Albert Larvell Nicks v. Circuit Court of Alexandria, Donald Kent, Virginia Judge, Attorney General of Virginia, Thomas Israel, Warden A.C.C. , 861 F.2d 265 ( 1988 )

861 F.2d 265
Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Albert Larvell NICKS, Petitioner-Appellant,
v.
CIRCUIT COURT OF ALEXANDRIA, Donald Kent, Virginia Judge,
Attorney General of Virginia, Thomas Israel,
Warden A.C.C., Respondents-Appellees.

No. 88-6715.

United States Court of Appeals, Fourth Circuit.

Submitted Aug. 31, 1988.
Decided Sept. 29, 1988.

Albert Larvell Nicks, appellant pro se.

Before ERVIN and CHAPMAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

PER CURIAM:

1

Albert Larvell Nicks seeks to appeal the district court's order refusing habeas corpus relief pursuant to 28 U.S.C. Sec. 2254. Our review of the record and the district court's opinion discloses that this appeal is without merit.

2

Most of Nicks' claims were raised in an earlier federal habeas petition and were decided on the merits. The district court properly dismissed these claims as successive under Rule 9(b), Rules Governing Section 2254 Cases. Sanders v. United States, 373 U.S. 1, 7-8 (1963).

3

Nicks also alleges that his indictment was defective because no blacks were on the grand jury. This claim does not appear to have been raised before.* However, federal review of this claim is foreclosed as Nicks did not raise the issue of the composition of the grand jury at an early stage of the trial. Francis v. Henderson, 425 U.S. 536 (1976). Under Virginia law objections to the method of grand jury selection which are not made at a preliminary stage of the trial are considered waived. Bailey v. Commonwealth, 193 Va. 814, 71 S.E.2d 368, cert. denied, 344 U.S. 886 (1952). Nicks has not demonstrated cause or prejudice for the procedural default sufficient to require review of this claim.

4

Nicks' allegation that he has not been properly credited on his Virginia sentence for time he spent in jail in Alexandria, Virginia, while awaiting trial in 1980 is refuted by documents he himself submitted. These documents show that he was serving a federal sentence in 1980, that his Virginia jail time was credited against his federal sentence and that he did not begin serving his consecutive Virginia sentence until 1987. This allegation does not, therefore, state a claim on which relief could be granted.

5

Accordingly, we deny a certificate of probable cause to appeal and dismiss the appeal on the reasoning of the district court. Nicks v. Circuit Court of Alexandria, C/A No. 88-664-AM (E.D.Va. June 2, 1988). 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.

6

DISMISSED.

*

The petition which Nicks filed in his prior action is not contained in the record