Joey Johnson v. Warden of Broad River CI, No. 12-7270 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7270 JOEY H. JOHNSON, Petitioner Appellant, v. WARDEN OF BROAD RIVER CORRECTIONAL INSTITUTION, Respondent Appellee, and STATE OF SOUTH CAROLINA; WILLIAM R. BYARS, SCDC Director, Respondents. Appeal from the United States District Court for the District of South Carolina, at Aiken. J. Michelle Childs, District Judge. (1:11-cv-02754-JMC) Submitted: February 28, 2013 Decided: March 8, 2013 Before SHEDD, AGEE, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Joey H. Johnson, Appellant Pro Se. William Edgar Salter, III, Assistant Attorney General, Donald John Zelenka, Senior Assistant Attorney General, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Joey H. Johnson appeals from the district court s order adopting the report and recommendation of the magistrate judge and denying Johnson s 28 U.S.C. ยง 2254 (2006) petition. We previously granted a certificate of appealability on the issues of whether, in light of Martinez v. Ryan, 132 S. Ct. 1309 (2012), (1) the trial court erred in failing to place the case in abeyance received counsel to permit ineffective failed to Johnson to assistance file a exhaust of his counsel requested claim when notice that his of he trial appeal or (2) Johnson showed sufficient cause for his failure to exhaust this claim. After further briefing, we affirm. The question before us is whether Johnson can show cause for his failure to exhaust based upon the ineffective assistance of counsel during his postconviction proceeding. Martinez court characterized its holding as a The limited qualification to the rule in Coleman v. Thompson, 501 U.S. 722, 752-53 (1991), that an attorney s negligence in a postconviction proceeding does not establish cause for procedural default. The Court noted the reality that when an initial-review collateral proceeding is the first designated proceeding for a prisoner to raise a claim of ineffective assistance of trial counsel, the collateral proceeding is in many prisoner s direct appeal . . . . 3 ways the equivalent of a Martinez, 132 S. Ct. at 1317. Accordingly, exhaust ineffective proceedings collateral while might certain claims, assistance constitute the Martinez in cause rule initial-review for did failure not to concern attorney errors in other kinds of proceedings including appeals from initial-review collateral proceedings . . . . Id. at 1320. Thus, even assuming that Johnson could raise his instant ineffective assistance claim for the first time only in his state counsel postconviction at properly his proceeding, postconviction exhausted at that he was represented hearing, and his hearing. Instead, by claim was Johnson is asserting that his attorney improperly failed to preserve his ineffective assistance claim on appeal from the denial of his postconviction petition. However, Martinez assures that Johnson got his a day in deprivation court of constitute cause. a at second original day postconviction [i.e. an appeal] hearing; does not Arnold v. Dormire, 675 F.3d 1082, 1087 (8th Cir. 2012). Accordingly, because Johnson alleges only ineffective assistance of appellate postconviction counsel, his allegations do not constitute cause for his failure to exhaust under the limited exception in Martinez. the general postconviction Coleman counsel rule cannot Instead, his claims fall under that ineffective constitute 4 cause assistance for of procedural default. the case As such, the district court correctly declined to stay pending Johnson s attempt to exhaust in a second postconviction petition. We thus affirm the district court s judgment. Johnson s motion for appointment of counsel. oral argument adequately because presented in the the facts and materials We deny We dispense with legal contentions are before this and court argument would not aid the decisional process. AFFIRMED 5