887 F.2d 1081Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Arnold J. SOUTHERS, Petitioner-Appellant,v.STATE OF WEST VIRGINIA, Respondent-Appellee.
No. 89-6568.
United States Court of Appeals, Fourth Circuit.
Submitted:  Aug. 31, 1989.Decided:  Sept. 27, 1989.Order on Denial of Rehearing and Rehearing In Banc Oct. 20, 1989.

Arnold J. Southers, appellant pro se.
Before HARRISON L. WINTER and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge.
PER CURIAM:


1
Arnold J. Southers seeks to appeal the district court's order refusing habeas corpus relief pursuant to 28 U.S.C. Sec. 2254.  Our review of the record and the district court's opinion discloses that this appeal is without merit.  Accordingly, we deny a certificate of probable cause and dismiss the appeal on the reasoning of the district court.  Southers v. State of West Virginia, C/A No. 89-17-E-K (N.D.W.Va. Mar. 20, 1989).  We dispense with oral argument because the dispositive issues recently have been decided authoritatively.

MEMORANDUM AND ORDER

2
In his petition for rehearing, Arnold J. Southers alleges that the denial of his petition for a writ of habeas corpus in this proceeding precludes him from attacking an allegedly illegal conviction returned in West Virginia that has been used to enhance the sentence in Tennessee which he is presently serving.


3
The petition for habeas corpus in the instantcase does not allege that Southers sought to attack the West Virginia sentence in Tennessee.  As a consequence, there is no basis for the claim that denial of this petition for a writ of habeas corpus precludes Southers' contention that Tennessee courts have improperly enhanced his sentence by relying on an allegedly illegal West Virginia conviction.  See Maleng v. Cook, 490 U.S. ---, 109 S.Ct. 1923 (1989).


4
It is therefore, with the concurrence of Judge Wilkins and Judge Butzner, ORDERED that the petition for rehearing is denied.  No judge in active service has requested a poll on the suggestion for rehearing in banc.  The motion to "Stay Execution of Mandate" is also denied.


5
DISMISSED.

