Jesse Dunaway v. Director of the VA DOC


UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion certificate of appealability (Local Rule 22(a)) [998390001-2]. Originating case number: 7:10-cv-00120-jlk-mfu. Copies to all parties and the district court/agency. [998537734] [10-6879]

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Jesse Dunaway v. Director of the VA DOC Doc. 0 Case: 10-6879 Document: 18 Date Filed: 03/04/2011 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6879 JESSE DUNAWAY, Petitioner - Appellant, v. DIRECTOR OF THE VIRGINIA DEPARTMENT OF CORRECTIONS,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 Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. Case: 10-6879 Document: 18 Date Filed: 03/04/2011 Page: 2 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, for being an conviction 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." 473 (2000)(emphasis added). shown any room for debate Slack v. McDaniel, 529 U.S. We do not believe that Dunaway has regarding the correctness of the district court's procedural ruling. "If a state court clearly 2 Case: 10-6879 Document: 18 Date Filed: 03/04/2011 Page: 3 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 appellate conviction procedural federal phases constitutional or risk claims during the trial and post"the an waiving This those claims during that proceedings). default rule court in has stated set forth Slayton constitutes adequate and independent state law ground for decision." v. Pruett, 125 F.3d 192, 196 (4th Cir. 1997). "absent cause and prejudice or a miscarriage Mu'min Consequently, of justice to excuse the procedural default," a federal court cannot review Dunaway's first three claims. 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 Wright v. Angelone, 151 F.3d 151, disagreed. The district court ruled on the merits of Dunaway's ineffective assistance of counsel claim, so we must consider 3 Case: 10-6879 Document: 18 Date Filed: 03/04/2011 Page: 4 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 of proceedings. petitioner To establish must ineffective that assistance counsel, demonstrate counsel's representation "fell below an objective standard of reasonableness," (1984), and Strickland "the v. Washington, 466 U.S. 668, 688 the that deficient performance prejudiced 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 we state decline court to proceeding," hold that the id. 2254(d)(2). court's Consequently, district 4 Case: 10-6879 Document: 18 Date Filed: 03/04/2011 Page: 5 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 of the denial of a showing constitutional right," 28 U.S.C. 2253(c), he has failed to make the requisite of showing to We warrant dispense the with issuance oral of a certificate appealability. 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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