UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-6981
WILLIAM ELWOOD WELLER, JR.,
Petitioner - Appellant,
versus
RONALD ANGELONE, Director, Department of
Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern Dis-
trict of Virginia, at Richmond. Robert R. Merhige, Jr., Senior
District Judge. (CA-97-241)
Submitted: November 10, 1998 Decided: December 21, 1998
Before HAMILTON and MOTZ, Circuit Judges, and HALL, Senior Circuit
Judge.
Dismissed by unpublished per curiam opinion.
Randolph Daniel Stowe, RANDOLPH D. STOWE, P.C., Norfolk, Virginia,
for Appellant. Michael Thomas Judge, OFFICE OF THE ATTORNEY GEN-
ERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant appeals the district court’s order denying relief on
his petition filed under 28 U.S.C.A. § 2254 (West 1994 & Supp.
1998). We have reviewed the record and the district court’s opinion
and find no reversible error. To the extent that Weller challenges
the exclusion on due process grounds of evidence allegedly tending
to show the guilt of other individuals, we note that, even though
Weller failed to present the claim in this form before the Virginia
Court of Appeals, because the Virginia Supreme Court did not rely
on this procedural bar in its decision, Weller is not barred from
asserting this claim in a federal habeas petition. See Coleman v.
Thompson, 501 U.S. 722 (1991). However, much of this evidence was
hearsay, and the remainder was irrelevant.
To the extent that Weller challenges on federal due process
grounds the state court’s refusal to permit the defense to call a
witness as adverse and the state court’s exclusion of certain
testimony, Weller failed to properly exhaust these claims, see
Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), and would be
procedurally barred from raising the claims now in a second state
habeas petition. See Va. Code Ann. § 8.01-654(B)(2) (Michie 1992 &
Supp. 1998); Bassette v. Thompson, 915 F.2d 932, 936-37 (4th Cir.
1991). Accordingly, we deny a certificate of appealability and
dismiss the appeal substantially on the reasoning of the district
court. See Weller v. Angelone, No. CA-97-241 (E.D. Va. June 4,
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1998). We dispense with oral argument because the facts and legal
contentions are adequately set forth in the materials before the
court and argument would not aid the decisional process.
DISMISSED
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