                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-7932



KEITH LEMONT SANDERS,

                                            Petitioner - Appellant,

           versus


GENE M. JOHNSON,

                                              Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (CA-03-598)


Argued:   March 14, 2006                    Decided:   July 27, 2006


Before WIDENER, NIEMEYER, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Erwin Chemerinsky, Professor, DUKE UNIVERSITY SCHOOL OF
LAW, Durham, North Carolina, for Appellant. Michael Thomas Judge,
Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL,
Richmond, Virginia, for Appellee.     ON BRIEF: Carson Campbell,
Lindsay McGuire, Chris Richardson, Beth Richardson-Royer, Catinca
Tabacaru, Law Students, DUKE UNIVERSITY SCHOOL OF LAW, Durham,
North Carolina, for Appellant.      Judith W. Jagdmann, Attorney
General of Virginia, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Keith Lemont Sanders appeals the district court’s denial of

his petition for writ of habeas corpus filed pursuant to 28 U.S.C.

§ 2254.     This court granted a certificate of appealability with

respect to specified claims alleging ineffective assistance of

counsel   and   failure   to   disclose    exculpatory   evidence.    Upon

consideration of those claims, we affirm the denial of habeas

relief.



                                    I.

     On April 9, 2000, Lieutenant W.K. Extine of the York County,

Virginia,     Sheriff’s   Department,      observed   Sanders   traveling

northbound on Route 17 in York County.        Extine knew Sanders had had

his license revoked from a recent criminal history check at the

Department of Motor Vehicles.       Extine also knew that Sanders had

charges pending in Newport News and York County, which was the

reason for the criminal history check at the DMV.         Extine followed

the defendant to a parking lot and signaled him to stop.             Extine

asked Sanders for his license and Sanders replied, “Epstein [sic],

you know I don’t have a license.”        The officer searched Sanders and

the vehicle and discovered ten pills marked M-357 and one piece of

crack cocaine. Extine then arrested Sanders. No objection is made

to that search.




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     On July 6, 2000, after accepting an Alford guilty plea from

the defendant, the Circuit Court of York County convicted Sanders

of one count of possession with intent to distribute cocaine,

second or subsequent offense, and one count of possession of a

controlled substance, hydrocodone and acetaminophen.                      On October

17, 2000, Sanders was sentenced to five years in prison for

possession with intent to distribute cocaine, and four years and

six months for possession of a controlled substance.

     On October 29, 2001, Sanders filed a petition for writ of

mandamus in the Supreme Court of Virginia, challenging his sentence

for possession of a controlled substance, a misdemeanor offense.

On November 27, 2001, the circuit court entered an order vacating

the original sentencing order and re-sentenced Sanders to five

years in prison for possession with intent to distribute cocaine

and 12 months for possession of a controlled substance. (J.A. 106)

     After exhausting his direct appeals in the state courts,

Sanders filed, pro se, a petition for writ of habeas corpus in the

circuit court on December 4, 2002.                The circuit court denied and

dismissed the petition and the Supreme Court of Virginia refused

his petition for appeal from the denial of habeas relief.

     Then,    pursuant   to    28   U.S.C.        §   2254,   Sanders     filed    this

petition   for   writ    of    habeas    corpus.           The      magistrate    judge

recommended    that   the     petition       be   denied      and    dismissed.      On

September 13, 2004, the district court denied and dismissed the


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petition for habeas corpus and declined to issue a certificate of

appealability because Sanders failed to demonstrate a substantial

showing of the denial of a constitutional right. Sanders noted his

appeal and, after consideration of informal briefs, this court

appointed   counsel    for   Sanders       and    granted    a   certificate   of

appealability on two issues:           (1) whether Sanders was denied

effective assistance of counsel due to his attorney’s alleged

failure to investigate and advance a motion to suppress, and (2)

whether Sanders was denied due process based on the Commonwealth’s

failure to divulge information relating to access of his DMV

records.



                                    II.

     Sanders first asserts that his trial counsel’s representation

constituted ineffective assistance of counsel because he failed to

conduct a pre-trial investigation and failed to move to suppress

illegally   obtained   evidence.1          To    establish   that   he   received

ineffective assistance of counsel, Sanders must satisfy both prongs

of Strickland v. Washington, 466 U.S. 668 (1984).                   “First, the


     1
      Sanders also argues that his appellate counsel failed to meet
the standard for effective assistance of counsel because she failed
to conduct a reasonable investigation that would have uncovered a
violation of Brady v. Maryland, 373 U.S. 83 (1963).         Because
Sanders failed to raise such a claim in the district court or the
state courts, the claim is defaulted for purposes of federal
habeas. Bassette v. Thompson, 915 F.2d 932, 936 (4th Cir. 1990);
see also Matthews v. Evatt, 105 F.3d 907, 914-15 (4th Cir. 1997);
Bennett v. Angelone, 92 F.3d 1336, 1344 (4th Cir. 1996).

                                       4
defendant must show that counsel’s performance was deficient. . .

. Second, the defendant must show that the deficient performance

prejudiced the defense.” Strickland, 466 U.S. at 687.

     First, Sanders claims that his trial attorney conducted no

investigation prior to the preliminary hearing in the York County

District Court.      A reasonably competent attorney in a similar

situation, Sanders contends, would have adequately investigated

Sanders’   only    possible    line   of   defense:    whether     sufficient

probable cause existed to justify the traffic stop.                  Further,

Sanders argues, the attorney's failure to conduct any investigation

altered the result of Sanders’ plea hearing because but for such

errors, Sanders would neither have made an involuntary plea, nor

stipulated to facts that he now alleges were fabricated by the

prosecution.

     Second, Sanders argues that because his attorney neglected to

do any pretrial investigation, he failed to move to suppress

illegally obtained evidence found in Sanders’ pocket. Sanders thus

contends that the result of the plea hearing was prejudiced by the

failure to make a motion to suppress the evidence obtained in

violation of the Fourth Amendment because had this evidence been

inadmissible, the entire basis for Sanders’ conviction would have

collapsed.

     The   state   habeas     court   found   the   claims   of   ineffective

assistance of counsel to be without merit.               We hold that the


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decision of the state habeas court was not unreasonable. 28 U.S.C.

§ 2254(d)(1).

      The prosecutor, by stipulation, summarized the Commonwealth’s

evidence, to which Sanders had “no additions or deletions.” (J.A.

88)   That evidence establishes that there is nothing suspicious

about the timing of the DMV check by Extine.   Extine made the DMV

check almost an hour after the arrest as part of the normal process

of requesting a warrant.    Moreover, the stipulation establishes

that Extine’s pre-arrest knowledge of the defendant was not based

on the DMV check, rather on his previous dealings with Sanders and

charges pending against Sanders in Newport News and York County.

Further, the record establishes that Sanders and his car were

searched incident to a valid arrest. A reasonable conclusion based

on this evidence was that there was no basis upon which to file a

motion to suppress.    Sanders, therefore, failed to demonstrate

either incompetence or prejudice, as required by Strickland.



                               III.

      Next, Sanders argues that his Fourteenth Amendment right to

due process was violated when the government failed to disclose

evidence showing that Extine lacked probable cause for stopping

Sanders.   Brady v. Maryland, 373 U.S. 83 (1963).   He claims that

Extine had no prior knowledge of his revoked driver’s license and

only learned of the fact almost an hour after Sanders’ arrest when


                                 6
he checked the DMV record.   Thus, according to Sanders, the stop

was illegal.   Sanders contends that Extine, as a part of the

prosecution, failed to divulge the existence of the DMV record

showing the time he checked Sanders’ driving record.       Sanders

asserts that the failure of the prosecution and the police to

disclose this evidence is material.   Without use of the evidence

obtained by the illegal stop, he contends, the conviction could not

have been obtained.

     The state habeas court found this claim to be procedurally

defaulted because it could have been raised at trial or on direct

appeal. Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va. 1974).

Sanders asserted to the federal magistrate judge that the cause of

the default was due to ineffective assistance of counsel, alleging

that Atkinson failed to conduct an adequate investigation of the

facts. The magistrate judge found that because the information was

available to Sanders and he could have presented this claim on

direct appeal, his attorney’s failure to discover the information

at an earlier stage cannot constitute cause for default.   Nor can

the delay in its discovery be said to have caused any actual

prejudice. The magistrate judge’s recommendation that the petition

with respect to this claim be denied was accepted by the district

court.

     This court has recognized that “the procedural default rule

set forth in Slayton constitutes an adequate and independent state


                                7
law ground for decision.” Wright v. Angelone, 151 F.3d 151, 159

(4th Cir. 1998) (quoting Mu’Min v. Pruett, 125 F.3d 192, 196 (4th

Cir. 1997).      Therefore, absent cause or prejudice or a miscarriage

of justice, we may not review Sanders’ constitutional claim because

the state habeas court declined to consider its merits on the basis

of an adequate and independent state procedural rule. Mu’Min, 125

F.3d at 196; see also Harris v. Reed, 489 U.S. 255, 262 (1989).

      Sanders     attempts       to    establish          ineffective     assistance       of

counsel as cause and prejudice to excuse his default.                                     Yet,

“ineffective      assistance          adequate       to    establish    cause       for   the

procedural default of some other constitutional claim is itself an

independent constitutional claim.” Edwards v. Carpenter, 529 U.S.

446, 451 (2000). Thus, a claim of ineffective assistance generally

must “‘be presented to the state courts as an independent claim

before    it    may   be    used      to    establish       cause   for      a    procedural

default.’” Edwards, 529 U.S. at 452 (quoting Murray v. Carrier,

477 U.S. 478, 489 (1986)); see also Swisher v. True, 325 F.3d 225,

231   (4th     Cir.   2003).       Sanders        does     not   assert      that    he   can

demonstrate cause and prejudice for his procedural default of the

ineffective      assistance        claim.            Accordingly,       he       cannot   use

ineffective assistance of counsel to demonstrate cause for the

failure   to    raise      the   due       process    violation.        Therefore,         the




                                              8
district court did not err in concluding that Sanders’ claim was

procedurally defaulted.2

     The judgment of the district court is accordingly

                                                         AFFIRMED.




     2
      Even if we were to review Sanders’ Brady claims, we would
find them to be without merit.        The potentially exculpatory
evidence, he claims, of the DMV record of the time at which Extine
checked his driving record, which he contends shows the check was
not made until almost an hour after the arrest is not the source of
probable cause for the stop.      As discussed above, Extine had
probable cause to stop Sanders based on a previous DMV check and
previous dealings with the defendant. Thus, Sanders’ failure to
meet the Brady test is fatal to his claim on this issue. And, in
any event, there is no merit to the Brady claim based on any
failure of the attorney to turn over the DMV information which was
available to the defendant in a place where a reasonable defendant
would have looked. United States v. Wilson, 901 F.2d 378, 381 (4th
Cir. 1990).

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