UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NORMAN BRUCE DERR,

Petitioner-Appellant,

v. No. 95-7699

JOHN JABE, Warden,

Respondent-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

David G. Lowe, Magistrate Judge.

(CA-95-284)

Submitted: February 29, 1996

Decided: April 23, 1996

Before MURNAGHAN and NIEMEYER, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Dismissed by unpublished per curiam opinion.

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COUNSEL

Norman Bruce Derr, Appellant Pro Se. Leah Ann Darron, Assistant

Attorney General, Richmond, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Norman Bruce Derr seeks to appeal the magistrate judge's order

denying relief on his 28 U.S.C. § 2254 (1988) petition.* His dismissed petition raised the following claims.

(1) Evidence presented at his trial was obtained through

the use of defective affidavits and search warrants;

(2) the affidavits in support of the search warrants were

admitted into evidence, prejudicing him because they

included statements that Derr had been charged with a

similar offense involving the same modus operandi;

(3) there was insufficient evidence to prove him guilty

beyond a reasonable doubt because:

(a) the Commonwealth failed to show motive;

(b) the circumstances of time, place, conduct

were not consistent with guilt in view of the

great variations in the testimony of two key

witnesses;

(c) the circumstances of time, place, and conduct

were not consistent with guilt because the

tracking dog might have picked up the wrong

scent; and

(d) the circumstances regarding the means and

evidence seized from Derr's home were not

consistent with guilt;

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*Both parties consented to the jurisdiction of the magistrate judge

under 28 U.S.C. § 636(c)(1988).

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(4) the court failed to ask the jurors whether they had seen

or heard anything about the case when they reconvened on the second day of trial;

(5) he received ineffective assistance of counsel because

his attorneys:

(a) failed to move to suppress the search warrants on the grounds that a police detective

committed perjury when he certified that he

had personal knowledge of the facts;

(b) conspired to cover up the unsigned, undated,

and unsworn affidavits in support of the

search warrant by leading the detective to say

that all of the affidavits were presented to the

magistrate contemporaneously;

(c) failed to move to suppress the warrants on the

grounds that the affidavits were not signed

under oath, not signed by the detective, not

signed by the magistrate, not dated, and had

an altered filing date;

(d) failed to move to suppress the warrants

because they were not supported by probable

cause;

(e) failed to raise issues (a) and (c) on appeal;

(f) failed to take advantage of an eye witness'

testimony that she went into her house at a

time which would have precluded her from

seeing the alleged perpetrator returning to his

car according to the testimony of a second

eye witness;

(g) failed to object to the introduction of the

search warrant and affidavits into evidence;

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(h) failed to obtain a neutral canine trainer or

fiber expert to attack the Commonwealth's

experts;

(i) failed to argue to the jury that the Commonwealth did not prove abduction since that

charge was merely incidental to the other

offenses as a matter of law;

(j) failed to introduce all exculpatory evidence;

(k) failed to appeal a suppression decision to the

Virginia Supreme Court; and

(l) failed to object to prosecutorial misconduct.

We have reviewed the record and the magistrate's opinion and find

no reversible error as to claims (1), (2), (3), and (5)(b), (d), (e), (f),

(g), (h), and (i). Accordingly, we dismiss these claims on the reasoning of the magistrate judge's order. Derr v. Jabe, No. CA-95-284

(E.D. Va. Sept. 15, 1995).

Addressing the remaining claims, we find claims (5)(a) and (j) to

be factually meritless and claims (4) and (5)(l) to be procedurally

barred. Teague v. Lane, 489 U.S. 288, 297-98 (1989); Va. Code Ann.

§ 8.01-654(b)(2) (Michie 1992); Slayton v. Parrigan, 215 Va. 27, 30,

205 S.E.2d 680, 682 (1974), cert. denied, 419 U.S. 1108 (1975).

Turning to claim (5)(c) we note that upon challenge by Derr's attorneys, the state court held that even if the search warrants were defective, the good faith exception would apply and therefore allow the

admission of the evidence. While the errors in claim (5)(c) were not

properly raised before the court, we note that they are only judicial

clerical errors and appear on only one affidavit. Since the good faith

exception speaks exactly to this kind of error, and since the state court

already found nothing to invalidate the good faith exception, we find

that Derr has not met his burden of demonstrating that these clerical

errors would have changed the state court's assessment. See United

States v. Leon, 468 U.S. 897 (1984). Accordingly, he has not established that his attorneys' failure to raise these errors prejudiced him,

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and we therefore dismiss the claim. Strickland v. Washington, 466

U.S. 668 (1984).

Finally, we address claim (5)(k)--that Derr's attorneys were ineffective for failing to immediately appeal the appellate court's decisions admitting challenged evidence. Again, we find that Derr has

failed to demonstrate prejudice. The admissibility of the evidence at

issue was raised before the supreme court in Derr's petition to that

court following his unsuccessful appeal from the judgment in the

appellate court. The supreme court found no reason to overturn the

appellate court's decision on the admissibility issue. Derr v.

Commonwealth, 242 Va. 413, 410 S.E.2d 662 (1991). Derr has provided no evidence suggesting that the supreme court would have

decided differently had the issue been presented at an earlier time.

Accordingly we dismiss the claim for lack of prejudice.

Given the above dispositions, 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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