Abrahamson, 507 U.S.
619, 637-38 (1993).
Accordingly, we deny a certificate of probable cause to appeal and
dismiss the 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
3