Dunaway v. Director of the Virginia Department of Corrections

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6879
JESSE DUNAWAY,
Petitioner - Appellant,
v.
DIRECTOR OF THE VIRGINIA DEPARTMENT OF CORRECTIONS,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Jackson L. Kiser, Senior
District Judge. (7:10-cv-00120-jlk-mfu)
Submitted: February 7, 2011 Decided: March 4, 2011
Before DUNCAN, DAVIS, and WYNN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Jesse Dunaway, Appellant Pro Se. Eugene Paul Murphy, OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jesse Dunaway seeks a certificate of appealability
authorizing him to challenge the district court’s order denying
relief on his 28 U.S.C. § 2254 petition. In that petition,
Dunaway asserted that his Virginia conviction for being an
organizer of a continuing criminal enterprise was obtained in
violation of his federal constitutional rights because (1) the
jury did not unanimously agree to all the elements of his
continuing criminal enterprise offense, (2) the jury received
defective instructions before deliberating, (3) the state courts
unconstitutionally interpreted the controlling Virginia statute,
and (4) his trial counsel provided ineffective assistance.
The district court concluded that Dunaway’s first three
claims were procedurally barred. When the district court denies
relief on procedural grounds, a petitioner seeking a certificate
of appealability must show, “at least, that jurists of reason
would find it debatable whether the petition states a valid
claim of the denial of a constitutional right and that jurists
of reason would find it debatable whether the district court was
correct in its procedural ruling.” Slack v. McDaniel, 529 U.S.
473 (2000)(emphasis added). We do not believe that Dunaway has
shown any room for debate regarding the correctness of the
district court’s procedural ruling. “If a state court clearly
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and expressly bases its dismissal of a habeas petitioner’s claim
on a state procedural rule, and that procedural rule provides an
independent and adequate ground for the dismissal, the habeas
petitioner has procedurally defaulted his federal habeas claim.”
Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998). Here, the
state court expressly dismissed Dunaway’s first three claims on
the grounds that they were procedurally barred under Slayton v.
Parrigan, 205 S.E.2d 680 (Va. 1974) (requiring a defendant to
present federal constitutional claims during the trial and
appellate phases or risk waiving those claims during post-
conviction proceedings). This court has stated that “the
procedural default rule set forth in Slayton constitutes an
adequate and independent state law ground for decision.” Mu’min
v. Pruett, 125 F.3d 192, 196 (4th Cir. 1997). Consequently,
“absent cause and prejudice or a miscarriage of justice to
excuse the procedural default,” a federal court cannot review
Dunaway’s first three claims. Wright v. Angelone, 151 F.3d 151,
160 (4th Cir. 1998).
Dunaway asserts that his fourth claim, alleging ineffective
assistance of counsel, constitutes the “cause” of his procedural
default and justifies federal relief. The district court
disagreed. The district court ruled on the merits of Dunaway’s
ineffective assistance of counsel claim, so we must consider
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whether “reasonable jurists would find the district court’s
assessment of the constitutional claim[] debatable or wrong.”
Slack, 529 U.S. at 484. Dunaway alleges that the jury did not
identify three or more specific violations of drug laws which
would establish the continuing series of violations necessary to
sustain a conviction for being the organizer of a continuing
criminal enterprise in violation of Va. Code Ann. § 18.2-248(H2)
(2009). He claims that his trial counsel provided ineffective
assistance by failing to raise this issue during the trial and
during post-trial proceedings. To establish ineffective
assistance of counsel, petitioner must demonstrate that
counsel’s representation “fell below an objective standard of
reasonableness,” Strickland v. Washington, 466 U.S. 668, 688
(1984), and that “the deficient performance prejudiced the
defense,” id. at 687. The Virginia Supreme Court concluded that
the jury instructions issued in Dunaway’s case were proper and
that Dunaway’s trial counsel had no valid basis to object.
Petitioner fails to show that this conclusion “was contrary to,
or involved an unreasonable application of, clearly established
Federal law,” 28 U.S.C. § 2254(d)(1), or constituted “an
unreasonable determination of the facts in light of the evidence
presented in the state court proceeding,” id. § 2254(d)(2).
Consequently, we decline to hold that the district court’s
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adjudication of Dunaway’s ineffective assistance claim could be
reasonably labeled wrong or debatable.
Because his ineffective assistance claim fails, Dunaway has
also failed to show cause and prejudice excusing the procedural
default of his first three claims. In short, because Dunaway
fails to make “a substantial showing of the denial of a
constitutional right,” 28 U.S.C. § 2253(c), he has failed to
make the requisite showing to warrant the issuance of a
certificate of appealability. 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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