UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 98-6981

WILLIAM ELWOOD WELLER, JR.,

Petitioner - Appellant,

versus

RONALD ANGELONE, Director, Department of Corrections,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern Dis- trict of Virginia, at Richmond. Robert R. Merhige, Jr., Senior District Judge. (CA-97-241)

Submitted: November 10, 1998 Decided: December 21, 1998

Before HAMILTON and MOTZ, Circuit Judges, and HALL, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Randolph Daniel Stowe, RANDOLPH D. STOWE, P.C., Norfolk, Virginia, for Appellant. Michael Thomas Judge, OFFICE OF THE ATTORNEY GEN- ERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Appellant appeals the district court’s order denying relief on

his petition filed under

(West 1994 & Supp.

1998). We have reviewed the record and the district court’s opinion

and find no reversible error. To the extent that Weller challenges

the exclusion on due process grounds of evidence allegedly tending

to show the guilt of other individuals, we note that, even though

Weller failed to present the claim in this form before the Virginia

Court of Appeals, because the Virginia Supreme Court did not rely

on this procedural bar in its decision, Weller is not barred from

asserting this claim in a federal habeas petition. See Coleman v.

Thompson,

(1991). However, much of this evidence was

hearsay, and the remainder was irrelevant.

To the extent that Weller challenges on federal due process

grounds the state court’s refusal to permit the defense to call a

witness as adverse and the state court’s exclusion of certain

testimony, Weller failed to properly exhaust these claims, see

Matthews v. Evatt,

(4th Cir. 1997), and would be

procedurally barred from raising the claims now in a second state

habeas petition. See

(B)(2) (Michie 1992 &

Supp. 1998); Bassette v. Thompson,

(4th Cir.

1991). Accordingly, we deny a certificate of appealability and

dismiss the appeal substantially on the reasoning of the district

court. See Weller v. Angelone, No. CA-97-241 (E.D. Va. June 4,

2 1998). We dispense with oral argument because the facts and legal

contentions are adequately set forth in the materials before the

court and argument would not aid the decisional process.

DISMISSED

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