                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 01-7133



DAVID ALAN LEARY, JR.,

                                             Petitioner - Appellant,

          versus


DAVID GARRAGHTY, Chief    Warden,   Greensville
Correctional Center,

                                              Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (CA-00-1657-AM)


Submitted:   October 10, 2001             Decided:   October 23, 2001


Before WIDENER, WILKINS, and MOTZ, Circuit Judges.


Dismissed by unpublished per curiam opinion.


David Alan Leary, Jr., Appellant Pro Se. Thomas Drummond Bagwell,
Assistant Attorney General, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     David Alan Leary, Jr., seeks to appeal the district court’s

order denying relief on his petition filed under 28 U.S.C.A. § 2254

(West 1994 & Supp. 2001).   We have reviewed the record and the dis-

trict court’s opinion and find no reversible error.    Accordingly,

we deny a certificate of appealability and dismiss the appeal

substantially on the reasoning of the district court.*    See Leary

v. Garraghty, No. CA-00-1657-AM (E.D. Va. June 8, 2001).    We dis-

pense 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




     *
       We note that in Beck v. Alabama, 447 U.S. 625, 638 n.14
(1980), the Supreme Court declined to decide whether due process
requires lesser included instructions in non-capital state trials.
Thus, Leary cannot meet the requirements of § 2254(d)(1).


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