UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BARRY E. THOMAS,
Petitioner-Appellant,

v.
                                                                  No. 99-7501
RONALD J. ANGELONE, Director of
the Virginia Department of
Corrections,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca B. Smith, District Judge.
(CA-98-1199-2)

Submitted: April 20, 2000

Decided: May 16, 2000

Before WILLIAMS, MICHAEL, and TRAXLER, Circuit Judges.

_________________________________________________________________

Dismissed by unpublished per curiam opinion.

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COUNSEL

Barry E. Thomas, Appellant Pro Se. Linwood Theodore Wells, Jr.,
Assistant Attorney General, Richmond, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Barry Thomas appeals from the district court's order adopting the
report and recommendation of the magistrate judge and denying relief
on Thomas's 28 U.S.C.A. § 2254 (West 1994 & Supp. 1999) petition.
The court determined that, with the exception of his claim of actual
innocence, Thomas's claims were procedurally defaulted. The court
construed the claim of actual innocence as an insufficiency of the evi-
dence claim and reviewed it under Jackson v. Virginia, 

,
324 (1979), before determining that there was sufficient evidence to
support Thomas's conviction.

In his objections to the magistrate judge's report and recommenda-
tion and on appeal, Thomas has argued that the court misconstrued his
petition. He contends his claim of actual innocence was improperly
construed as a claim of insufficient evidence and should have been
considered in relation to his procedurally defaulted claims so he could
gain review of those claims.

Thomas may overcome his procedural default by showing either
cause and prejudice or actual innocence. See United States v. Mikala-
junas, 

, 493-94 (4th Cir. 1999), cert. denied, ___ U.S.
___, 

 (U.S. Mar. 6, 2000) (No. 99-8074). We have
reviewed the record and find Thomas has not established cause and
prejudice or actual innocence. Therefore, we deny a certificate of
appealability and dismiss the appeal. 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

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