UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7759
KENIS RAY JOHNSON,
Petitioner - Appellant,
v.
FRANK PERRY,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever, III,
Chief District Judge. (5:13-hc-02132-D)
Submitted: April 28, 2015 Decided: May 11, 2015
Before SHEDD, FLOYD, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Kenis Ray Johnson, Appellant Pro Se. Clarence Joe DelForge,
III, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenis Ray Johnson 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. See 28 U.S.C.
§ 2253(c)(1)(A) (2012). A certificate of appealability will not
issue absent “a substantial showing of the denial of a
constitutional right.” Id. § 2253(c)(2). When a 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 also Miller-El v. Cockrell, 537 U.S. 322, 336-38
(2003). When a district court denies relief on procedural
grounds, a prisoner must demonstrate that the dispositive
procedural ruling is debatable and that the petition states a
debatable claim of the denial of a constitutional right. See
Slack, 529 U.S. at 484-85.
Appellant argues that his retained counsel rendered
ineffective assistance by failing to properly advise him during
plea negotiations. The state court rejected this argument, so
Appellant now seeks federal habeas relief. Under the
circumstance of this case, Appellant must show the state court’s
decision “resulted in a decision that was contrary to, or
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involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1) (2012).
We have independently reviewed the record and conclude that
Johnson has not made the requisite showing. The Sixth Amendment
right to counsel “extends to the plea-bargaining process.”
Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012). To succeed,
Appellant must show “that counsel’s representation fell below an
objective standard of reasonableness” and that “the outcome of
the plea process would have been different with competent
advice.” Id. (internal quotation marks omitted). Under the
circumstances of this case, Appellant must show that but for
counsel’s advice that he “would have accepted the plea and the
prosecution would not have withdrawn it in light of intervening
circumstances”; “that the court would have accepted its terms”;
and “that the conviction or sentence, or both, under the offer’s
terms would have been less severe than under the judgment and
sentence that in fact were imposed.” Id. at 1385.
In part, the state court denied relief because Appellant
could not show he would have accepted the plea. Appellant
sought to establish this fact based on his own assertion that he
would have accepted the plea. But evidence indicated Appellant
was advised he faced a substantial sentence if he rejected the
plea and Appellant had ample opportunity to review the evidence
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against him prior to rejecting the plea. These circumstances
undermine the credibility of Appellant’s assertion that he would
have accepted the plea. Considering this conflict, the state
court’s application of Lafler was not unreasonable and the
district court’s denial of relief is not debatable. See
Merzbacher v. Shearin, 706 F.3d 356, 366–67 (4th Cir. 2013)
(“[I]t is entirely clear that to demonstrate a reasonable
probability that he would have accepted a plea, a petitioner’s
testimony that he would have done so must be credible.”).
Accordingly, we deny a certificate of appealability, deny
leave to proceed in forma pauperis, and dismiss the appeal. 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 process.
DISMISSED
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