Robert M. Driscoll v. Edward W. Murray

7 F.3d 223

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Robert M. DRISCOLL, Petitioner-Appellant,
v.
Edward W. MURRAY, Respondent-Appellee.

No. 92-6757.

United States Court of Appeals,
Fourth Circuit.

Submitted: November 25, 1992.
Decided: October 12, 1993.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. David G. Lowe, Magistrate Judge. (CA-91-445)

Robert M. Driscoll, Appellant Pro Se.

Robert Quentin Harris, Assistant Attorney General, Richmond, Virginia, for Appellee.

E.D.Va.

DISMISSED.

Before WIDENER, MURNAGHAN, and WILKINSON, Circuit Judges.

PER CURIAM:

OPINION

1

Robert M. Driscoll seeks to appeal the magistrate judge's order refusing habeas corpus relief pursuant to 28 U.S.C.s 2254 (1988). Our review of the record and the magistrate judge's opinion, entered pursuant to 28 U.S.C. § 636(c)(3)(1988), discloses that this appeal is without merit. Accordingly, we deny a certificate of probable cause to appeal and dismiss the appeal on the reasoning of the magistrate judge.* Driscoll v. Murray, No. CA-91-445 (E.D. Va. July 6, 1992). 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

*

We note that procedural bar was incorrectly applied to the claim of insufficiency of the evidence. The Supreme Court of Virginia sua sponte dismissed Driscoll's habeas petition, in which he raised this claim, as frivolous. This is not a clear application of the bar, see Coleman v. Thompson, 59 U.S.L.W. 4789, 4792-94 (U.S. 1991), and the merits of the claim should have been addressed. After careful consideration of the record, however, we conclude that the evidence was sufficient to convict Driscoll