Donald Herrington v. Harold Clarke
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting motion to proceed in forma pauperis (FRAP 24) [1000060680-2]; granting in part, denying in part motion for a certificate of appealability (Local Rule 22(a)) [1000033180-2]. Originating case number: 1:16-cv-00412-AJT-MSN Copies to all parties and the district court/agency. .. [17-6252]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Petitioner - Appellant,
HAROLD CLARKE, Director of the Department of Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Anthony J. Trenga, District Judge. (1:16-cv-00412-AJT-MSN)
Submitted: August 1, 2017
Decided: August 17, 2017
Before KING and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Dismissed in part, vacated in part, and remanded by unpublished per curiam opinion.
Donald Herrington, Appellant Pro Se. Robert H. Anderson, III, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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Donald Herrington seeks to appeal the district court’s order denying relief on his
28 U.S.C. § 2254 (2012) petition. The order is not appealable unless a circuit justice or
judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1)(A) (2012).
certificate of appealability will not issue absent “a substantial showing of the denial of a
constitutional right.” Id. § 2253(c)(2) (2012). When the district court denies relief on the
merits, a prisoner satisfies this standard by demonstrating that “reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or wrong.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322,
336-38 (2003). When the district court denies relief on procedural grounds, the prisoner
must demonstrate both that the dispositive procedural ruling is debatable, and that the
petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at
Herrington alleged in claim (5) of his § 2254 petition that his waiver of the right to
counsel before trial was not knowing, voluntary, and intelligent. The district court held
that this claim was procedurally defaulted based on the Virginia Supreme Court’s refusal
to consider the claim under the procedural rule announced in Slayton v. Parrigan, 205
S.E.2d 680, 682 (Va. 1974) (holding that state habeas petitioner may not raise for first
time in habeas petition nonjurisdictional claims that could have been presented at trial or
on direct appeal). On appeal, Herrington argues that Slayton’s rule is not an adequate
procedural rule as applied to claim (5), and therefore, the claim is not procedurally
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A federal habeas claim is procedurally defaulted when a state court declines to
consider the claim’s merits on the basis of an adequate and independent state procedural
rule. Prieto v. Zook, 791 F.3d 465, 468 (4th Cir. 2015). “A state procedural rule is
adequate if it is consistently or regularly applied” by state courts, Reid v. True, 349 F.3d
788, 804 (4th Cir. 2003), and a rule is independent “if it does not depend on a federal
constitutional ruling,” Fisher v. Angelone, 163 F.3d 835, 844 (4th Cir. 1998) (alterations
and internal quotation marks omitted). In the interests of comity and federalism, federal
courts will not review procedurally defaulted claims unless the petitioner demonstrates
either cause and prejudice to excuse the default or that a fundamental miscarriage of
justice would result from the failure to entertain the claim. Prieto, 791 F.3d at 468-69.
We have observed that “[a] federal habeas court does not have license to question
a state court’s finding of procedural default or to question whether the state court
properly applied its own law.” Sharpe v. Bell, 593 F.3d 372, 377 (4th Cir. 2010) (internal
quotation marks omitted). However, “[t]he assessment of whether a particular state
procedure is independent and adequate, so as to bar consideration of the merits of a
federal constitutional claim, is a question of federal, not state, law.” Brown v. Lee, 319
F.3d 162, 169 (4th Cir. 2003) (internal quotation marks omitted); see also Cone v. Bell,
556 U.S. 449, 465 (2009) (“The adequacy of state procedural bars to the assertion of
federal questions is not within the State’s prerogative finally to decide; rather, adequacy
is itself a federal question.” (alterations, ellipsis, and internal quotation marks omitted)).
Although we have “previously determined that Slayton is an adequate state
procedural rule,” we must consider whether Slayton is “adequate as applied” to claim (5).
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Reid, 349 F.3d at 805. The Virginia Supreme Court held that review of claim (5) was
barred by Slayton because the claim raised a nonjurisdictional issue that could have been
presented at trial and on direct appeal but was not. However, Herrington’s waiver of
counsel claim was in fact jurisdictional. As the Supreme Court has recognized, “[i]f the
accused . . . is not represented by counsel and has not competently and intelligently
waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a
valid conviction and sentence depriving him of his life or his liberty.” Johnson v. Zerbst,
304 U.S. 458, 468 (1938); see also Lackawanna Cty. Dist. Attorney v. Coss, 532 U.S.
394, 404 (2001); Superintendent of Powhatan Corr. Ctr. v. Barnes, 273 S.E.2d 558, 561
(Va. 1981). Because there is no evidence that Virginia courts regularly apply the Slayton
rule to similar jurisdictional claims, we conclude that the adequacy of Slayton as applied
to claim (5) is debatable. Consequently, the district court’s determination that claim (5)
is procedurally defaulted is likewise debatable.
We cannot adequately address the potential merit of claim (5) because the record
before us does not include the state court transcripts pertinent to Herrington’s waiver of
the right to counsel. Accordingly, we grant a certificate of appealability on this claim,
vacate the district court’s dismissal of the claim, and remand for further consideration by
the district court on the merits after the court obtains any necessary state court transcripts.
Herrington also asserted in his state habeas petition and § 2254 petition that his
counsel on direct appeal was ineffective for failing to raise 14 of the claims contained in
his state habeas petition. The Virginia Supreme Court rejected this argument, reasoning
that counsel retains discretion to select the issues to pursue on appeal. Although “it is
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difficult to demonstrate that counsel was incompetent” in his choice to present one
appellate issue rather than another, a defendant may prove that his counsel’s performance
was deficient by showing that “a reasonably competent attorney would have found one
nonfrivolous issue warranting a merits brief.” Smith v. Robbins, 528 U.S. 259, 288
(2000); see also Davila v. Davis, 137 S. Ct. 2058, 2067 (2017) (“Declining to raise a
claim on appeal . . . is not deficient performance unless that claim was plainly stronger
than those actually presented to the appellate court.”); Evitts v. Lucey, 469 U.S. 387, 397
(1985) (recognizing right to effective assistance of counsel on appeal). Here, the Virginia
Supreme Court did not address the potential merit of any claim that Herrington argued
should have been raised on appeal, perhaps because the court mistakenly concluded that
Herrington failed to identify any such claims.
Applying 28 U.S.C. § 2254(d)’s deferential standard, the district court agreed with
the Virginia Supreme Court. However, the district court did not address the potential
merit of the claims Herrington asserted were nonfrivolous and warranted a merits brief on
Rather, the district court’s analysis set forth the applicable clearly
established law and summarily concluded on the merits that Herrington had not made the
requisite showing under Strickland v. Washington, 466 U.S. 668 (1984), and § 2254(d).
We conclude that the district court’s limited discussion and the current record are
insufficient for this court to properly review the merits of Herrington’s ineffective
assistance of appellate counsel claim. Like the district court, we have none of the state
court pretrial or trial transcripts prepared in this case, and it is difficult to imagine how
we might fairly consider Herrington’s ineffective assistance of appellate counsel claim
without those transcripts.
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This is particularly problematic given that the record as
constituted contains evidence indicating that Petitioner’s ineffective assistance of
appellate counsel claim is, at least, a debatable constitutional claim. Accordingly, we
grant a certificate of appealability on Herrington’s ineffective assistance of appellate
counsel claim, vacate the district court’s dismissal of the claim, and remand to the district
court for further consideration once the court has obtained any necessary state court
We have independently reviewed Herrington’s other claims on appeal and
conclude that Herrington is not entitled to a certificate of appealability on those claims.
Accordingly, we grant leave to proceed in forma pauperis, grant Herrington’s motion for
a certificate of appealability as to claim (5) and Herrington’s ineffective assistance of
appellate counsel claim, vacate the district court’s dismissal of those claims, and remand
for further proceedings on those claims. * We deny Herrington’s motion for a certificate
of appealability as to all other claims and dismiss this appeal as to those claims. We
dispense with oral argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would not aid the decisional
DISMISSED IN PART,
VACATED IN PART,
By this disposition, we express no view as to the ultimate merit of those claims.
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