UNPUBLISHED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Dismissed by unpublished per curiam opinion.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.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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 dis-
missed 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;
_________________________________________________________________

*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 recon-
vened on the second day of trial;

(5) he received ineffective assistance of counsel because
his attorneys:

(a) failed to move to suppress the search war-
rants 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 Common-
          wealth 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 reason-
ing 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 attor-
neys, the state court held that even if the search warrants were defec-
tive, 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 estab-
lished 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 inef-
fective for failing to immediately appeal the appellate court's deci-
sions 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 pro-
vided 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 argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

DISMISSED

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