James Samples v. David Ballard

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6740

JAMES TIMOTHY SAMPLES,

Petitioner - Appellant,

v.

DAVID BALLARD, Warden, Mount Olive Correctional Facility,

Respondent - Appellee.

Appeal from the United States District Court for the Southern District of West Virginia,
at Charleston. Thomas E. Johnston, District Judge. (2:14-cv-15413)

Argued: March 23, 2017 Decided: June 23, 2017

Before TRAXLER, DIAZ, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge Floyd wrote the opinion, in which Judge Traxler
and Judge Diaz joined.

ARGUED: Wesley Paul Page, FLAHERTY SENSABAUGH BONASSO PLLC,
Charleston, West Virginia, for Appellant. Thomas M. Johnson, Jr., OFFICE OF THE
ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for
Appellee. ON BRIEF: Patrick Morrisey, Attorney General, Elbert Lin, Solicitor
General, Shannon Frederick Kiser, Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for
Appellee.
FLOYD, Circuit Judge:

This petition for relief under 28 U.S.C. § 2254 comes before this Court pursuant to

a grant of a certificate of appealability by the district court. The district court below

rejected arguments from Appellant-Petitioner James Samples based on Samples’s failure

to raise them before the magistrate judge. Acknowledging, however, that this ruling may

run contrary to our holding in United States v. George, 971 F.2d 1113 (4th Cir. 1992), the

district court granted the certificate of appealability on the narrow procedural question of

whether a habeas petitioner’s claims raised for the first time in objections to a magistrate

judge’s proposed findings and recommendations must be heard by the district judge. We

broadly answer this question in the affirmative, but in the instant case find that the district

court did not commit reversible error, and therefore affirm.

I.

This case comes before us on Appellant James Samples’s second habeas petition

filed pursuant to 28 U.S.C. § 2254, and some background information is necessary to

contextualize the petition at issue.

Samples was convicted in January 1998 for first degree murder, and sentenced to

life imprisonment without mercy in Kanawha County, West Virginia. After an

unsuccessful habeas petition in state court, Samples filed his first pro se petition under 28

U.S.C. § 2254 in the Southern District of West Virginia on May 17, 2013 (the “2013

Petition”).

2
 On January 21, 2014, Magistrate Judge Dwane L. Tinsley submitted a report of

proposed findings and recommendations (PF&R), 1 finding that Samples had not

exhausted all of his claims. See Samples v. Ballard (Samples I), No. 2:13-cv-11638,

2014 WL 1338562 (S.D.W. Va. Jan. 21, 2014). Magistrate Judge Tinsley explicitly

stated that Samples could argue pursuant to Martinez v. Ryan, 566 U.S. 1 (2012), that his

procedural default should be excused due to ineffective assistance of state habeas

counsel, and encouraged Samples to make such an argument in a new federal habeas

petition. Id. at *10 (“[I]f the petitioner wishes to pursue these claims of ineffective

assistance of counsel in the federal court, he will have the opportunity to address the

Martinez requirements in his new petition, should he choose to file one.”).

Judge Thomas E. Johnston adopted in part the PF&R on the basis of a failure to

exhaust, and dismissed the 2013 Petition as a “mixed petition” 2 without prejudice on

March 31, 2014. Samples v. Ballard (Samples II), No. 2:13-cv-11638, 2014 WL

1342312 (S.D.W. Va. Mar. 31, 2014), adopting-in-part Samples I, 2014 WL 1338562. In

doing so, Judge Johnston also stated that “Petitioner may be able to state a claim pursuant

to Martinez, but such claim must be brought pursuant to a properly filed habeas petition

in federal court. . . . [T]o the extent that Petitioner chooses to pursue this argument, he

1
We note that certain courts use the PF&R nomenclature, while others refer to this
type of opinion from a magistrate judge as a report and recommendation (R&R), or
something else entirely. Our analysis and discussion in this case is not limited to those
cases where a PF&R is filed as opposed to an R&R or some other report.
2
A “mixed petition” contains both exhausted and unexhausted claims, and may
not be adjudicated. Rhines v. Weber, 544 U.S. 269, 273–75 (2005).

3
should address the Martinez requirements in his new federal habeas petition . . . .” Id. at

*3.

Following another unsuccessful state court habeas petition, Samples filed a second

pro se § 2254 petition (the “2014 Petition”), the petition at issue in this case. On

February 6, 2015, Magistrate Judge Tinsley entered a PF&R wherein he evaluated all

claims on their merits, found each claim to be without merit, and recommended granting

the government’s motion for summary judgment. Samples v. Ballard (Samples III), No.

2:14-cv-15413, 2015 U.S. Dist. LEXIS 177412 (S.D.W. Va. Feb. 6, 2015).

Samples then filed objections to the PF&R on March 10, 2015, still pro se. See

generally J.A. 195–217. In those objections, Samples raised brand new contentions

related to the effectiveness of trial counsel, and argued that cause existed to excuse his

failure to exhaust these issues due to the ineffectiveness of his court-appointed post-

conviction counsel in state court. Samples argued that his trial counsel was deficient due

to “six acts of omission” and that his post-conviction counsel “declined to present or

explicate petitioner’s meritorious claims for relief predicated on trial counsel’s six acts of

omission.” J.A. 201–02. 3 He further requested that the district court “find [post-

3
Samples in briefing confirms that the “six acts of omission” are six specific
complaints raised in Samples’s first state habeas petition. Appellant’s Br. at 9 n.4. This
was not clear from the pro se objections filed below. These “six alleged acts of
omission” were failings in not: (1) “request[ing] a bifurcated trial;” (2) “secur[ing] a petit
jury free of all disqualifications;” (3) “seek[ing] sequestration of the jury;” (4)
“perform[ing] tests recommended by [a forensic expert] to exclude certain state exhibits;”
(5) “submit[ting] the curriculum vitae of their defense experts;” and (6) “locat[ing] or
interview[ing] Terry Felhauser” as a potential alternate perpetrator of the crime. Samples
I, 2014 WL 1338562, at *2–3.

4
conviction counsel] were ineffective under the standards of [Strickland v. Washington,

466 U.S. 668 (1984)] when they failed to present trial counsel’s failure to investigate the

facts underlying the six acts of omission . . . . [and] excuse [Samples]’s failure to present

this claim to the [Supreme Court of Appeals of West Virginia] due to [post-conviction

counsel’s] act of omission” pursuant to Martinez. J.A. 201–02. Later, Samples further

stated that he was “denied meaningful and effective assistance of post-conviction

counsel, when court-appointed counsel omitted [an issue] from the petition for post-

conviction relief and the petition for appeal.” J.A. 207.

In a thorough opinion, Judge Johnston overruled the objections, and specifically

addressed the objections related to the effectiveness of post-conviction counsel. Samples

v. Ballard (Samples IV), No. 2:14-cv-15413, 2016 WL 1271508 (S.D.W. Va. Mar. 31,

2016), adopting Samples III, 2015 U.S. Dist. LEXIS 177412. Judge Johnston noted that

even after Magistrate Judge Tinsley had explicitly referenced Martinez in his Samples I

opinion, Samples “elected not to raise either the ineffective assistance of habeas counsel

claim or the underlying errors of trial counsel in the § 2254 Petition now under review.”

Samples IV, 2016 WL 1271508 at *18. 4

4
Of note, Samples did allege ineffectiveness of his habeas counsel in the 2014
Petition with respect to the issue of certain witnesses testifying in prison garb. J.A. 20.
However, that was the only place where the allegation was made, and specifically related
to that issue. Moreover, that issue was fully adjudicated in the disposition of the 2014
Petition. See Samples IV, 2016 WL 1271508, at *10–12. The district court also noted, as
we do here, that two of the six acts complained of—namely the issue of bifurcation and
additional forensic testing—were in fact raised when represented by counsel in state
habeas proceedings as potential claims, which were later abandoned. Id. at *18 n.19. We
additionally note that another of the six acts complained of—the issue of securing a jury
(Continued)
5
 Judge Johnston concluded that Samples was “us[ing] his objections to plead new

claims that should have been raised in the habeas petition.” Id. at *19. Judge Johnston

treated the issue as a matter of waiver; however, he acknowledged that our holding from

United States v. George, 971 F.2d 1113 (4th Cir. 1992), might control. The court

expressed its belief that George does not apply in the habeas corpus context whatsoever,

but also noted that applying George likely would not mandate a different result, because

Samples was “seek[ing] to use his objections to assert an entirely novel habeas claim.”

Id. at *20. The court went on to explain that “[p]ermitting [Samples] to raise his

Martinez claim at this point in the case would show disregard for AEDPA[ 5]’s timing

requirements, defeat the purpose of the Magistrates Act,[ 6] and unfairly prejudice the

[government] in this matter.” Id. Ultimately, Judge Johnston found that it was a matter

of discretion as to whether or not he would hear the argument, and declined to adjudicate

the Martinez claim. Id.

free of disqualifications—was actually addressed on the merits in the adjudication of the
2014 Petition. See id. at *3–9 (adjudicating the issue of inadequate voir dire). Not
wanting to confuse the issues, however, we continue to refer throughout the opinion to
these as “six acts of omission” to follow the language of Samples and the district court
below.
5
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132,
110 Stat. 1214 (codified as amended in relevant part at 28 U.S.C. §§ 2244, 2254).
6
Federal Magistrates Act, Pub. L. No. 90-578, 82 Stat. 1107 (1968) (codified as
amended in relevant part at 28 U.S.C. § 636(b)).

6
 In so ruling, Judge Johnston noted that his “procedural ruling [was] debatable, at

least without further clarification of the limits of George,” and so granted a certificate of

appealability on the issue. Id. The judgment order specifically granted the certificate

“limited to the procedural issue of whether [Samples]’s claims should be heard where

they were raised for the first time in objections to the Magistrate judge’s PF&R.” J.A.

258. The court subsequently granted Samples’s request to appoint counsel, and granted

appointed counsel an extension of time to file a notice of appeal. Samples then timely

noted this appeal, and we have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(c).

II.

This case presents a series of separate but related issues. As an initial matter, we

must determine whether George applies in the context of habeas corpus cases. As

explained below, we hold today that it does. This leads to a secondary issue—how

George is applied in the habeas context. Samples and the government propose two

different interpretations; we believe that the government’s framework is the only

workable option. Having settled how George is to be applied, we must then review the

decision of the district court to ensure that it comports with this understanding. We find

that it does, and that the district court was not required to hear Samples’s new claims

under George. Finally, we review the court’s decision to ensure that it was not otherwise

an abuse of discretion to refuse to hear these claims. We discern no abuse of discretion

here.

7
 We consider de novo the questions of whether George applies, how it applies, and

whether it was appropriately applied in this case. United States v. Ocasio, 750 F.3d 399,

408 (4th Cir. 2014). Our additional review of the district court’s disposition of the case is

for abuse of discretion. Cf. Doe v. Chao, 306 F.3d 170, 183 (4th Cir. 2002) (citing

United States v. Howell, 231 F.3d 615, 622–23 (9th Cir. 2000)) (applying an abuse of

discretion standard when the district judge rejected supplemental evidence after a

magistrate judge issued a report and recommendation).

A.

A review of George is a necessary first step in our analysis. In George, a West

Virginia county magistrate had issued two search warrants—one for a truck and one for a

house—in connection with an investigation of a shooting. 971 F.2d at 1116. The

defendant moved to suppress certain evidence obtained in the execution of those

warrants, specifically, the truck’s tires and hacksaw blades found in the truck. Id. The

issue of suppression was referred to a federal magistrate judge to issue proposed findings

and recommendations. Id. The federal magistrate judge found both search warrants

invalid for lack of probable cause, and found the good faith exception to the exclusionary

rule inapplicable. Id.

The government filed objections to the PF&R, challenging the findings of

probable cause and the inapplicability of the good faith exception. Id. The government

“also raised for the first time two additional arguments in opposition to the suppression

motions,” arguing that the defendant had no reasonable expectation of privacy in his

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truck tires, and that the evidence was admissible under the inevitable discovery exception

to the exclusionary rule. Id. at 1116–17. The district court adopted the PF&R in its

entirety and “refus[ed] to consider the government’s privacy and inevitable discovery

arguments because the government had not raised these arguments before the

magistrate.” Id. at 1117.

On appeal, we considered whether the district court’s procedural conclusion was

sound. In making this determination, we relied on the text of the Federal Magistrates

Act, 28 U.S.C. § 636. The Federal Magistrates Act requires that where a district court

judge has referred a pretrial suppression motion to a magistrate judge, the magistrate

judge must submit proposed findings of fact and recommendations to the district court.

28 U.S.C. § 636(b)(1). The district judge then “shall make a de novo determination of

those portions of the report or specified proposed findings or recommendation to which

objection is made.” Id. § 636(b)(1)(C). Once the district judge has concluded de novo

review, the district judge “may accept, reject, or modify, in whole or in part, the findings

or recommendations made by the magistrate judge. The judge may also receive further

evidence or recommit the matter to the magistrate judge with instructions.” Id. After

considering the Federal Magistrates Act, we held:

We believe that as part of its obligation to determine de novo any issue to
which proper objection is made, a district court is required to consider all
arguments directed to that issue, regardless of whether they were raised
before the magistrate. By definition, de novo review entails consideration
of an issue as if it had not been decided previously. It follows, therefore,
that the party entitled to de novo review must be permitted to raise before
the court any argument as to that issue that it could have raised before the
magistrate. The district court cannot artificially limit the scope of its
review by resort to ordinary prudential rules, such as waiver, provided that

9
 proper objection to the magistrate’s proposed finding or conclusion has
been made and the appellant’s right to de novo review by the district court
thereby established. Not only is this so as a matter of statutory
construction; any other conclusion would render the district court’s ultimate
decision at least vulnerable to constitutional challenge.

George, 971 F.2d at 1118 (footnotes omitted) (emphases added) (citing United States v.

Raddatz, 447 U.S. 667, 683 (1980); United States v. Shami, 754 F.2d 670, 672 (6th Cir.

1985); United States v. Elsoffer, 644 F.2d 357, 359 (5th Cir. 1981)).

In essence, George envisions a hierarchical scheme, wherein a legal case is

divided into issues, and issues are further subdivided into arguments. In George, the

legal case was the entire criminal case, the issue was suppression of evidence from the

truck, and the arguments made against suppression by the government were (1) existence

of a valid warrant; (2) good faith reliance on a valid warrant; (3) no reasonable

expectation of privacy; and (4) inevitable discovery. The government argued only the

first two positions to the magistrate judge, and we ruled in George that the district judge

could not deem the latter two waived and must entertain them.

B.

We now turn to the question of whether George can apply in the habeas context.

We conclude that it does.

As described above, the decision in George turned on the interpretation of the

Federal Magistrates Act—specifically 28 U.S.C. § 636(b)(1) and the requirement that a

district judge “make a de novo determination” to sections of a PF&R to which a party

objects. This paragraph not only permits a magistrate judge to conduct hearings and

submit a PF&R to the district court with respect to suppression of evidence, 28 U.S.C.

10
§ 636(b)(1)(A)–(B), but also authorizes a hearing before a magistrate judge resulting in a

PF&R with respect to “applications for posttrial relief made by individuals convicted of

criminal offenses,” id. § 636(b)(1)(B). Then, the PF&R submitted with respect to either

pretrial suppression of evidence or post-trial relief by a prisoner is subject to a de novo

determination by the district judge. Id. § 636(b)(1)(C). The language of the statute is

also reflected in the language of Rule 8(b) of the Rules Governing Section 2254 Cases in

the United States District Courts (“Habeas Rules”):

(b) Reference to a Magistrate Judge. A judge may, under 28 U.S.C.
§ 636(b), refer the petition to a magistrate judge to conduct hearings and to
file proposed findings of fact and recommendations for disposition. . . . The
judge must determine de novo any proposed finding or recommendation to
which objection is made. The judge may accept, reject, or modify any
proposed finding or recommendation.

Habeas R. 8(b).

We have no cause to interpret the “de novo determination” language of 28 U.S.C.

§ 636(b)(1) differently as it relates to pretrial suppression versus habeas petitions, nor do

we have cause to interpret the virtually identical language in the Habeas Rules any

differently. As precedent of this Court, our holding in George must apply “[a]bsent an en

banc overruling or a superseding contrary decision of the Supreme Court.” United States

v. Prince-Oyibo, 320 F.3d 494, 498 (4th Cir. 2003) (citing Scotts Co. v. United Indus.

Corp., 315 F.3d 264, 271 n.2 (4th Cir. 2002)). Because neither of these events has

occurred, we find that George does apply to habeas cases. 7

7
We also note that in suggesting George would not apply to habeas cases, the
district court below relied on precedent from our sister circuits. This was incorrect. Our
(Continued)
11
 C.

Having determined that George does apply to habeas cases, we must now resolve

exactly how it is to be applied. In the case at hand, the district court declined to consider

Samples’s objections related to the “six acts of omission” for which he sought to have his

procedural default excused under Martinez, finding that they constituted a “novel issue.”

See Samples IV, 2016 WL 1271508, at *18. Samples urges us to find this in error under

George. He submits that his entire § 2254 petition is one “issue”—i.e., “that he is in

custody in violation of the Constitution or laws or treaties of the United States,” 28

U.S.C. § 2254—that each alleged ground for relief is an “argument” to demonstrate why

his claim is correct, and thus his objections are merely “arguments” that the district court

was required to consider. The government rejects this, arguing that this is an

inappropriate reliance on common usage and nomenclature that ignores actual habeas

corpus jurisprudence with a “semantic sleight of hand.” We agree with the government.

Applying the George framework to a habeas petition, we find the following three

levels: (1) the legal case is the habeas petition; (2) the issues or claims are the asserted

approach in George is a minority position, and one that has been criticized and rejected
by our sister circuits. See Williams v. McNeil, 557 F.3d 1287, 1291–92 (11th Cir. 2009)
(collecting cases from the First, Fifth, Ninth, and Tenth Circuits that reject our approach
in George and ultimately aligning with those other courts). The other circuits generally
believe that our requirement that “de novo” must include every single argument goes too
far, and that a district judge may consider new arguments, but by no means is required to
do so in order for the review to count as de novo. See, e.g., Freeman v. Cty. of Bexar,
142 F.3d 848, 852 (5th Cir. 1998). Given that our approach is distinct from that of other
circuits, the out-of-circuit case law on which the district court relied, and on which the
government relied in arguing this case, is both unpersuasive and unhelpful on this issue.

12
grounds for relief; and (3) the arguments are whatever position is taken in support of or

against each asserted ground for relief. The contrary position urged by Samples—that the

issue is illegal custody and the grounds for relief are merely arguments to that point—is

belied by habeas corpus jurisprudence, including statutes and case law.

First, the statutes governing habeas petitions themselves refer to each basis for

which the petitioner’s custody may be illegal as a separate “claim.” See, e.g., 28 U.S.C.

§ 2254(d) (“An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect to any claim

that was adjudicated on the merits in State court proceedings unless the adjudication of

the claim [meets certain conditions].” (emphases added)); id. § 2244(b)(4) (“A district

court shall dismiss any claim presented in a second or successive application that the

court of appeals has authorized to be filed unless the applicant shows that the claim

satisfies the requirements of this section.” (emphasis added)); id. § 2244(d)(1)(D)

(providing that one of the ways of measuring the start of the limitations period for filing a

petition pursuant to § 2254 is “the date on which the factual predicate of the claim or

claims presented could have been discovered through the exercise of due diligence”

(emphasis added)).

Second, Supreme Court case law indicates that different grounds for relief are

treated as different claims. In a pre-AEDPA case about exhaustion under § 2254, the

Supreme Court held that “[b]ecause a rule requiring exhaustion of all claims furthers the

purposes underlying the habeas statute, we hold that a district court must dismiss such

‘mixed petitions,’ leaving the prisoner with the choice of returning to state court to

13
exhaust his claims or of amending or resubmitting the habeas petition to present only

exhausted claims to the district court.” Rose v. Lundy, 455 U.S. 509, 510 (1982)

(emphases added). 8 More to the point, Martinez itself makes this distinction. See

Martinez, 566 U.S. at 7, 17 (referring to the ineffective assistance of trial counsel claim at

issue as one “ground for relief” in his petition and referring to multiple claims of

ineffective assistance of trial counsel). From these cases, we see that the Supreme Court

considers each ground for relief an independent claim.

Translating this to the George framework, we do not believe that an “issue” as

referred to in George can be defined at the high level of generality Samples urges us to

apply here. Rather, an “issue” in the habeas context is a ground for relief, and

“arguments” are the legal positions related to the ground for relief. Accord Cooper v.

Ward, 149 F.3d 1167, 1998 WL 252500, at *1 (4th Cir. 1998) (per curiam) (unreported

table decision) (finding that the district court “properly declined to address” an

“ineffective assistance of counsel claim raised for the first time in the objections to the

magistrate judge’s recommendations” (citing George, 971 F.2d at 1117–18)); White v.

Keller, No. 10-cv-841, 2013 WL 791008, at *4 (M.D.N.C. Mar. 4, 2013) (“Of course, the

court is required to consider all arguments directed to an issue addressed in an objection,

8
Throughout the opinion in Rose, the Court at length refers to each ground argued
in support of granting relief under § 2254 as an individual “claim” that must be
independently exhausted. See generally Rose, 455 U.S. at 510–522 (majority opinion and
plurality opinion as to one part). This is not an aberration of the main opinion; the other
opinions in Rose use the same terminology as well. See generally id. at 522–32
(Blackmun, J., concurring); id. at 532–38 (Brennan, J., concurring in part and dissenting
in part); id. at 538–550 (Stevens, J., dissenting).

14
regardless of whether they were raised before the magistrate judge. In this case,

however, Petitioner seeks to assert a new claim, not to make an argument with respect to

an existing claim.” (citing George, 971 F.2d at 1118)). 9 Agreeing with Samples would

require us to find that a habeas petitioner could merely state that he is in illegal custody

and then make all arguments later. This would result in an end run around AEDPA, and

is not what our case law intends.

D.

Having found that George can meaningfully apply in the habeas context, we now

review the district court’s analysis of Samples’s objections. Although the district court

appeared to indicate that it believed George did not apply, the court’s actual analysis of

Samples’s objections comports with the understanding of George we have explained

above. We therefore find no error in how the district court disposed of the objections.

In his pro se objections to the PF&R, Samples appears to do two things: (1) make

a freestanding claim of ineffective assistance of state habeas counsel; and (2) argue that

the “six acts of omission” by his trial counsel—which all agree are not actually included

in the 2014 Petition anywhere—should be considered by the district court as grounds for

9
We note that in at least one unpublished opinion, we appear to have taken a
different tack in applying George to prisoner litigation. See St. John v. Moore, 135 F.3d
770, 1998 WL 71516 (4th Cir. 1998) (per curiam) (unreported table decision). In St.
John, a prisoner litigation case arising under 42 U.S.C. § 1983, we found that “[b]ecause
it is bound to conduct a de novo review of the magistrate judge’s report, the district court
must consider claims raised before its decision even if those claims were not raised
before the magistrate judge.” 1998 WL 71516, at *1 (emphases added). However, as an
unpublished case, St. John does not bind us.

15
relief, and that cause exists to excuse any failure to exhaust those issues based on the

failure of state habeas counsel. Both of these are new grounds for relief, and under the

George framework outlined above, that makes them new “issues” and not new

“arguments” related to issues contained within the 2014 Petition.

Although Samples did make claims regarding other instances of ineffective

assistance of trial counsel in his petition, he did not claim ineffective assistance of

counsel based on the “six acts of omission.” Rather, he claimed ineffective assistance of

counsel based on an incomplete voir dire, permitting the jury to be informed that Samples

was a convicted felon at the time of the murder, failure to propose certain limiting

instructions, and failure to ensure that defense witnesses would not appear before the jury

in prison garb. J.A. 13. Samples’s express reliance on these four claims of ineffective

assistance of counsel are to the exclusion of other claims of ineffective assistance of

counsel. See Mayle v. Felix, 545 U.S. 644, 661 (2005) (explaining that different claims

must be pleaded discretely); see also Habeas R. 2(c) (“The petition must: (1) specify all

the grounds for relief available to the petitioner; (2) state the facts supporting each

ground . . . .” (emphasis added)); Habeas R. 4 advisory committee note (“‘[N]otice’

pleading is not sufficient, for the petition is expected to state facts that point to a real

possibility of constitutional error.” (internal quotation marks and citation omitted)); cf.

Elmore v. Ozmint, 661 F.3d 783, 789, 847 (4th Cir. 2011) (dividing ineffective assistance

of counsel claims raised in a § 2254 petition into discrete claims).

16
 Therefore, under George, there was no obligation for the district court to hear

either of the new claims made by Samples in his objections to the PF&R. Thus, Judge

Johnston did not err in finding that he was not required to hear the claims.

E.

Finally, the parties have briefed whether it was otherwise an abuse of discretion

for the district court to decline to hear the claims made by Samples in his objections to

the PF&R, even though the district court was not required to hear these claims under

George. We find no abuse of discretion.

Turning to the first new claim—a freestanding claim of ineffective assistance of

state habeas counsel—such a ground is not a permissible avenue of relief in a federal

habeas petition. 28 U.S.C. § 2254(i) (“The ineffectiveness or incompetence of counsel

during Federal or State collateral post-conviction proceedings shall not be a ground for

relief in a proceeding arising under section 2254.” (emphasis added)). Further, Martinez

did not create such a freestanding claim, and indeed recognized that “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’ [for failure

to exhaust].’” 566 U.S. at 17 (citing Holland v. Florida, 560 U.S. 631, 650–51 (2010)). 10

10
Samples acknowledges this in his brief before this Court, see Appellant’s Br. at
10 n.5, but we clarify this out of an abundance of caution and due to the language used by
the district court below.

17
Therefore, the district court did not abuse its discretion in not entertaining a claim that is

statutorily barred.

With respect to the second new claim—the six acts of omission of his trial

counsel—the district court properly exercised its discretion in declining to hear this

claim. Samples was on notice from both the opinions in Samples I and Samples II

relating to the 2013 Petition that if he wanted to raise claims that had been procedurally

defaulted in a subsequent petition, he needed to allege the necessary factual

circumstances to demonstrate cause to excuse default. Samples has offered no

justification for why he did not follow the directions of the courts in Samples I and

Samples II, and offers no argument as to why Judge Johnston should have permitted

Samples to effectively amend his habeas petition in this manner. We can think of none

either.

III.

Accordingly, for the reasons stated above, the judgment of the district court is

AFFIRMED.

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