UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KARIM ABDUL RAHIM AQUIL,

Petitioner-Appellant,

v.

No. 95-7634

STATE OF SOUTH CAROLINA;

ATTORNEY GENERAL OF SOUTH

CAROLINA,

Respondents-Appellees.

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Cameron McGowan Currie, District Judge.

(CA-93-1311-3-22BC)

Submitted: February 29, 1996

Decided: March 26, 1996

Before WILKINS and WILLIAMS, Circuit Judges, and PHILLIPS,

Senior Circuit Judge.

_________________________________________________________________

Dismissed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Karim Abdul Rahim Aquil, 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Unpublished opinions are not binding precedent in this circuit.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).

_________________________________________________________________

OPINION

PER CURIAM:

Karim Abdul Rahim Aquil appeals from the district court's order

granting Respondents' motion for summary judgment on his 28

U.S.C. § 2254 (1988) petition. The exact claims raised in that petition

are as follows:

A. Ineffective assistance of counsel

1. Counsel failed to object to the insufficient

notice of trial.

2. Counsel failed to object to the trial court's

jury charge, failed to demand to see a yellow

piece of paper given by the judge to the jury

foreman and failed to request a correction of

the jury charge or additional charge.

3. Counsel was ineffective because he was ill

and unable to function properly and was under

a doctor's care at the time of trial.

4. Counsel should have objected on the record to

the trial judge stating, between the time of

conviction and the time of sentencing, that if

the Petitioner would plead guilty to the other

outstanding charges, the trial judge would not

sentence Petitioner to the maximum term of

imprisonment.

5. Counsel knew that the charges against the

Petitioner were malicious prosecution on the

part of Deputy Sheriff O'Neal.

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B. Denial of due process.

1. Insufficient notice of trial date.

a. The petitioner was given one day notice of

trial.

2. Malicious prosecution on the part of the State.

3. The trial judge refused to allow the Petitioner

to present the undercover participant in his

defense.

4. The Petitioner was denied his right to a direct

appeal, in that trial counsel failed to perfect

the appeal.

C. Denial of a fair and impartial trial.

1. Perjury testimony by State's witness.

a. One State witness testified that she had not

been wearing a listening device at the time

of the drug buy, which conflicted with testimony of two other witnesses that she had

been wearing such a device.

2. The trial judge made a highly prejudicial jury

charge.

3. The trial judge was guilty of misconduct, prejudice, and bias.

D. Denial of Fifth and Fourteenth Amendment rights.

1. The trial court allowed the State to use its

peremptory challenges in a racially discriminatory manner.

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E. Denial of Sixth and Fourteenth Amendment rights.

1. Trial attorney failed to move for a continuance

when he was not prepared to go to trial.

2. Trial counsel failed to subpoena witnesses

necessary to the defense presented on Petitioner's behalf.

3. Trial counsel did not advise Petitioner that he

should testify after establishing a defense

strategy making Petitioner's testimony necessary.

4. Trial counsel admitted during evidentiary

hearing on Post Conviction Relief that he rendered ineffective assistance to his client (Petitioner).

Claims A2, A3 A4, and A5 were never properly presented to the

Supreme Court of South Carolina. If Aquil were to attempt to present

them before that court now, however, he would be barred by South

Carolina law. S.C. Code Ann. § 17-27-90 (Law. Co-op. 1985); Land

v. State, 274 S.C. 243, 246, 262 S.E.2d 735, 737 (1980). Aquil has

shown no cause for lifting this bar and accordingly they are dismissed

as barred. See Kornahrens v. Evatt, 66 F.3d 1350, 1357 (4th Cir.

1995), petition for cert. filed, ___ U.S.L.W. ___ (U.S. Feb. 27, 1996)

(No. 94-4008). Claims B2 and C2 were never raised at trial and therefore are barred by South Carolina's contemporaneous objection rule

and not subject to federal review. Peeler v. State, 277 S.C. 70, 283

S.E.2d 826 (1981).

Regarding Aquil's claims A1, B4, C1, D1, E1, and E2, we deny a

certificate of probable cause to appeal and dismiss on the reasoning

of the district court. Aquil v. South Carolina , No. CA-93-1311-3-

22BC (D.S.C. Sept. 15, 1995). We also dismiss claims E3 and E4,

finding that they were not preserved for appellate review. Aquil filed

only general objections to the magistrate judge's denial of relief based

on claims E3 and E4 and therefore waived de novo review by the dis-

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trict court. See Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).

Aquil thereby also waived appellate review of claims E3 and E4. See

Thomas v. Arn, 474 U.S. 140 (1985); United States v. Schronce, 727

F.2d 91, 93 (4th Cir. 1984), cert. denied, 467 U.S. 1208 (1985). We

address Aquil's remaining claims--B1, B3, and C3--on the merits.

Addressing claim B1 first, we initially note that a denial of a continuance may state a due process violation in relation to its effect on

a petitioner's ability to secure witnesses. See Shirley v. North

Carolina, 528 F.2d 819 (4th Cir. 1975) (holding that denial of continuance to secure the attendance of a defense witness was a denial of

due process where the government had delayed the case sixteen

months and where the witness was explained to be"indispensable" to

the defense). However, to obtain a continuance to secure the attendance of a witness, the moving party must show:"`who [the witnesses] are, what their testimony will be, that it will be relevant under

the issues in the case and competent, that the witnesses can probably

be obtained if the continuance is granted, and that due diligence has

been used to obtain their attendance for the trial as set.'" United States

v. Clinger, 681 F.2d 221, 223 (4th Cir.) (quoting Neufield v. United

States, 118 F.2d 375, 380 (D.C. Cir. 1941)), cert. denied, 459 U.S.

912 (1982). Our review reveals no sign that Aquil or his attorney ever

met this burden. Accordingly, this claim has no merit.

Turning to claim B3, we are unable to discern any ruling from the

trial judge which prevented Aquil from presenting witnesses who

were present and ready to testify. To the extent that this claim attacks

the judge's decision not to grant a continuance during which Aquil

might secure the presence of his witnesses, we again find no constitutional violation.

Finally, addressing C3, we note that Aquil fails to explain the misconduct, prejudice, or bias of which he complains. Reference to his

state post-conviction relief application, however, reveals complaints

that the trial judge engaged in misconduct, prejudice, and bias by: (1)

giving an improper jury instruction; (2) writing something on a yellow piece of paper and giving it to the jury without showing it to

either counsel; and (3) interfering in plea negotiations occurring on

other charges against Aquil.

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Addressing the improper jury instruction first, we note that Aquil

never objected to the instruction at trial is therefore barred under

South Carolina's contemporaneous objection rule. Peeler, 277 S.C. at

70, 283 S.E.2d at 826. Turning to the next claim, a review of the jury

instructions reveals that the yellow paper in question was the general

verdict form. Since neither Aquil nor his attorney requested to see this

paper he cannot now assert that the judge's failure to present it to

counsel constituted error. Rowe Int'l, Inc. v. J-B Enter., Inc., 647 F.2d

830, 835 (8th Cir. 1981); Peeler, 277 S.C. at 70, 283 S.E.2d at 826.

Addressing Aquil's final claim of judicial misconduct--an allegation that the judge told Aquil that if he agreed to plead guilty to other

charges he would not sentence him to the maximum term allowable--

we find that no such statement was made during Aquil's sentencing

hearing. However, even taking the evidence in the light most favorable to Aquil and assuming that it was made, we note that Aquil has

not demonstrated how this alleged statement prejudiced him in any

way. To the extent that he claims it affected his rights in relation to

the other charges, he has not revealed how he pled to those charges,

and thus there is no way to assess the effect of the alleged statement.

Further, an attack on the voluntariness of any guilty plea made to

these separate charges must be pursued through a direct appeal or an

application for post-conviction relief from those later convictions. To

the extent that Aquil claims that the alleged statement affected his

sentence in the present case, he has failed to demonstrate even a genuine issue of such effect since he was sentenced well below the maximum allowable sentence.

Given our disposition of these final claims, we deny a certificate

of probable cause to appeal and dismiss the appeal. 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

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