UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 97-7398

DENNIS JAMES BROWN,

Petitioner - Appellant,

versus

RONALD ANGELONE, Director of Virginia Depart- ment of Corrections,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern Dis- trict of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior District Judge. (CA-97-854)

Submitted: February 24, 1998 Decided: March 30, 1998

Before WIDENER, Circuit Judge, and HALL and PHILLIPS, Senior Cir- cuit Judges.

Dismissed by unpublished per curiam opinion.

Dennis James Brown, 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Unpublished opinions are not binding precedent in this circuit.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:

Appellant seeks to appeal the district court's order denying

relief on his petition filed under

(West 1994 &

Supp. 1997). We have reviewed the record and the district court's

opinion and find no reversible error. Accordingly, we deny a cer-

tificate of appealability and dismiss the appeal substantially on the reasoning of the district court. See Brown v. Angelone, No. CA- 97-854 (E.D. Va. Sept. 4, 1997). Brown contends that a defendant

cannot be convicted of use of a firearm pursuant to

(Michie Supp. 1997), if the evidence did not establish that the firearm was capable of firing a projectile by the force of

gunpowder. See Sprouse v. Commonwealth,

(Va. Ct. App. 1995). Because Brown alleges that the police found only a toy

gun at the scene of the robbery, he claims his conviction was tainted by prosecutorial misconduct, insufficiency of the evidence,

and ineffective assistance of trial and appellate counsel. Brown

could not have raised these issues in his direct appeal or his

first petition for post-conviction relief because Sprouse was not

issued until after Brown’s direct appeal had been completed and his

first state habeas petition had been denied. See Sprouse,

. Even so, we find that Brown failed to establish that

he was prejudiced by application of the procedural bar. See Murray

v. Carrier,

(1986); Holloman v. Commonwealth,

(Va. 1980). We dispense with oral argument

because the facts and legal contentions are adequately presented in

2 the materials before the court and argument would not aid the deci-

sional process.

DISMISSED

3