                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-6252


DONALD HERRINGTON,

                    Petitioner - Appellant,

             v.

HAROLD CLARKE, Director of the Department of Corrections,

                    Respondent - Appellee.



Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Anthony J. Trenga, District Judge. (1:16-cv-00412-AJT-MSN)


Submitted: August 1, 2017                                         Decided: August 17, 2017


Before KING and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge.


Dismissed in part, vacated in part, and remanded by unpublished per curiam opinion.


Donald Herrington, Appellant Pro Se. Robert H. Anderson, III, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Donald Herrington 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.      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) (2012). When the 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 Miller-El v. Cockrell, 537 U.S. 322,

336-38 (2003). When the district court denies relief on procedural grounds, the prisoner

must demonstrate both that the dispositive procedural ruling is debatable, and that the

petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at

484-85.

       Herrington alleged in claim (5) of his § 2254 petition that his waiver of the right to

counsel before trial was not knowing, voluntary, and intelligent. The district court held

that this claim was procedurally defaulted based on the Virginia Supreme Court’s refusal

to consider the claim under the procedural rule announced in Slayton v. Parrigan, 205

S.E.2d 680, 682 (Va. 1974) (holding that state habeas petitioner may not raise for first

time in habeas petition nonjurisdictional claims that could have been presented at trial or

on direct appeal). On appeal, Herrington argues that Slayton’s rule is not an adequate

procedural rule as applied to claim (5), and therefore, the claim is not procedurally

defaulted.

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       A federal habeas claim is procedurally defaulted when a state court declines to

consider the claim’s merits on the basis of an adequate and independent state procedural

rule. Prieto v. Zook, 791 F.3d 465, 468 (4th Cir. 2015). “A state procedural rule is

adequate if it is consistently or regularly applied” by state courts, Reid v. True, 349 F.3d

788, 804 (4th Cir. 2003), and a rule is independent “if it does not depend on a federal

constitutional ruling,” Fisher v. Angelone, 163 F.3d 835, 844 (4th Cir. 1998) (alterations

and internal quotation marks omitted). In the interests of comity and federalism, federal

courts will not review procedurally defaulted claims unless the petitioner demonstrates

either cause and prejudice to excuse the default or that a fundamental miscarriage of

justice would result from the failure to entertain the claim. Prieto, 791 F.3d at 468-69.

       We have observed that “[a] federal habeas court does not have license to question

a state court’s finding of procedural default or to question whether the state court

properly applied its own law.” Sharpe v. Bell, 593 F.3d 372, 377 (4th Cir. 2010) (internal

quotation marks omitted). However, “[t]he assessment of whether a particular state

procedure is independent and adequate, so as to bar consideration of the merits of a

federal constitutional claim, is a question of federal, not state, law.” Brown v. Lee, 319

F.3d 162, 169 (4th Cir. 2003) (internal quotation marks omitted); see also Cone v. Bell,

556 U.S. 449, 465 (2009) (“The adequacy of state procedural bars to the assertion of

federal questions is not within the State’s prerogative finally to decide; rather, adequacy

is itself a federal question.” (alterations, ellipsis, and internal quotation marks omitted)).

       Although we have “previously determined that Slayton is an adequate state

procedural rule,” we must consider whether Slayton is “adequate as applied” to claim (5).

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Reid, 349 F.3d at 805. The Virginia Supreme Court held that review of claim (5) was

barred by Slayton because the claim raised a nonjurisdictional issue that could have been

presented at trial and on direct appeal but was not. However, Herrington’s waiver of

counsel claim was in fact jurisdictional. As the Supreme Court has recognized, “[i]f the

accused . . . is not represented by counsel and has not competently and intelligently

waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a

valid conviction and sentence depriving him of his life or his liberty.” Johnson v. Zerbst,

304 U.S. 458, 468 (1938); see also Lackawanna Cty. Dist. Attorney v. Coss, 532 U.S.

394, 404 (2001); Superintendent of Powhatan Corr. Ctr. v. Barnes, 273 S.E.2d 558, 561

(Va. 1981). Because there is no evidence that Virginia courts regularly apply the Slayton

rule to similar jurisdictional claims, we conclude that the adequacy of Slayton as applied

to claim (5) is debatable. Consequently, the district court’s determination that claim (5)

is procedurally defaulted is likewise debatable.

       We cannot adequately address the potential merit of claim (5) because the record

before us does not include the state court transcripts pertinent to Herrington’s waiver of

the right to counsel. Accordingly, we grant a certificate of appealability on this claim,

vacate the district court’s dismissal of the claim, and remand for further consideration by

the district court on the merits after the court obtains any necessary state court transcripts.

       Herrington also asserted in his state habeas petition and § 2254 petition that his

counsel on direct appeal was ineffective for failing to raise 14 of the claims contained in

his state habeas petition. The Virginia Supreme Court rejected this argument, reasoning

that counsel retains discretion to select the issues to pursue on appeal. Although “it is

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difficult to demonstrate that counsel was incompetent” in his choice to present one

appellate issue rather than another, a defendant may prove that his counsel’s performance

was deficient by showing that “a reasonably competent attorney would have found one

nonfrivolous issue warranting a merits brief.” Smith v. Robbins, 528 U.S. 259, 288

(2000); see also Davila v. Davis, 137 S. Ct. 2058, 2067 (2017) (“Declining to raise a

claim on appeal . . . is not deficient performance unless that claim was plainly stronger

than those actually presented to the appellate court.”); Evitts v. Lucey, 469 U.S. 387, 397

(1985) (recognizing right to effective assistance of counsel on appeal). Here, the Virginia

Supreme Court did not address the potential merit of any claim that Herrington argued

should have been raised on appeal, perhaps because the court mistakenly concluded that

Herrington failed to identify any such claims.

       Applying 28 U.S.C. § 2254(d)’s deferential standard, the district court agreed with

the Virginia Supreme Court. However, the district court did not address the potential

merit of the claims Herrington asserted were nonfrivolous and warranted a merits brief on

direct appeal.   Rather, the district court’s analysis set forth the applicable clearly

established law and summarily concluded on the merits that Herrington had not made the

requisite showing under Strickland v. Washington, 466 U.S. 668 (1984), and § 2254(d).

We conclude that the district court’s limited discussion and the current record are

insufficient for this court to properly review the merits of Herrington’s ineffective

assistance of appellate counsel claim. Like the district court, we have none of the state

court pretrial or trial transcripts prepared in this case, and it is difficult to imagine how

we might fairly consider Herrington’s ineffective assistance of appellate counsel claim

                                             5
without those transcripts.      This is particularly problematic given that the record as

constituted contains evidence indicating that Petitioner’s ineffective assistance of

appellate counsel claim is, at least, a debatable constitutional claim. Accordingly, we

grant a certificate of appealability on Herrington’s ineffective assistance of appellate

counsel claim, vacate the district court’s dismissal of the claim, and remand to the district

court for further consideration once the court has obtained any necessary state court

transcripts.

       We have independently reviewed Herrington’s other claims on appeal and

conclude that Herrington is not entitled to a certificate of appealability on those claims.

Accordingly, we grant leave to proceed in forma pauperis, grant Herrington’s motion for

a certificate of appealability as to claim (5) and Herrington’s ineffective assistance of

appellate counsel claim, vacate the district court’s dismissal of those claims, and remand

for further proceedings on those claims. * We deny Herrington’s motion for a certificate

of appealability as to all other claims and dismiss this appeal as to those claims. 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 IN PART,
                                                                       VACATED IN PART,
                                                                         AND REMANDED



       *
           By this disposition, we express no view as to the ultimate merit of those claims.


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