Garrett v. Beshears ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
AARON DERRICK GARRETT,
Plaintiff-Appellant,
v.
No. 97-7851
EARL BESHEARS, Warden; ATTORNEY
GENERAL OF THE STATE OF
MARYLAND,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CA-97-1916-WMN)
Submitted: April 30, 1998
Decided: May 19, 1998
Before ERVIN and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Dismissed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Aaron Derrick Garrett, Appellant Pro Se. John Joseph Curran, Jr.,
Attorney General, David Jonathan Taube, Assistant Attorney General,
Ann Norman Bosse, OFFICE OF THE ATTORNEY GENERAL OF
MARYLAND, Baltimore, Maryland, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Aaron Garrett seeks to appeal the district court's order denying
relief on his petition filed under 28 U.S.C.A. § 2254 (West 1994 &
Supp. 1998). We have reviewed the record and the district court's
opinion and find no reversible error. Accordingly, we deny a certifi-
cate of appealability and dismiss the appeal.
Garrett contends that he received ineffective assistance of counsel
because his attorney: (1) inadequately cross-examined the expert wit-
ness and one of the victims; (2) failed to challenge the competency
of the five- and six-year-old victims; (3) failed to object to the State's
leading questions posed during voir dire of one of the child witnesses;
(4) failed to cross-examine most other witnesses; and (5) failed to
request an instruction that the jury be precluded from considering
inadmissible expert testimony that was based on hearsay. As to his
first four claims of ineffective assistance, we find that Garrett failed
to establish that the state court's adjudication of these claims "resulted
in a decision that was contrary to, or involved an unreasonable appli-
cation of, clearly established Federal law, as determined by the
Supreme Court of the United States." 28 U.S.C.A.§ 2254(d) (West
1994 & Supp. 1998); see Goodson v. United States , 564 F.2d 1071,
1072 (4th Cir. 1977). We find that Garrett's fifth claim of ineffective
assistance of counsel is meritless because he failed to establish that
he was prejudiced by his attorney's performance. See Strickland v.
Washington, 466 U.S. 668, 694 (1984); see generally Morgan v.
Foretich, 846 F.2d 941, 948-49 (4th Cir. 1988) (holding, in a civil
case, that psychologist's testimony regarding statement of child sex-
ual abuse victim was admissible under Fed. R. Evid. 803(4), which
is substantially identical to Md. R. Evid. 5-803(b)(4)). Garrett's claim
that the expert's testimony invaded the province of the jury is merit-
less. See, e.g., United States v. Safari , 849 F.2d 891, 895 (4th Cir.
1988). Finally, Garrett's hearsay claim is not independently cogniza-
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ble on habeas review because he does not allege a constitutional vio-
lation. See Gray v. Netherland, 99 F.3d 158, 161-62 (4th Cir. 1996),
cert. denied, ___ U.S. ___, 65 U.S.L.W. 3597 (U.S. Feb. 26, 1997)
(No. 96-7976).
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
DISMISSED
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