Thomas v. Angelone

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT BARRY E. THOMAS, Petitioner-Appellant, v. No. 99-7501 RONALD J. ANGELONE, Director of the Virginia Department of Corrections, Respondent-Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca B. Smith, District Judge. (CA-98-1199-2) Submitted: April 20, 2000 Decided: May 16, 2000 Before WILLIAMS, MICHAEL, and TRAXLER, Circuit Judges. _________________________________________________________________ Dismissed by unpublished per curiam opinion. _________________________________________________________________ COUNSEL Barry E. Thomas, Appellant Pro Se. Linwood Theodore Wells, Jr., Assistant Attorney General, Richmond, Virginia, for Appellee. _________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). _________________________________________________________________ OPINION PER CURIAM: Barry Thomas appeals from the district court's order adopting the report and recommendation of the magistrate judge and denying relief on Thomas's 28 U.S.C.A. § 2254 (West 1994 & Supp. 1999) petition. The court determined that, with the exception of his claim of actual innocence, Thomas's claims were procedurally defaulted. The court construed the claim of actual innocence as an insufficiency of the evi- dence claim and reviewed it under Jackson v. Virginia, 443 U.S. 307, 324 (1979), before determining that there was sufficient evidence to support Thomas's conviction. In his objections to the magistrate judge's report and recommenda- tion and on appeal, Thomas has argued that the court misconstrued his petition. He contends his claim of actual innocence was improperly construed as a claim of insufficient evidence and should have been considered in relation to his procedurally defaulted claims so he could gain review of those claims. Thomas may overcome his procedural default by showing either cause and prejudice or actual innocence. See United States v. Mikala- junas, 186 F.3d 490, 493-94 (4th Cir. 1999), cert. denied, ___ U.S. ___, 2000 WL 157197 (U.S. Mar. 6, 2000) (No. 99-8074). We have reviewed the record and find Thomas has not established cause and prejudice or actual innocence. Therefore, we deny a certificate of appealability 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 2