Carroll Eugene Strader v. Larry Tingen Attorney General of North Carolina

948 F.2d 1283 NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Carroll Eugene STRADER, Plaintiff-Appellant, v. Larry TINGEN; Attorney General of North Carolina, Defendants-Appellees. No. 91-7210. United States Court of Appeals, Fourth Circuit. Submitted Oct. 28, 1991. Decided Nov. 18, 1991. Appeal from the United States District Court for the Middle District of North Carolina, at Salisbury. Richard C. Erwin, Chief District Judge. (CA-90-605-4) Carroll Eugene Strader, appellant pro se. Richard Norwood League, Office of the Attorney General of North Carolina, Raleigh, N.C., for appellees. M.D.N.C. DISMISSED. Before ERVIN, Chief Judge, SPROUSE, Circuit Judge, and CHAPMAN, Senior Circuit Judge. OPINION PER CURIAM: [1] Carroll Eugene Strader appeals from the district court's order refusing habeas corpus relief pursuant to 28 U.S.C. § 2254 (1988). [2] Our review of the record and the district court's opinion accepting the recommendation of the magistrate judge discloses that this appeal is without merit. Accordingly, we deny a certificate of probable cause to appeal and dismiss on the reasoning of the district court. This petition constituted an abuse of the writ pursuant to Rule 9(b) of the Rules Governing § 2254 Proceedings and McClesky v. Zant, 59 U.S.L.W. 4288 (U.S.1991).* Strader v. Tingen, No. CA-90-605-4 (M.D.N.C. Aug. 6, 1991). 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. [3] DISMISSED. Footnotes [-s] * Although Strader received no explicit notice of possible dismissal of his petition as an abuse of the writ as required by Johnson v. Copinger, 420 F.2d 395, 399 (4th Cir.1969), this omission was harmless error. Strader was put on notice by the State's Motion for Summary Judgment and the magistrate judge's recommendation that his petition was subject to dismissal as an abuse of the writ. He was afforded the opportunity to respond and acknowledged the potential abuse of the writ dismissal in his objections to the magistrate's recommendation and in his response to the State's motion