989 F.2d 491
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.James Arthur BROWN, Petitioner-Appellant,v.Edward W. MURRAY, Director, Virginia Department ofCorrections, Respondent-Appellee.
No. 92-6836.
United States Court of Appeals,Fourth Circuit.
Submitted:  December 9, 1992Decided:  March 9, 1993

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk.  J. Calvitt Clarke, Jr., Senior District Judge.  (CA-91-773-2)
James Arthur Brown, Appellant Pro Se.
Richard Bain Smith, Assistant Attorney General, Richmond, Virginia, for Appellee.
E.D.Va.
DISMISSED.
Before WILKINSON and WILLIAMS, Circuit Judges, and SPROUSE, Senior Circuit Judge.
PER CURIAM:

OPINION

1
James Arthur Brown seeks to appeal the district court's order refusing habeas corpus relief pursuant to 28 U.S.C. § 2254 (1988).  Our review of the record and the district court's opinion accepting the recommendation of the magistrate judge discloses that this appeal is without merit.  Accordingly, we deny a certificate of probable cause to appeal and dismiss the appeal on the reasoning of the district court.*   Brown v. Murray, No. CA-91-773-2 (E.D. Va.  July 24, 1992).  Further, we deny Brown's motion for appointment of counsel.  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


*
 The district court held Brown's allegation of ineffective assistance of counsel for not objecting to the absence of a jury instruction regarding a lesser included offense to be procedurally barred.  We find that the claim is not procedurally barred, but dismissal was nonetheless proper because the claim is without merit


