UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7331
ROBERT STEVEN JOYCE,
Petitioner - Appellant,
v.
WARDEN RANDALL MATHENA,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Norman K. Moon, Senior
District Judge. (7:14-cv-00348-NKM-RSB)
Submitted: January 19, 2016 Decided: February 25, 2016
Before KING, DIAZ, and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Robert Steven Joyce, Appellant Pro Se. Craig Stallard,
Assistant Attorney General, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Steven Joyce 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). A certificate of appealability will not
issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 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 that the district court’s assessment of the constitutional
claims is 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 484-85.
Joyce’s convictions arose from an altercation with Jesse
Adams at the apartment of Martha Stultz; Adams was seriously
injured during the altercation. At a bench trial, Joyce
testified that Adams had assaulted him and that he was acting in
self-defense, while Adams and Stultz testified that Joyce
attacked Adams without provocation. The trial court convicted
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Joyce and sentenced him to 27 years’ imprisonment, with half of
the sentence suspended.
Joyce filed a state habeas petition arguing that counsel
was ineffective for failing to perfect his appeal and for
failing to cross-examine Stultz and Adams regarding their
alleged drug use on the night of the offense. The state court
granted the petition with respect to counsel’s failure to
perfect Joyce’s appeal, denied it on the merits with respect to
counsel’s cross-examination of Stultz and Adams, and granted
Joyce a delayed appeal. The Virginia Court of Appeals denied
Joyce’s direct appeal, and the Supreme Court of Virginia denied
Joyce’s petition for certiorari and petition for rehearing.
Joyce later filed a second state habeas petition asserting
several claims, including that trial and appellate counsel were
ineffective. The state court found that Joyce’s ineffective
assistance of appellate counsel claims were meritless, and that
his remaining claims were procedurally defaulted because he did
not assert them in his first habeas petition. See Va. Code Ann.
§ 8.01-654(B)(2) (2015). The Supreme Court of Virginia
dismissed Joyce’s petition for appeal and petition for
rehearing.
Joyce’s § 2254 petition asserted five claims that trial
counsel was ineffective. The district court dismissed this
petition, finding that the state court’s holding that Joyce’s
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claims were procedurally defaulted constituted an adequate and
independent state ground for dismissing these claims and that
Joyce had not shown sufficient prejudice to overcome the
default.
“Federal courts will not review a question of federal law
decided by a state court if the state court’s decision rests on
an independent and adequate state law ground.” Prieto v. Zook,
791 F.3d 465, 468 (4th Cir.) (internal quotation marks omitted),
cert. denied, 136 S. Ct. 28 (2015). “[W]e have held on numerous
occasions that the procedural default rule set forth in § 8.01-
654(B)(2) constitutes an adequate and independent state-law
ground for decision.” Mackall v. Angelone, 131 F.3d 442, 446
(4th Cir. 1997) (en banc). “A habeas petitioner can rescue his
constitutional claim from procedural default if he establishes
either ‘cause and prejudice’ for the default or that the default
would yield a ‘fundamental miscarriage of justice.’” Prieto,
791 F.3d at 469.
Joyce argues that, under Martinez v. Ryan, 132 S. Ct. 1309
(2012), the absence of counsel in his PCR proceedings provided
cause for his procedural default.
Martinez held that a federal habeas petitioner who
seeks to raise an otherwise procedurally defaulted
claim of ineffective-assistance-of-trial-counsel
before the federal court may do so only if: (1) the
ineffective-assistance-of-trial-counsel claim is a
substantial one; (2) the cause for default consists of
there being no counsel or only ineffective counsel
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during the state collateral review proceeding; (3) the
state collateral review proceeding was the initial
review proceeding in respect to the ineffective-
assistance-of-trial-counsel claim; and (4) state law
requires that an ineffective-assistance-of-trial-
counsel claim be raised in an initial-review
collateral proceeding.
Fowler v. Joyner, 753 F.3d 446, 461 (4th Cir. 2014) (brackets
and internal quotation marks omitted), cert. denied, 135 S. Ct.
1530 (2015); see also Prieto, 791 F.3d at 469
(“[C]onstitutionally ineffective assistance of counsel may
provide ‘cause’ for a procedural default.”). The district court
found that Joyce had likely shown cause for his default but had
not shown prejudice because his ineffective assistance claims
were meritless in light of the overwhelming evidence against
him. Although the district court did not expressly apply the
Martinez framework, its finding that Joyce’s claims were plainly
meritless amounts to a finding that they were not substantial.
On appeal, Joyce argues that trial counsel failed to
adequately impeach Stultz and Adams “by pointing out their
perjury as depicted in [the] Statement of Facts.” Joyce appears
to be renewing the argument he raised below-that these witnesses
gave testimony at a pretrial hearing that differed from their
trial testimony. However, Joyce does not indicate how the
witnesses’ trial testimony differed from their pretrial
testimony or give any indication that such differences were
substantial enough to effectively impeach them. Indeed, the
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district court noted that there were minor inconsistencies in
the witnesses’ testimony at trial, but the trial judge
apparently found the witnesses credible despite these
inconsistencies. Accordingly, we conclude that the district
court’s finding that this claim was insubstantial is not
reasonably debatable.
Joyce also argues that trial counsel failed to introduce
evidence that Joyce was assaulted. The only such evidence that
Joyce cites is his mugshot. The district court found that this
mugshot, which only shows “a small blemish in the middle of
[Joyce’s] forehead,” was not probative enough for its omission
to substantiate a claim of ineffective assistance. Having
reviewed this evidence, we conclude that the district court’s
finding is not reasonably debatable. *
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
*
Joyce also argues that the trial court denied him his
right to counsel of his choice. This claim was not raised
below, and we will not consider it for the first time on appeal.
See Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993).
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