Jesse Dunaway v. Director of the VA DOC, No. 10-6879 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6879 JESSE DUNAWAY, Petitioner - Appellant, v. DIRECTOR OF THE VIRGINIA DEPARTMENT OF CORRECTIONS,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 Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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. Dunaway asserted that his Virginia In that petition, 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 claims were procedurally barred. that Dunaway s first three 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 regarding any room for debate district court s procedural ruling. 2 the correctness of the If a state court clearly 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 appellate constitutional phases or risk conviction proceedings). procedural default rule claims waiving This set those court forth during in the claims has during stated Slayton trial that absent cause and prejudice or a miscarriage post the constitutes adequate and independent state law ground for decision. v. Pruett, 125 F.3d 192, 196 (4th Cir. 1997). and an Mu min Consequently, 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 disagreed. justifies federal relief. The district court The district court ruled on the merits of Dunaway s ineffective assistance of counsel claim, so we must consider 3 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 assistance of proceedings. counsel, To petitioner establish must ineffective demonstrate that counsel s representation fell below an objective standard of reasonableness, (1984), and Strickland that the defense, id. at 687. v. Washington, deficient 466 668, 688 prejudiced performance U.S. the 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 Consequently, the state court we decline to proceeding, hold 4 that the id. § 2254(d)(2). district court s 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. fails to make a substantial In short, because Dunaway showing of the denial of a constitutional right, 28 U.S.C. § 2253(c), he has failed to make the certificate requisite of showing appealability. to We warrant dispense the with issuance oral of a 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 5
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