William A. Fisher v. Commonwealth of Virginia

887 F.2d 1079 Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. William A. FISHER, Petitioner-Appellant, v. COMMONWEALTH OF VIRGINIA, Respondent-Appellee. No. 89-7633. United States Court of Appeals, Fourth Circuit. Submitted: June 28, 1989. Decided: Sept. 20, 1989. Rehearing and Rehearing In Banc Denied Oct. 12, 1989. William A. Fisher, appellant pro se. Linwood Theodore Wells, Jr. (Office of the Attorney General of Virginia), for appellee. Before DONALD RUSSELL, SPROUSE and WILKINSON, Circuit Judges. PER CURIAM: [1] William Fisher seeks to appeal the magistrate's order refusing habeas corpus relief pursuant to 28 U.S.C. Sec. 2254. Our review of the record and the magistrate's opinion 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.* Fisher v. Commonwealth of Virginia, C/A No. 88-529-R (E.D.Va. May 9, 1989). We dispense with oral argument because the dispositive issues recently have been decided authoritatively. [2] DISMISSED. Footnotes [-s] * Mr. Fisher's explanation of why he failed to file the exculpatory evidence claim in his first petition has been considered by this Court. His explanation is not adequate to prevent the claim from being dismissed as an abuse of the writ because the record discloses that the facts underlying the claim were known to Fisher at the time he filed his first petition. Sanders v. United States, 373 U.S. 1, 17-18 (1963); Johnson v. Copinger, 420 F.2d 395, 399 (4th Cir.1969)