846 F.2d 73
Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
James POUNCY, Jr., Petitioner-Appellant,
v.
Edward W. MURRAY, Director of the Virginia Department of
Corrections, Respondent-Appellee.
No. 87-6575.
United States Court of Appeals, Fourth Circuit.
Submitted Aug. 25, 1987.
Decided April 28, 1988.
James Pouncy, Jr., appellant pro se.
Thomas Drummond Bagwell, Assistant Attorney General, for appellee.
Before K.K. HALL, CHAPMAN, and WILKINSON, Circuit Judges.
PER CURIAM:
A review of the record and the district court's opinion accepting the magistrate's recommendation discloses that an appeal from its order refusing habeas corpus relief pursuant to 28 U.S.C. Sec. 2254 would be without merit. Because the dispositive issues recently have been decided authoritatively, we deny a certificate of probable cause to appeal, dispense with oral argument, and dismiss the appeal on the reasoning of the district court. Pouncy v. Murray, C/A No. 87-138-N (E.D.Va. April 27, 1987).*
DISMISSED.
The record reveals that the district court did not give Pouncy notice that dismissal under Habeas Rule 9(b) was contemplated. See Johnson v. Copinger, 420 F.2d 395, 399 (4th Cir.1969). The error, however, is harmless since Pouncy did, in fact, address the recommendation for a Rule 9(b) dismissal prior to entry of final judgment. Pouncy has filed a motion for appointment of counsel. Finding that this case presents no circumstances necessitating the assistance of counsel, the motion is denied