UNPUBLISHED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Affirmed by unpublished per curiam opinion.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.
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Unpublished opinions are not binding precedent in this circuit.
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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 28 U.S.C. § 2254 (2006) petition. 

We previously granted a certificate of appealability on the 

issues of whether, in light of Martinez v. Ryan, 132 S. Ct. 1309 

(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, 501 U.S. 722, 

752-53 (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, 132 S. Ct. at 1317. 
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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 . . . .” Id. at 

1320. 

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, 675 F.3d 1082, 1087 (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 
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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