                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 10-6879


JESSE DUNAWAY,

                 Petitioner - Appellant,

          v.

DIRECTOR OF THE VIRGINIA DEPARTMENT OF CORRECTIONS,

                 Respondent - Appellee.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.     Jackson L. Kiser, Senior
District Judge. (7:10-cv-00120-jlk-mfu)


Submitted:   February 7, 2011              Decided:   March 4, 2011


Before DUNCAN, DAVIS, and WYNN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Jesse Dunaway, Appellant Pro Se. Eugene Paul Murphy, OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

        Jesse     Dunaway      seeks      a       certificate         of     appealability

authorizing him to challenge the district court’s order denying

relief on his 28 U.S.C. § 2254 petition.                              In that petition,

Dunaway       asserted    that     his    Virginia        conviction        for     being    an

organizer of a continuing criminal enterprise was obtained in

violation of his federal constitutional rights because (1) the

jury    did     not   unanimously        agree     to    all    the    elements       of    his

continuing criminal enterprise offense, (2) the jury received

defective instructions before deliberating, (3) the state courts

unconstitutionally interpreted the controlling Virginia statute,

and (4) his trial counsel provided ineffective assistance.

        The   district     court    concluded        that      Dunaway’s      first      three

claims were procedurally barred.                  When the district court denies

relief on procedural grounds, a petitioner seeking a certificate

of appealability must show, “at least, that jurists of reason

would    find    it    debatable     whether       the    petition         states    a   valid

claim of the denial of a constitutional right and that jurists

of reason would find it debatable whether the district court was

correct in its procedural ruling.”                      Slack v. McDaniel, 529 U.S.

473 (2000)(emphasis added).               We do not believe that Dunaway has

shown    any    room     for   debate     regarding        the   correctness          of    the

district court’s procedural ruling.                      “If a state court clearly



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and expressly bases its dismissal of a habeas petitioner’s claim

on a state procedural rule, and that procedural rule provides an

independent and adequate ground for the dismissal, the habeas

petitioner has procedurally defaulted his federal habeas claim.”

Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998).                      Here, the

state court expressly dismissed Dunaway’s first three claims on

the grounds that they were procedurally barred under Slayton v.

Parrigan, 205 S.E.2d 680 (Va. 1974) (requiring a defendant to

present   federal     constitutional           claims    during    the   trial     and

appellate    phases      or   risk   waiving       those   claims    during      post-

conviction      proceedings).        This       court    has   stated    that    “the

procedural   default      rule    set   forth      in    Slayton    constitutes     an

adequate and independent state law ground for decision.”                        Mu’min

v. Pruett, 125 F.3d 192, 196 (4th Cir. 1997).                        Consequently,

“absent   cause    and    prejudice     or     a   miscarriage      of   justice    to

excuse the procedural default,” a federal court cannot review

Dunaway’s first three claims.           Wright v. Angelone, 151 F.3d 151,

160 (4th Cir. 1998).

     Dunaway asserts that his fourth claim, alleging ineffective

assistance of counsel, constitutes the “cause” of his procedural

default   and     justifies      federal       relief.      The    district     court

disagreed.      The district court ruled on the merits of Dunaway’s

ineffective assistance of counsel claim, so we must consider



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whether   “reasonable         jurists      would     find   the       district      court’s

assessment of the constitutional claim[] debatable or wrong.”

Slack, 529 U.S. at 484. Dunaway alleges that the jury did not

identify three or more specific violations of drug laws which

would establish the continuing series of violations necessary to

sustain a conviction for being the organizer of a continuing

criminal enterprise in violation of Va. Code Ann. § 18.2-248(H2)

(2009).     He claims that his trial counsel provided ineffective

assistance by failing to raise this issue during the trial and

during    post-trial         proceedings.            To     establish         ineffective

assistance      of        counsel,     petitioner         must        demonstrate         that

counsel’s representation “fell below an objective standard of

reasonableness,”          Strickland    v.       Washington,      466    U.S.      668,    688

(1984),   and     that      “the     deficient      performance         prejudiced        the

defense,” id. at 687.           The Virginia Supreme Court concluded that

the jury instructions issued in Dunaway’s case were proper and

that   Dunaway’s      trial     counsel      had    no    valid       basis   to    object.

Petitioner fails to show that this conclusion “was contrary to,

or involved an unreasonable application of, clearly established

Federal     law,”     28     U.S.C.    §     2254(d)(1),         or    constituted        “an

unreasonable determination of the facts in light of the evidence

presented    in     the    state     court    proceeding,”        id.    §    2254(d)(2).

Consequently,        we    decline    to     hold    that   the       district      court’s



                                             4
adjudication of Dunaway’s ineffective assistance claim could be

reasonably labeled wrong or debatable.

       Because his ineffective assistance claim fails, Dunaway has

also failed to show cause and prejudice excusing the procedural

default of his first three claims.              In short, because Dunaway

fails   to    make   “a   substantial       showing    of    the     denial   of   a

constitutional right,” 28 U.S.C. § 2253(c), he has failed to

make    the   requisite    showing    to     warrant    the        issuance   of   a

certificate    of    appealability.     We   dispense       with    oral    argument

because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the

decisional process.

                                                                           DISMISSED




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