UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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