UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 12-7270

JOEY H. JOHNSON,

Petitioner – Appellant,

v.

WARDEN OF BROAD RIVER CORRECTIONAL INSTITUTION,

Respondent – Appellee,

and

STATE OF SOUTH CAROLINA; WILLIAM R. BYARS, SCDC Director,

Respondents.

Appeal from the United States District Court for the District of South Carolina, at Aiken. J. Michelle Childs, District Judge. (1:11-cv-02754-JMC)

Submitted: February 28, 2013 Decided: March 8, 2013

Before SHEDD, AGEE, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Joey H. Johnson, Appellant Pro Se. William Edgar Salter, III, Assistant Attorney General, Donald John Zelenka, Senior Assistant Attorney General, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.

2 PER CURIAM:

Joey H. Johnson appeals from the district court’s

order adopting the report and recommendation of the magistrate

judge and denying Johnson’s

(2006) petition.

We previously granted a certificate of appealability on the

issues of whether, in light of Martinez v. Ryan,

(2012), (1) the trial court erred in failing to place the case

in abeyance to permit Johnson to exhaust his claim that he

received ineffective assistance of counsel when his trial

counsel failed to file a requested notice of appeal or

(2) Johnson showed sufficient cause for his failure to exhaust

this claim. After further briefing, we affirm.

The question before us is whether Johnson can show

cause for his failure to exhaust based upon the ineffective

assistance of counsel during his postconviction proceeding. The

Martinez court characterized its holding as a “limited

qualification” to the rule in Coleman v. Thompson,

(1991), that an attorney’s negligence in a postconviction

proceeding does not establish cause for procedural default. The

Court noted the reality that when an “initial-review collateral

proceeding is the first designated proceeding for a prisoner to

raise a claim of ineffective assistance of trial counsel, the

collateral proceeding is in many ways the equivalent of a

prisoner’s direct appeal . . . .” Martinez,

.

3 Accordingly, while ineffective assistance in initial-review

collateral proceedings might constitute cause for failure to

exhaust certain claims, the Martinez rule did not “concern

attorney errors in other kinds of proceedings including appeals

from initial-review collateral proceedings . . . .”

.

Thus, even assuming that Johnson could raise his

instant ineffective assistance claim for the first time only in

his state postconviction proceeding, he was represented by

counsel at his postconviction hearing, and his claim was

properly exhausted at that hearing. Instead, Johnson is

asserting that his attorney improperly failed to preserve his

ineffective assistance claim on appeal from the denial of his

postconviction petition. However, Martinez assures that Johnson

got a day in court at his original postconviction hearing;

“deprivation of a second day [i.e. an appeal] does not

constitute cause.” Arnold v. Dormire,

(8th

Cir. 2012).

Accordingly, because Johnson alleges only ineffective

assistance of appellate postconviction counsel, his allegations

do not constitute cause for his failure to exhaust under the

limited exception in Martinez. Instead, his claims fall under

the general Coleman rule that ineffective assistance of

postconviction counsel cannot constitute cause for procedural

4 default. As such, the district court correctly declined to stay

the case pending Johnson’s attempt to exhaust in a second

postconviction petition.

We thus affirm the district court’s judgment. We deny

Johnson’s motion for appointment of counsel. 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.

AFFIRMED

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