McNemar v. Plumley

Filing 34

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION 26 , GRANTING RESPONDENTS MOTION TO DISMISS [DKT. NO. 20], AND DENYING CERTIFICATE OF APPEALABILITY. The Court ADOPTS the R&R 26 , GRANTS Plumleys motion to dismiss 20 , and DENIES a nd DISMISSES the Petition WITH PREJUDICE 1 . The Court concludes that McNemar has failed to make the requisite showing, and DENIES a certificate of appealability. The Court DIRECTS the Clerk to enter a separate judgment order, and to remove this case from the Courts active docket. Signed by District Judge Irene M. Keeley on 3/24/17. (Attachments: # 1 Certified Mail Return Receipt)(jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
RICHARD B. MCNEMAR,
Petitioner,
v.

//

CIVIL ACTION NO. 1:15CV237
(Judge Keeley)

MARVIN PLUMLEY, Warden,
Respondent.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 26], GRANTING RESPONDENT’S MOTION TO
DISMISS [DKT. NO. 20], AND DENYING CERTIFICATE OF APPEALABILITY
On December 28, 2015, the petitioner, Richard B. McNemar
(“McNemar”), filed a Petition Under 28 U.S.C. § 2254 for Writ of
Habeas Corpus (“Petition”) (Dkt. No. 1). Pursuant to 28 U.S.C.
§ 636 and LR PL P 2, the Court referred the case to the Honorable
James E. Seibert, United States Magistrate Judge, for initial
review.

Thereafter,

the

respondent,

Warden

Marvin

Plumley

(“Plumley”), filed a motion to dismiss the Petition as procedurally
barred (Dkt. No. 20).
On May 20, 2016, Magistrate Judge Seibert entered a Report and
Recommendation (“R&R”), which recommended that the Court grant
Plumley’s motion to dismiss and deny and dismiss the Petition (Dkt.
No. 26). McNemar filed timely objections to the R&R (Dkt. No. 28).
For the reasons that follow, the Court ADOPTS the R&R (Dkt. No.
26), GRANTS Plumley’s motion to dismiss (Dkt. No. 20), and DENIES
and DISMISSES the Petition WITH PREJUDICE (Dkt. No. 1).

MCNEMAR V. PLUMLEY

1:15CV237

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 26], GRANTING RESPONDENT’S MOTION TO
DISMISS [DKT. NO. 20], AND DENYING CERTIFICATE OF APPEALABILITY
I. BACKGROUND
A.

State Proceedings
In May 2008, a grand jury in Harrison County, West Virginia,

indicted McNemar on various sexual molestation charges involving
the granddaughter of McNemar’s girlfriend (Dkt. No. 19-5 at 44).
Following a trial in the Circuit Court of Harrison County, West
Virginia (“Circuit Court”), a jury convicted McNemar of one count
of sexual abuse in the first degree and one count of sexual abuse
by a parent, guardian, custodian, or person in a position of trust
(Dkt. No. 19-1 at 10). Following the conviction, McNemar filed a
motion for a new trial and a motion for a post-verdict judgment of
acquittal. The Circuit Court denied both motions, id. at 52, and on
April

23,

2009,

sentenced

McNemar

to

concurrent

terms

of

imprisonment totaling 10-20 years. Id. at 10.
McNemar then retained attorney Thomas G. Dyer (“Dyer”) to
represent him on his direct appeal. Although Dyer filed a notice of
appeal on May 20, 2009, id. at 20-25, he never actually filed an
appeal on McNemar’s behalf. Instead, he advised McNemar to pursue
his “chief, if not sole complaint,” of ineffective assistance of
trial counsel as a habeas petition. Id. at 33.

2

MCNEMAR V. PLUMLEY

1:15CV237

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 26], GRANTING RESPONDENT’S MOTION TO
DISMISS [DKT. NO. 20], AND DENYING CERTIFICATE OF APPEALABILITY
On August 21, 2009, McNemar filed a pro se petition for a writ
of habeas corpus in the Circuit Court. That court then appointed
Dyer to assist McNemar, after which Dyer filed an amended petition
raising the following issues: insufficient indictment, coerced
confession, suppression of helpful evidence, perjured testimony,
transcript falsification, unfulfilled plea bargain, ineffective
assistance of counsel, failure to provide a copy of the indictment,
defects in the indictment, non-disclosure of grand jury minutes,
refusal to turn over witness notes, erroneous evidentiary rulings,
prejudicial statements, sufficiency of the evidence, and mistaken
advice of counsel. Id. at 47-51.
The Circuit Court in Harrison County held an omnibus hearing
to address the issues in the amended petition on March 31 and April
1, 2010. Id. at 48. In a comprehensive 31-page order, the Circuit
Court denied McNemar’s amended petition. Id. at 76. In the course
of doing so, it specifically concluded that, having been “cautioned
. . . at the outset of the hearing that any grounds not raised in
[the] hearing would be deemed waived,” McNemar had waived all
grounds not raised in the petition. Id. at 75. McNemar appealed
these rulings to the Supreme Court of Appeals of West Virginia
(“Supreme Court of Appeals”), which affirmed the Circuit Court’s

3

MCNEMAR V. PLUMLEY

1:15CV237

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 26], GRANTING RESPONDENT’S MOTION TO
DISMISS [DKT. NO. 20], AND DENYING CERTIFICATE OF APPEALABILITY
rulings in a memorandum decision dated November 30, 2012 (Dkt. No.
19-2 at 79).
On March 14, 2013, McNemar filed a second habeas petition in
the Circuit Court, asserting twelve additional grounds for relief
(Dkt. No. 19-3 at 4).1 In his petition, McNemar alleged that his
habeas counsel, Dyer, had misadvised him not to take a direct
appeal, had failed to frame certain issues as constitutional, and
had not effectively examined witnesses during the omnibus hearing.
Id. at 16, 20, 23. In the remaining grounds, he alleged that Dyer
had been ineffective as habeas counsel for failing to raise certain
alleged instances of trial error and ineffective assistance of
trial counsel. The Circuit Court appointed Jason T. Gain (“Gain”)
to represent McNemar. Although Gain filed an amended petition, id.
at 50, McNemar, acting pro se, filed a supplement to that petition,
in which he alleged additional examples of Dyer’s ineffectiveness
as habeas counsel. McNemar further complained that Gain had failed
to include in the amended petition all the claims he wished to
exhaust in state court (Dkt. No. 19-4 at 2-37).

1

While this petition was pending, McNemar filed a § 2254
petition in this district that was docketed before the Honorable
John Preston Bailey, United States District Judge. McNemar
voluntarily dismissed this petition without prejudice on June 12,
2013 (Dkt. No. 1-1 at 1-4).
4

MCNEMAR V. PLUMLEY

1:15CV237

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 26], GRANTING RESPONDENT’S MOTION TO
DISMISS [DKT. NO. 20], AND DENYING CERTIFICATE OF APPEALABILITY
Following an omnibus hearing held on November 19, 2014, the
Circuit Court denied McNemar’s second petition. Id. at 45-51. The
court concluded that Dyer had provided effective assistance during
the first habeas proceeding, and that McNemar’s other claims were
barred by waiver or res judicata. Id. at 47. Following McNemar’s
appeal, the Supreme Court of Appeals affirmed these rulings in a
memorandum decision dated November 6, 2015. Id. at 49, 54.
B.

The § 2254 Petition
On December 28, 2015, McNemar filed a § 2254 Petition in this

Court, claiming to have exhausted his state remedies and asserting
two grounds for relief (Dkt. No. 1). As his first ground, McNemar
claimed that Dyer, whom he had first retained to represent him on
direct appeal, had provided ineffective assistance on appeal by
advising McNemar “that he had no viable or non-frivolous issues on
appeal[,] and it would be best to proceed on a Writ of Habeas
Corpus.” Id. at 6.2 More particularly, McNemar contended that Dyer
should have raised arguments concerning jury bias and improper jury
instructions on direct appeal, rather than present weaker arguments
on collateral attack. Id. at 7. As his second ground, McNemar

2

McNemar phrased this ground as “Petitioner was denied
effective assistance of habeas counsel (while acting as hired
appellate counsel) by his failure to take up a direct appeal of
Petitioner’s criminal conviction” (Dkt. No. 1 at 6).
5

MCNEMAR V. PLUMLEY

1:15CV237

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 26], GRANTING RESPONDENT’S MOTION TO
DISMISS [DKT. NO. 20], AND DENYING CERTIFICATE OF APPEALABILITY
asserted that Dyer had provided ineffective assistance as habeas
counsel by failing to ask “the Circuit Court for a continuance in
order to supplement the argument that the State withheld [an]
interview report from Petitioner’s trial counsel.” Id. at 10-11.
C.

Respondent’s Answer and Motion to Dismiss
On January 26, 2016, Magistrate Judge Seibert directed the

respondent,

Plumley,

to

show

cause

on

the

limited

issue

of

timeliness (Dkt. No. 13). After receiving an extension of time,
Plumley filed his answer on March 21, 2016, in which he conceded
that

the

Petition

was

timely

filed

and

that

McNemar

had

successfully exhausted his state remedies (Dkt. No. 19 at 2-13).
Plumley also filed a motion to dismiss the Petition (Dkt. No. 20)
on the basis that McNemar was procedurally barred “from raising his
claims in the guise of an ineffective assistance claim, when in
fact they were no more than ordinary trial error” (Dkt. No. 21 at
2). He further argued that 28 U.S.C. § 2254(i) precluded McNemar
from asserting the ineffective assistance of his state habeas
counsel as a ground for relief. Id. at 1-2.
Anticipating that McNemar would rely on Martinez v. Ryan, 566
U.S. 1 (2012), and Trevino v. Thaler, 133 S.Ct. 1911 (2013), to
argue that his claim of ineffective assistance of habeas counsel
allows the Court to address an otherwise procedurally defaulted
6

MCNEMAR V. PLUMLEY

1:15CV237

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 26], GRANTING RESPONDENT’S MOTION TO
DISMISS [DKT. NO. 20], AND DENYING CERTIFICATE OF APPEALABILITY
claim, Plumley contended that those cases were inapplicable because
they involved underlying claims for ineffective assistance of trial
counsel (Dkt. No. 21 at 2-4). In response, McNemar asserted that
Plumley “is attempting to confuse this Court with [his] facile
response by not mentioning that Petitioner has stated his appellate
counsel was ineffective. . . . Respondent is leaving out that
Petitioner’s habeas counsel (appointed by the Court), was also his
direct appellate counsel” (Dkt. No. 24 at 3).
At bottom, McNemar’s argument before Magistrate Judge Seibert
was that both Martinez and Trevino should apply to his case because
the

allegedly

ineffective

assistance

of

his

habeas

counsel

prevented him from raising the jury bias and instruction issues on
direct appeal. Id. at 3-5. Further, he contended that the Brady
violation

asserted

as

his

second

ground

should

overcome

any

procedural bar because it meets the “cause and prejudice” and
“miscarriage of justice” standards for doing so. Id. at 5-6.
D.

R&R and Objections
In his R&R, Magistrate Judge Seibert recommended that the

Court grant Plumley’s motion to dismiss and deny the Petition (Dkt.
No. 26 at 5). He concluded that § 2254(i) precluded McNemar’s claim
that Dyer was ineffective in his role as habeas counsel. Further,
he agreed with Plumley that neither Martinez nor Trevino provides
7

MCNEMAR V. PLUMLEY

1:15CV237

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 26], GRANTING RESPONDENT’S MOTION TO
DISMISS [DKT. NO. 20], AND DENYING CERTIFICATE OF APPEALABILITY
a pathway for McNemar to overcome any procedural bar to his
arguments. Id. at 4-5. McNemar objected to the R&R on May 31, 2016,
contending that Martinez applies to his case, and that he is
actually innocent (Dkt. No. 28).
II. STANDARDS OF REVIEW
A.

Pro Se Pleadings
The Court must liberally construe pro se pleadings. Estelle v.

Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291,
1295 (4th Cir. 1978). A pro se complaint is subject to dismissal,
however, if the Court cannot reasonably read the pleadings to state
a valid claim on which the plaintiff could prevail. Barnett v.
Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not
construct the plaintiff’s legal arguments for him, nor should it
“conjure up questions never squarely presented.” Beaudett v. City
of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
B.

Report and Recommendation
When reviewing a magistrate judge’s R&R, the Court need review

de novo only those portions of the R&R to which an objection is
timely made. 28 U.S.C. § 636(b)(1)(C). On the other hand, “the
Court may adopt, without explanation, any of the magistrate judge’s
recommendations

to

which

the

8

prisoner

does

not

object.”

MCNEMAR V. PLUMLEY

1:15CV237

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 26], GRANTING RESPONDENT’S MOTION TO
DISMISS [DKT. NO. 20], AND DENYING CERTIFICATE OF APPEALABILITY
Dellacirprete v. Gutierrez, 479 F. Supp. 2d 600, 603-04 (N.D.W. Va.
2007) (citing Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983)).
Courts will uphold those portions of a recommendation as to which
no objection has been made unless they are “clearly erroneous.” See
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005).
III. DISCUSSION
Under 28 U.S.C. § 2254, the Court may only entertain an
application for a writ of habeas corpus from a state prisoner “on
the ground that he is in custody in violation of the Constitution
or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
“[I]f a claim is exhausted in state court and not procedurally
defaulted, then it was adjudicated on the merits and subject to
review under . . . § 2254(d).” Gray v. Zook, 806 F.3d 783, 798 (4th
Cir. 2015). A court may not grant a writ regarding a claim
“adjudicated on the merits in State court” unless the adjudication:
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of facts in light of the
evidence presented in the State court proceeding.

9

MCNEMAR V. PLUMLEY

1:15CV237

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 26], GRANTING RESPONDENT’S MOTION TO
DISMISS [DKT. NO. 20], AND DENYING CERTIFICATE OF APPEALABILITY
28

U.S.C.

§

2254(d).

In

addition,

“[t]he

ineffectiveness

or

incompetence of counsel during Federal or State collateral postconviction proceedings shall not be a ground for relief in a
proceeding arising under section 2254.” Id. § 2254(i).
A.

McNemar’s First Ground
As his first ground, McNemar claims that he “was deprived of

valuable constitutional appellate review” because Dyer, whom he
hired to effectuate his direct appeal, advised him there were no
non-frivolous issues to present on appeal (Dkt. No. 1 at 6).
McNemar contends that this advice was constitutionally deficient
because Dyer failed to identify and present appellate arguments
regarding the actual bias of two jurors, the implied bias of seven
jurors,

and

a

jury

instruction

concerning

whether

McNemar’s

admissions were voluntary. Id. at 7-8. Although this first ground
is not barred by 28 U.S.C. § 2254(i), the Court concludes that it
was procedurally defaulted by McNemar in state court. The Court
further concludes that McNemar has failed to establish “cause and
prejudice” or a “miscarriage of justice” necessary to overcome the
resulting bar to his petition.
1.

28 U.S.C. § 2254(i)

Title 28 U.S.C. § 2254(i) prohibits the Court from reviewing
“ineffectiveness or incompetence of counsel during . . . State
10

MCNEMAR V. PLUMLEY

1:15CV237

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 26], GRANTING RESPONDENT’S MOTION TO
DISMISS [DKT. NO. 20], AND DENYING CERTIFICATE OF APPEALABILITY
collateral post-conviction proceedings.” The Court, however, must
liberally construe McNemar’s Petition in light of his pro se
status. Estelle, 429 U.S. at 106. When it is so construed, McNemar
clearly is not seeking relief based on Dyer’s representation in his
habeas case. Although McNemar states that he “was denied effective
assistance

of

habeas

counsel,”

the

Petition

qualifies

that

allegation, asserting clearly that, at the relevant time, Dyer was
“acting as hired appellate counsel” (Dkt. No. 1 at 6).
There can be no debate that McNemar had a constitutional right
to the effective assistance of counsel on his first criminal
appeal. See Evitts v. Lucey, 469 U.S. 387 (1985); Douglas v.
California, 372 U.S. 353 (1963); Richardson v. Branker, 668 F.3d
128, 137-44 (4th Cir. 2012). Even if pled inartfully, it is plain
that what McNemar seeks in his first ground for relief is to
vindicate this right. Therefore, § 2254(i) does not bar McNemar's
claim for ineffective assistance of counsel on direct appeal,
rather than in a “collateral post-conviction proceeding[].”
2.

Procedural Default

Plumley, however, contends that McNemar procedurally defaulted
this first ground in state court, and is thus barred from raising
the claim here (Dkt. No. 21 at 2). Procedural default is an
equitable doctrine that acts as a corollary to the exhaustion
11

MCNEMAR V. PLUMLEY

1:15CV237

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 26], GRANTING RESPONDENT’S MOTION TO
DISMISS [DKT. NO. 20], AND DENYING CERTIFICATE OF APPEALABILITY
requirement of § 2254. Dretke v. Haley, 541 U.S. 386, 392 (2004).
In federal habeas proceedings, the Court “will not review a
question of federal law decided by a state court if the decision of
that court rests on a state law ground that is independent of the
federal question and adequate to support the judgment . . . whether
the state law ground is substantive or procedural.” Coleman v.
Thompson, 501 U.S. 722, 729 (1991). This “adequate and independent
state ground doctrine” prevents petitioners from exhausting their
federal

claims

in

state

court

through

purposeful

procedural

default. Id. at 732.
Here, the Circuit Court denied McNemar’s claim of ineffective
assistance of appellate counsel when he raised it for the first
time in his second habeas petition, finding that he had waived it,
or it was barred by res judicata (Dkt. No. 19-4 at 45). The Supreme
Court of Appeals affirmed this ruling, concluding that “the circuit
court did not err in finding that ‘[a]ll other claims for [h]abeas
relief have either been waived or barred by res judicata’ pursuant
to . . . Syllabus Point 2 of Losh v. McKenzie” (Dkt. No. 19-5 at
48).
In considering this issue, the Supreme Court of Appeals
reviewed the transcript of McNemar’s first habeas omnibus hearing
before the Circuit Court, and found it significant that, during
12

MCNEMAR V. PLUMLEY

1:15CV237

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 26], GRANTING RESPONDENT’S MOTION TO
DISMISS [DKT. NO. 20], AND DENYING CERTIFICATE OF APPEALABILITY
that hearing, McNemar acknowledged he was waiving any grounds then
known but not asserted. Based on that statement, the appellate
court concluded that McNemar “had adequate opportunity at the first
habeas hearing to raise any issue he desired.” Id. at 48-49.
The “waiver” provision referenced by the Supreme Court of
Appeals is found at W. Va. Code § 53-4A-1(c), and provides as
follows:
[A] contention or contentions and the grounds in fact or
law relied upon in support thereof shall be deemed to
have been waived when the petitioner could have advanced,
but intelligently and knowingly failed to advance, such
contention or contentions and grounds . . . in a
proceeding or proceedings on a prior petition or
petitions filed under the provisions of this article
. . . .
In Losh v. McKenzie, the Supreme Court of Appeals announced the
following rule of res judicata:
A judgment denying relief in post-conviction habeas
corpus is res judicata on questions of fact or law which
have been fully and finally litigated and decided, and as
to issues which with reasonable diligence should have
been known but were not raised, and this occurs where
there has been an omnibus habeas corpus hearing at which
the applicant for habeas corpus was represented by
counsel or appeared pro se having knowingly and
intelligently waived his right to counsel.
Syl. Pt. 2, Losh v. McKenzie, 277 S.E.2d 606 (W. Va. 1981).
In light of this well-established authority, McNemar cannot be
heard to argue here that the procedural bar on his claim of

13

MCNEMAR V. PLUMLEY

1:15CV237

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 26], GRANTING RESPONDENT’S MOTION TO
DISMISS [DKT. NO. 20], AND DENYING CERTIFICATE OF APPEALABILITY
ineffective assistance was not based on an adequate and independent
state law ground. See Coleman, 501 U.S. at 729.
a.

Adequacy of the State Law Ground

A state procedural rule is adequate if “firmly established and
regularly followed.” Walker v. Martin, 562 U.S. 307, 316 (2011).
The rule must be firmly established and regularly applied at the
time a petitioner ran afoul of it, not when it was applied by the
state court. See Leyva v. Williams, 504 F.3d 357, 366-67 (3d Cir.
2007). “As a general matter, whenever a procedural rule is derived
from

state

statutes

.

.

.

the

rule

is

necessarily

firmly

established.” O’Dell v. Netherland, 95 F.3d 1214, 1241 (4th Cir.
1996). A rule is “regularly followed” if “applied consistently to
cases that are procedurally analogous,” including “cases in which
the particular claim could have been raised previously but was
not.” Jones v. Sussex I State Prison, 591 F.3d 707, 716 (4th Cir.
2010) (quoting McCarver v. Lee, 221 F.3d 583, 589 (4th Cir. 2000)).
As

waiver

principles
consistently

of

and
West

applied

res

judicata

are

both

Virginia

jurisprudence

by

courts,

state

they

firmly
that

established
have

provided

been

adequate

grounds of support for the state court’s ruling. Walker, 562 U.S.
at 316. Section 53-4A-1(c) waiver is a statutory rule enacted in

14

MCNEMAR V. PLUMLEY

1:15CV237

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 26], GRANTING RESPONDENT’S MOTION TO
DISMISS [DKT. NO. 20], AND DENYING CERTIFICATE OF APPEALABILITY
1967 and thus “necessarily firmly established.” O’Dell, 95 F.3d at
1241.
Furthermore, the doctrine of res judicata articulated in Losh
v. McKenzie is firmly established because the Supreme Court of
Appeals articulated it in a syllabus point nearly thirty years
prior

to

McNemar’s

first

habeas

petition.

In

West

Virginia,

“[s]igned opinions containing original syllabus points have the
highest precedential value because the Court uses original syllabus
points to announce new points of law.” Syl. Pt. 1, State v.
McKinley, 764 S.E.2d 303 (W. Va. 2014).
Nor has the Supreme Court of Appeals applied these rules
inconsistently in cases involving claims of ineffective assistance
of counsel. See, e.g., Hatcher v. Ballard, No. 15-0414, 2016 WL
2979538,

at

*5

(W.

Va.

May

23,

2016)

(memorandum

decision)

(declining to address ineffective assistance of counsel claim that
could have been raised in prior habeas proceedings); State v.
Cline, No. 14-1098, 2015 WL 36944312, at *2 (W. Va. June 15, 2015)
(same); Markley v. Coleman, 601 S.E.2d 49, 55 (W. Va. 2004) (noting
that ineffective assistance claims can be waived); see also Boothe
v. Ballard, No. 2:14cv25165, 2016 WL 1275054, at *46-*49 (S.D.W.
Va. Mar. 31, 2016) (holding that waiver under W. Va. Code § 53-4A1(c) is adequate and independent where “a petitioner is represented
15

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1:15CV237

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 26], GRANTING RESPONDENT’S MOTION TO
DISMISS [DKT. NO. 20], AND DENYING CERTIFICATE OF APPEALABILITY
by counsel and fails to appeal certain claims to the” Supreme Court
of Appeals); Howard v. Ballard, No. 5:08CV112, 2009 WL 1872970
(N.D.W. Va. June 29, 2009) (“[T]here is no evidence that § 53-4A1(c) has not been regularly and consistently applied.”).
b.

Independence of the State Law Ground

The decision of the Supreme Court of Appeals barring McNemar’s
claim for ineffective assistance of appellate counsel also was
independent

of

federal

law.

A

state

procedural

rule

is

not

independent if it “depend[s] on a federal constitutional ruling on
the merits.” Stewart v. Smith, 536 U.S. 856, 860 (2002). In other
words, if the application of a state procedural bar such as res
judicata is predicated on a federal constitutional ruling, it does
not constitute an independent ground. Foster v. Chapman, 136 S.Ct.
1737, 1745-47 (2016); see also Ake v. Oklahoma, 470 U.S. 68, 75
(1985). Moreover, the Supreme Court’s established presumption of
federal review includes those cases not only where a state court
judgment “rest[s] primarily on federal law,” but also where it
“fairly appears” to be “interwoven with federal law.” Coleman, 501
U.S. at 739.
Here, the relevant discussion by the Supreme Court of Appeals
characterized Dyer’s advice on direct appeal as “legally sound,” a
topic not discussed by the Circuit Court (Dkt. No. 19-5 at 47).
16

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1:15CV237

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 26], GRANTING RESPONDENT’S MOTION TO
DISMISS [DKT. NO. 20], AND DENYING CERTIFICATE OF APPEALABILITY
This cursory reference pertained solely to the parties’ dispute
over whether McNemar could argue “ordinary trial error in the guise
of ineffective assistance of habeas counsel,” as well as McNemar’s
contention that he was “coerced into not pursuing a criminal
appeal.” Id. This reference was in no way “interwoven” with the
court’s affirmance of the rulings of the Circuit Court on the
grounds of waiver and res judicata. See Oken v. Corcoran, 220 F.3d
259,

264-65

(4th

Cir.

2000)

(concluding

that

an

“antecedent

determination” involving reference to federal law did not make the
decision to apply a procedural bar “interwoven” with federal law).
Therefore, the bar by the Supreme Court of Appeals was based on
adequate and independent state law grounds, and McNemar is not free
to pursue those procedurally defaulted claims here.
3.

Exceptions to Procedural Default

The doctrine of procedural default illustrates the principle
that

“[f]ederal

courts

sitting

in

habeas

.

.

.

are

not

an

alternative forum for trying . . . issues which a prisoner made
insufficient effort to pursue in state proceedings.” Trevino, 133
S.Ct. at 1922 (Roberts, C.J., dissenting) (quoting Williams v.
Taylor, 529 U.S. 420, 437 (2000)). Nonetheless, a petitioner may
advance procedurally defaulted claims under § 2254 if he “can
demonstrate cause for the default and actual prejudice as a result
17

MCNEMAR V. PLUMLEY

1:15CV237

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 26], GRANTING RESPONDENT’S MOTION TO
DISMISS [DKT. NO. 20], AND DENYING CERTIFICATE OF APPEALABILITY
of the alleged violation of federal law, or demonstrate that
failure to consider the claims will result in a fundamental
miscarriage

of

justice.”

Coleman,

501

U.S.

at

750.

McNemar,

however, has established neither “cause and prejudice,” nor “a
fundamental miscarriage of justice.”
a.

Cause and Prejudice

“‘Cause’ under the cause and prejudice standard must be
something external to the petitioner, something that cannot fairly
be attributed to him . . . .” Id. at 753. Such an “objective factor
external to the defense” might include unavailability of the
factual or legal basis for a claim or interference by officials.
Id. (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). Notably,
litigants must bear the risk of attorney error; simple ignorance or
inadvertence of counsel will not suffice to establish cause. Id.
Attorney

error

that

rises

to

the

level

of

constitutionally

ineffective assistance, however, is sufficient to establish cause.
A failure to provide counsel as required by the Sixth Amendment
must “be imputed to the State” and is thus a factor external to the
defense. Id. at 754.
As the Supreme Court articulated in Coleman, the implicit
corollary is that a petitioner cannot establish cause based on the
inadequate

representation

of

counsel
18

to

which

he

had

no

MCNEMAR V. PLUMLEY

1:15CV237

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 26], GRANTING RESPONDENT’S MOTION TO
DISMISS [DKT. NO. 20], AND DENYING CERTIFICATE OF APPEALABILITY
constitutional right, such as counsel appointed on state collateral
review. Id. at 756-57 (“We reiterate that counsel’s ineffectiveness
will constitute cause only if it is an independent constitutional
violation.”). Nonetheless,

in Martinez v. Ryan, the Supreme Court

equitably qualified the rule in Coleman “by recognizing a narrow
exception: Inadequate assistance of counsel at initial-review
collateral proceedings may establish cause for a prisoner’s default
of a claim of ineffective assistance at trial.” 566 U.S. at 9
(emphasis added). Indeed, such a “collateral proceeding is in many
ways the equivalent of a prisoner’s direct appeal” if the state
forbids challenging the assistance of trial counsel on direct
appeal. Id. at 11. Shortly thereafter, in Trevino v. Thaler, the
Supreme Court held that ineffective assistance during initialreview

collateral

proceedings

may

also

establish

cause

for

defaulting an ineffective assistance of trial counsel claim in
states that permit such claims on direct appeal, but “make it
highly unlikely in a typical case that a defendant will have a
meaningful opportunity to raise” the claim. 133 S.Ct. at 1921.3

3

The “structure and design” of the West Virginia appellate
system is arguably contemplated by the holding in Trevino. Claiming
ineffective assistance of trial counsel on direct appeal is not
categorically forbidden, but the Supreme Court of Appeals expressly
encourages that such claims be foregone on direct review in favor
of developing a record and presenting them in a habeas proceeding.
19

MCNEMAR V. PLUMLEY

1:15CV237

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 26], GRANTING RESPONDENT’S MOTION TO
DISMISS [DKT. NO. 20], AND DENYING CERTIFICATE OF APPEALABILITY
Here, McNemar made the counseled decision to forego a direct
appeal in favor of attacking the lack of effective assistance from
his trial counsel in a habeas proceeding (Dkt. No. 19-1 at 33-34).
In his first habeas petition, McNemar raised various trial errors
and argued that his trial counsel had been ineffective. Id. at 60.4
At his first omnibus hearing, where he was represented by counsel,

Syl. Pt. 10, State v. Triplett, 421 S.E.2d 511 (W. Va. 1992) (“It
is the extremely rare case when this Court will find ineffective
assistance of counsel when such a charge is raised as an assignment
of error on a direct appeal. The prudent defense counsel first
develops the record regarding ineffective assistance of counsel in
a habeas corpus proceeding before the lower court, and may then
appeal if such relief is denied. This Court may then have a fully
developed record on this issue upon which to more thoroughly review
an ineffective assistance of counsel claim.”).
4

The Circuit Court summarized his ineffective assistance of
trial counsel allegations as follows (Dkt. No. 19-1 at 60):
The Petitioner contends that his trial counsel, Wiley
Newbold, was ineffective by failing to interview Susan
Herald and call her as a trial witness; failing to have
the victim, “O.G.” evaluated as to her competency and
recall; failing to obtain a copy of the DVD containing
the victim’s statement to Susan Herald; failing to
subpoena the victim to testify at trial and/or ask the
Court not to release her subsequent testimony in the
State’s case; failing to consult and/or retain an expert
regarding the effect of Lorcet on the Petitioner’s
statement given to law enforcement; failing to have
Petitioner evaluated by an expert to determine the impact
of the sexual abuse of Petitioner when he was a child;
and by failing to advise the Petitioner of a plea offer
made by the State.
20

MCNEMAR V. PLUMLEY

1:15CV237

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 26], GRANTING RESPONDENT’S MOTION TO
DISMISS [DKT. NO. 20], AND DENYING CERTIFICATE OF APPEALABILITY
McNemar personally acknowledged that he was waiving all claims not
raised in that habeas proceeding (Dkt. No. 19-5 at 48-49).
After both the Circuit Court and the Supreme Court of Appeals
rejected

the

claims

raised

in

his

first

petition,

including

ineffective assistance of trial counsel (Dkt. Nos. 19-1 at 76; 19-2
at 79), McNemar filed a second habeas petition, in which he
included

the

allegation

that

Dyer

had

provided

ineffective

assistance on direct appeal (Dkt. No. 19-3 at 16). The Supreme
Court of Appeals barred the claim, agreeing with the Circuit Court
that McNemar had waived it by not raising that ground in his first
habeas proceeding (Dkt. No. 19-5 at 48). McNemar now includes that
same claim in the first ground of his Petition (Dkt. No. 1 at 6-7).
As recognized, waiver and res judicata are adequate and
independent state grounds for denying any claim that Dyer provided
ineffective assistance to McNemar on direct appeal. In order to
establish

cause

for

that

procedural

default,

McNemar

must

demonstrate that an “objective factor external to [his] defense” is
responsible for his failure to raise that claim in his first habeas
proceeding. Coleman, 501 U.S. at 750.
Several of the arguments McNemar raises to advance that cause
exists fail to properly address the dispositive issue. For example,
McNemar argues that Dyer’s alleged ineffective assistance on direct
21

MCNEMAR V. PLUMLEY

1:15CV237

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 26], GRANTING RESPONDENT’S MOTION TO
DISMISS [DKT. NO. 20], AND DENYING CERTIFICATE OF APPEALABILITY
appeal in and of itself establishes cause (Dkt. No. 28 at 3). He
also argues that Dyer’s ineffective assistance on direct appeal
establishes cause for his failure to raise various trial errors
(Dkt. No. 24 at 3). Neither of these assertions address why McNemar
failed to raise his procedurally defaulted claim for ineffective
assistance of appellate counsel in the first habeas proceeding.
McNemar’s

reliance

on

Martinez

and

Trevino

likewise

is

unavailing as these cases cannot overcome the bar on his claim for
ineffective assistance of appellate counsel. The overwhelming
majority of courts to have considered the question have declined to
read Martinez any more broadly than its limiting language requires,
and have rejected the notion that the ineffective assistance of
habeas

counsel

can

lift

a

procedural

bar

on

claims

for

the

ineffective assistance of appellate counsel, rather than trial
counsel. See, e.g., McClain v. Kelly, 631 F. App’x 422, 431-33 (6th
Cir. 2015); Dansby v. Hobbs, 766 F.3d 809, 833 (8th Cir. 2014)
(“The right to appellate counsel has a different origin in the Due
Process

Clause,

and

even

‘the

right

of

appeal

itself

is

of

relatively recent origin,’ so a claim for equitable relief in that
context is less compelling.” (internal citation omitted)); Reed v.
Stevens, 739 F.3d 753, 778 n.16 (5th Cir. 2014); Hodges v. Colson,
727 F.3d 517, 531 (6th Cir. 2013) (reasoning that “the Supreme
22

MCNEMAR V. PLUMLEY

1:15CV237

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 26], GRANTING RESPONDENT’S MOTION TO
DISMISS [DKT. NO. 20], AND DENYING CERTIFICATE OF APPEALABILITY
Court meant exactly what it wrote” when it limited the Martinez
exception to “claims of ineffective assistance of counsel at
trial”); Banks v. Workman, 692 F.3d 1133, 1148 (10th Cir. 2012).
But see Nguyen v. Curry, 736 F.3d 1287, 1293-94 (9th Cir. 2013).
In particular, in the Fourth Circuit, absent the “limited
circumstances” described in Martinez and Trevino, the rule of
Coleman continues to govern: the ineffective assistance of habeas
counsel cannot establish cause for a procedural default. Fowler v.
Joyner, 753 F.3d 446, 461 (4th Cir. 2014) (quoting Martinez, 132
S.Ct. at 1320); see also Morva v. Zook, 821 F.3d 517, 532-33 (4th
Cir. 2016), petition for cert. filed. McNemar’s case simply does
not fit the “limited circumstances” recognized in Martinez. In his
first

ground,

McNemar

claims

that

Dyer

provided

ineffective

assistance on direct appeal (Dkt. No. 1 at 6-7). Martinez and
Trevino, on the other hand, dealt exclusively with claims of
ineffective assistance at trial, where the petitioners had no
“meaningful opportunity” to present the issue on direct appeal. The
rule in Coleman clearly governs this case, prohibiting McNemar from
alleging ineffective assistance of his habeas counsel to establish
cause for the procedural default of McNemar’s first ground.

23

MCNEMAR V. PLUMLEY

1:15CV237

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 26], GRANTING RESPONDENT’S MOTION TO
DISMISS [DKT. NO. 20], AND DENYING CERTIFICATE OF APPEALABILITY
b.

Miscarriage of Justice

In order to establish a “fundamental miscarriage of justice”
a petitioner must prove that “a constitutional violation has
probably

resulted

in

the

conviction

of

one

who

is

actually

innocent.” Prieto v. Zook, 791 F.3d 465, 469 (4th Cir. 2015)
(quoting Carrier, 477 U.S. at 496) (internal quotation omitted). “A
credible showing of actual innocence” can overcome a procedural
bar, thereby providing federal courts the opportunity to “see that
federal constitutional errors do not result in the incarceration of
innocent persons.” McQuiggin v. Perkins, 133 S.Ct. 1924, 1931
(2013) (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)).
Nevertheless, the gateway to success on a claim of actual
innocence is a narrow one, opening only “when a petition presents
‘evidence

of

innocence

so

strong

that

a

court

cannot

have

confidence in the outcome of the trial unless the court is also
satisfied that the trial was free of nonharmless constitutional
error.’” Id. (quoting Schlup v. Delo, 513 U.S. 298, 316 (1995)).
Such evidence must convince the Court that “it is more likely than
not

that

no

reasonable

juror

would

have

convicted

[the

petitioner].” Id. at 1933 (quoting Schlup, 513 U.S. at 329).
“[L]atter-day evidence brought forward to impeach a prosecution
witness will seldom, if ever, make a clear and convincing showing
24

MCNEMAR V. PLUMLEY

1:15CV237

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 26], GRANTING RESPONDENT’S MOTION TO
DISMISS [DKT. NO. 20], AND DENYING CERTIFICATE OF APPEALABILITY
that no reasonable juror would have believed the heart of [the
witness’s] account of petitioner’s actions.” Sawyer v. Whitley, 505
U.S. 333, 349 (1992).
Here, both in response to the motion to dismiss and also in
his objections, McNemar has asserted that he is “100% innocent” and
“leans on McQuiggin v. Perkins” (Dkt. No. 28 at 3). He appears to
argue that the alleged withholding of a victim interview report,
the alleged Brady violation that is the focus of his second ground,
involves sufficient newly-discovered evidence of his innocence to
overcome the procedural bar (Dkt. Nos. 24 at 5-6; 28 at 3).
Significantly, McNemar never mentioned such a claim in his
Petition,5 nor has he provided the “newly discovered” interview
report to the Court. Nevertheless, from McNemar’s descriptions of
the report, the Court is able to conclude that he cannot satisfy
the high evidentiary standard required to assert actual innocence.

5

Plumley appears to argue that McNemar has waived the
argument as a result, but procedural default is an affirmative
defense. Jones, 591 F.3d at 716. Thus, that McNemar did not raise
his innocence until the defense was asserted does not appear
dispositive. See Bousley v. United States, 523 U.S. 614, 623 (1998)
(“The District Court failed to address petitioner's actual
innocence, perhaps because petitioner failed to raise it initially
in his § 2255 motion. However, the Government does not contend that
petitioner waived this claim by failing to raise it below.
Accordingly, we believe it appropriate to remand this case to
permit petitioner to attempt to make a showing of actual
innocence.”).
25

MCNEMAR V. PLUMLEY

1:15CV237

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 26], GRANTING RESPONDENT’S MOTION TO
DISMISS [DKT. NO. 20], AND DENYING CERTIFICATE OF APPEALABILITY
In his second habeas proceeding, McNemar mounted two arguments
as to why the interview report would have been valuable. First, he
contended that neither the report nor the victim’s testimony
reflected certain sexual contact, which, he contended, supported
his argument that he never committed such acts:
This document details the accusations of the alleged
victim and it does not detail any reference to the
alleged masturbation as alleged in Count 1 of the
indictment [and it should be noted that the victim did
not testify to any masturbatory activity during her
testimony at trial]. This is significant because the
petitioner had maintained that the statement he gave to
police did not detail actual sexual activity between him
and O.G. and that he had not molested O.G., and the
report further raises questions as to the authenticity of
the things stated in the statement given to the police by
the petitioner.
(Dkt. No. 19-3 at 29) (internal citations omitted) (alteration in
original). Second, he asserted that discrepancies between the
report

and

the

victim’s

testimony

could

have

been

used

impeachment purposes:
(1)

At trial, O.G. testified that Petitioner asked her
if she wanted some beer, and that if she wanted
some she can have some. O.G. then stated that she
took a small drink. In the report, she stated that
the Petitioner forced her to drink beer.

(2)

O.G. testified that the alleged abuse began when
she walked into the den and Petitioner stopped her
in a nude state. He then allegedly asked her to
touch his chest hair and privates. In the report,
O.G. stated that she awoke with the Petitioner

26

for

MCNEMAR V. PLUMLEY

1:15CV237

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 26], GRANTING RESPONDENT’S MOTION TO
DISMISS [DKT. NO. 20], AND DENYING CERTIFICATE OF APPEALABILITY
[sic] penis on her and that he forced her to touch
his chest.
(3)

O.G. testified that in the midst of the abuse her
grandmother asked from upstairs if everything was
okay. Such a thing would have been one that forever
sticks in the memory of a molested child: one where
a loved one was nearby yet unable to help. This
detail is shockingly absent from the report.

(4)

In further support that O.G. concocted the sexual
allegation, she stated at trial that she slept with
the dog “Sassy” the night the incident allegedly
occur [sic]. But the testimony of Victori Holiday
(whom gave Sassy to Ms. Grunau, the grandmother)
verifies that the alleged victim’s grandmother did
not acquire Sassy until November of 2006. Even Ms.
Grunau’s testimony stated she did not have Sassy
until fall of 2006, well after any time that O.G.
testified that the abuse allegedly happen [sic].
The situation with O.G. sleeping with a dog “Sassy”
is not mentioned in the report. Had trial counsel
been made aware of the mention of a particular
dog’s name, he could have used such evidence for
impeachment purposes instead of being blindsided by
it at trial and failing to reserve the right to
recall her as a witness.

(Dkt. No. 19-4 at 79-80) (internal citations omitted).
For such impeachment evidence to support a claim of actual
innocence, it must meet an exacting standard. Sawyer, 505 U.S. at
349. Concededly, the interview report could have been helpful to
McNemar’s case, but it does not constitute “exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical
evidence.”

Schlup,

513

U.S.

at

324.

Moreover,

the

alleged

inconsistencies in the report do not make it “more likely than not
27

MCNEMAR V. PLUMLEY

1:15CV237

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 26], GRANTING RESPONDENT’S MOTION TO
DISMISS [DKT. NO. 20], AND DENYING CERTIFICATE OF APPEALABILITY
that no reasonable juror would have convicted” McNemar had the
report been available to him at trial. Id. at 327.6 Thus, from the
totality of the evidence submitted by McNemar, the Court simply
cannot conclude “that no reasonable jury would have believed the
heart of [the victim’s] account.” Sawyer, 505 U.S. at 349.7
In summary, although McNemar properly exhausted his first
ground,

he

is

barred

from

raising

it

here

because

it

was

procedurally defaulted in state court. Moreover, McNemar cannot
establish “cause and prejudice” or a “miscarriage of justice”
sufficient to overcome the resulting procedural bar. Therefore, the
Court ADOPTS Magistrate Judge Seibert’s recommendation and GRANTS
Plumley’s motion to dismiss McNemar’s first ground (Dkt. No. 20).

6

For examples of cases discussing impeachment evidence in the
context of actual innocence claims, see Munchinski v. Wilson, 694
F.3d 308, 335-36 (3d Cir. 2012) (reasoning that impeachment
evidence established actual innocence when it “clearly and
convincingly shows that the murders could not have happened as the
Commonwealth proposed at trial”); Wadlington v. United States, 428
F.3d 779, 784 (8th Cir. 2005); Stafford v. Saffle, 34 F.3d 1557,
1562 (10th Cir. 1994) (“None of the other evidence proves actual
innocence. The agreement between Verna and the prosecutors is only
impeachment evidence, rather than evidence of actual innocence.”);
Patterson v. Bartlett, 56 F. App’x 762, 763 (9th Cir. 2002)
(unpublished memorandum decision) (finding that actual innocence
claim was not established by “impeachment evidence that attacks the
credibility of the victim and her mother”); Jones v. Annuci, 124 F.
Supp. 3d 103, 123-24 (N.D.N.Y. 2015).
7

For McNemar’s own summary of the state’s case, see Dkt. No.
19-2 at 10-11.
28

MCNEMAR V. PLUMLEY

1:15CV237

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 26], GRANTING RESPONDENT’S MOTION TO
DISMISS [DKT. NO. 20], AND DENYING CERTIFICATE OF APPEALABILITY
B.

McNemar’s Second Ground
In his second ground, McNemar argues that Dyer provided

ineffective assistance as habeas counsel when he failed “to raise
the issue that the state intentionally withheld an interview report
taken from the alleged victim according to Brady v. Maryland” (Dkt.
No. 1 at 10). He asserts that, during the first omnibus hearing, it
came to light that the state’s trial counsel had never turned over
a copy of the victim’s interview report that would have provided
“extremely valuable impeachment evidence” of the alleged victim.
Id. According to McNemar, Dyer was ineffective by failing to “ask[]
the Circuit Court for a continuance in order to supplement the
argument that the State withheld the interview report.” Id. at 11.
This second ground falls squarely within the prohibition in
§

2254(i),

which

precludes

from

consideration

“[t]he

ineffectiveness or incompetence of counsel during Federal or State
collateral

post-conviction

proceedings.”

Despite

McNemar’s

objection to the contrary (Dkt. No. 28 at 2), Martinez v. Ryan does
not except grounds for relief barred by § 2254(i). 566 U.S. at 17
(“In short, while § 2254(i) precludes Martinez from relying on the
ineffectiveness of his postconviction attorney as a ‘ground for
relief,’ it does not stop Martinez from using it to establish
‘cause.’”). Therefore, the Court ADOPTS the recommendation in the
29

MCNEMAR V. PLUMLEY

1:15CV237

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 26], GRANTING RESPONDENT’S MOTION TO
DISMISS [DKT. NO. 20], AND DENYING CERTIFICATE OF APPEALABILITY
R&R (Dkt. No. 26), and GRANTS Plumley’s motion to dismiss the
second ground raised by McNemar (Dkt. No. 20).
IV. CONCLUSION
After pursuing two unsuccessful habeas petitions in state
court, McNemar presents two grounds for relief under § 2254. The
Supreme Court’s limited holdings in Martinez and Trevino, however,
do not permit McNemar to bring a claim for ineffective assistance
of appellate counsel that was procedurally barred in state court,
or to raise a challenge to the assistance of his habeas counsel
that

is

precluded

by

§

2254(i).

Therefore,

for

the

reasons

discussed, the Court
1)

ADOPTS the R&R (Dkt. No. 26);

2)

GRANTS Plumley’s motion to dismiss (Dkt. No. 20); and

3)

DENIES and DISMISSES the Petition WITH PREJUDICE (Dkt.
No. 1).

It is so ORDERED.
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing Section 2254 and
Section 2255 Cases, the district court “must issue or deny a
certificate of appealability when it enters a final order adverse
to

the

applicant”

in

such

cases.

30

If

the

court

denies

the

MCNEMAR V. PLUMLEY

1:15CV237

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 26], GRANTING RESPONDENT’S MOTION TO
DISMISS [DKT. NO. 20], AND DENYING CERTIFICATE OF APPEALABILITY
certificate, “the parties may not appeal the denial but may seek a
certificate from the court of appeals under Federal Rule of
Appellate Procedure 22.” 28 U.S.C. foll. § 2255(a).
The Court finds it inappropriate to issue a certificate of
appealability in this matter because McNemar has not made a
“substantial showing of the denial of a constitutional right.” See
28 U.S.C. § 2253(c)(2). A petitioner satisfies this standard by
demonstrating

that

reasonable

jurists

would

find

that

any

assessment of the constitutional claims by the district court is
debatable or wrong, and that any dispositive procedural ruling by
the

district

court

is

likewise

debatable.

See

Miller–El

v.

Cockrell, 537 U.S. 322, 336–38 (2003). Upon review of the record,
the Court concludes that McNemar has failed to make the requisite
showing, and DENIES a certificate of appealability.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record and the pro se petitioner, certified mail,
return receipt requested, to enter a separate judgment order, and
to remove this case from the Court’s active docket.
DATED: March 24, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

31