UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 95-7688

WILLIAM BARTHOLOMEW PRECHTL, III,

Petitioner - Appellant,

versus

STANLEY R. WITKOWSKI, Warden, Perry Correctional Institute; ATTORNEY GENERAL OF NORTH

CAROLINA,

Respondents - Appellees.

Appeal from the United States District Court for the District of

Columbia, at Charleston. Joseph F. Anderson, Jr., District Judge.

(CA-95-150-2-17AJ)

Submitted: March 5, 1996 Decided: March 19, 1996

Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

William Bartholomew Prechtl, III, Appellant Pro Se. Donald John

Zelenka, Chief Deputy Attorney General, Columbia, South Carolina,

for Appellees.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
2

PER CURIAM:

William B. Prechtl appeals from the district court's order

granting summary judgment for the Respondents on his 28 U.S.C. §

2254 (1988) petition. Prechtl raised fifty claims in his petition.

We have reviewed the district court's opinion adopting the magistrate judge's recommendation and find no error with its determination that only the claims raised before the South Carolina Supreme

Court in Prechtl's direct appeal from his criminal conviction or in

his petition to appeal the denial of his post-conviction relief

application may be addressed by the federal courts. We therefore

affirm the dismissal of all other claims on the reasoning of the

district court. Prechtl v. Witkowski, No. CA-95-150-2-17AJ (D.S.C.

Oct. 11, 1995).

Prechtl concedes that some of his claims may be barred by procedural default, but contends that they should be reviewed anyway

for three reasons: (1) his attorney's failure to present witnesses

at his post-conviction relief hearing constituted ineffective

assistance of counsel, thus resulting in both cause and prejudice;

(2) he is actually innocent; and (3) there was an intervening

change in the law regarding one claim. Our review reveals no error

in the district court's disposal of Prechtl's first two explanations. Therefore we dismiss these two allegations as methods to attack procedurally defaulted claims on the reasoning of the district

court. Prechtl v. Witkowski, No. CA-95-150-2-17AJ (D.S.C. Oct. 11,

1995).
3

Prechtl's third attempt to obtain federal review centers

around a jury instruction that "malice may be inferred from the use

of a deadly weapon." Prechtl contends that an intervening change in

the law rendered this instruction constitutionally infirm. We find,

however, that the rule upon which Prechtl relies to demonstrate

constitutional infirmity existed before the trial court charged the

jury. Accordingly, there was no intervening change in the law and

we dismiss this claim as meritless.

Having decided that Prechtl has no avenues through which to

litigate procedurally defaulted claims in federal court, we turn to

the five claims raised in his direct appeal and petition for

certiorari to the Supreme Court of South Carolina. Our review of

the district court's opinion accepting the recommendation of the

magistrate judge reveals no reversible error in the grant of summary judgment for the Respondents on these claims. Accordingly, we

deny a certificate of probable cause to appeal and dismiss the appeal on the reasoning of the district court. Prechtl v. Witkowski,

No. CA-95-150-2-17AJ (D.S.C. Oct. 11, 1995). 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