UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 96-6311
KEITH TYRONE JOHNSON,
Petitioner - Appellant,
versus
WARDEN, NOTTOWAY CORRECTIONAL CENTER,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern Dis-
trict of Virginia, at Richmond. Robert E. Payne, District Judge.
(CA-95-577-3)
Submitted: July 23, 1996 Decided: July 31, 1996
Before WIDENER, NIEMEYER, and MICHAEL, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Keith Tyrone Johnson, Appellant Pro Se. John H. McLees, Jr.,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant seeks to appeal the district court's order denying
relief on his petition brought under 28 U.S.C. § 2254 (1988), as
amended by Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, 110 Stat. 1217. We have reviewed the record
and the district court's opinion and find no error as to all but
one of Appellant's claims. Accordingly, we deny a certificate of
probable cause to appeal as to these claims; to the extent that a
certificate of appealability is required, we deny such a certifi-
cate. We dismiss all but one of Appellant's claims on the reasoning
of the district court. Johnson v. Warden, Nottoway, No. CA-95-577-3
(E.D. Va. Feb. 14, 1996).
The remaining claim alleged that Appellant was denied effec-
tive assistance of counsel because his trial attorney failed to
have closing arguments transcribed and therefore may have impeded
his ability to bring a sufficiency of the evidence claim under
Virginia law. The Supreme Court of Virginia barred this claim under
Penn v. Smyth, 49 S.E.2d 600 (Va. 1948), which requires that peti-
tions allege facts and not mere conclusions or opinions. Because
Appellant was not afforded the opportunity to particularize his
conclusory claim in state court, we reviewed the merits of the
claim.
We find, however, that a review on the merits does not entitle
Appellant to the relief he seeks. Taking the testimony presented at
trial in the light most favorable to the Government, a reasonable
fact finder could find Appellant guilty beyond a reasonable doubt.
2
See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (providing
standard for a sufficiency of the evidence challenge). Accordingly,
Appellant has not demonstrated that his attorney's failure to
ensure transcription of the closing arguments resulted in any
prejudice. See Strickland v. Washington, 466 U.S. 668 (1984)
(providing standard for ineffective assistance of counsel claim).
Having thus disposed of all claims raised by the Appellant, we deny
a certificate of probable cause to appeal or, to the extent that
one is required, a certificate of appealability, and dismiss. 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
3