54 F.3d 772NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
John R. BINNS, Petitioner-Appellant,v.Pat EDGE, Warden, Respondent-Appellee.
No. 94-6255.
United States Court of Appeals, Fourth Circuit.
Submitted:  Jan. 24, 1995.Decided:  May 22, 1995.

John R. Binns, Appellant Pro Se.
Linwood Theodore Wells, Jr., Assistant Attorney General, Richmond, VA, for Appellee.
Before NIEMEYER and MOTZ, Circuit Judges, and PHILLIPS, Senior Circuit Judge.
PER CURIAM:


1
Appellant seeks to appeal the district court's order denying relief on his 28 U.S.C. Sec. 2254 (1988) petition.  Our review of the record and the district court's opinion discloses that this appeal is without merit.  We note that even if Appellant's acquittal on the assault and battery charges was based upon the failure of the government to prove that he was the assailant, collateral estoppel would not bar the government from presenting evidence that Appellant was the perpetrator of the burglary and grand larceny.  Accordingly, we deny a certificate of probable cause to appeal and dismiss the appeal on the reasoning of the district court.  Binns v. Edge, No. CA-93-759 (E.D. Va.  Feb. 7, 1994).  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
