Jesse Dunaway v. Director of the VA DOC

Filing

UNPUBLISHED PER CURIAM OPINION filed.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]

Jesse Dunaway v. Director of the VA DOC

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Case: 10-6879

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Date Filed: 03/04/2011

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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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

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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 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

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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 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

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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. 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

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