                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 09-7701


ARTHUR SINGLETON,

                Plaintiff - Appellant,

           v.

WILLIE EAGLETON, Warden,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Beaufort. R. Bryan Harwell, District Judge.
(9:08-cv-02539-RBH)


Argued:   March 22, 2011                   Decided:   April 25, 2011


Before TRAXLER, Chief Judge, and MOTZ and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Leah Shen, DUKE UNIVERSITY SCHOOL OF LAW, Durham, North
Carolina, for Appellant.   William Edgar Salter, III, OFFICE OF
THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South
Carolina, for Appellee.   ON BRIEF: James E. Coleman, Jr., Sean
E. Andrussier, Students Daniel Kronberg, Leslie Cooper Mahaffey,
Matthew Vandenberg, Paul A. Woodard, DUKE UNIVERSITY SCHOOL OF
LAW, Durham, North Carolina, for Appellant.        Alan Wilson,
Attorney General, Donald J. Zelenka, Assistant Deputy Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

     Arthur Singleton filed a pro se petition under 28 U.S.C.

§ 2254 in the district court asserting that his state trial

counsel was ineffective for failing to file a direct appeal on

his behalf.   The district court denied relief.   We affirm.



                                 I.

     On September 23, 2003, Singleton was convicted in absentia

by a South Carolina jury on two counts of assault and battery

with intent to kill and one count of possession of a firearm

during the commission of a crime of violence.       Singleton knew

his trial was starting on that date, but voluntarily chose not

to attend.    He was later apprehended.   On February 26, 2004, the

state court sentenced Singleton to twelve years imprisonment for

the first assault conviction, seven years for the second assault

conviction, and five years for the firearm conviction, all to be

served concurrently.    Singleton did not file an appeal.

     On April 16, 2004, Singleton filed a state post-conviction

relief (“PCR”) application claiming that “[t]rial counsel was

instructed to [a]ppeal [his] guilty verdict,” but that counsel

“failed to follow [his] instruction . . . which prejudiced [him]

by denying him his first [a]ppeal as of right.”       J.A. 59.   At

the evidentiary hearing before the state PCR court, Singleton

testified as follows:

                                  3
        [W]hen they opened up my sentence, [trial counsel]
        walked me back in the . . . bull pen and he talked to
        me, and he . . . asked me did I want to appeal the
        case, and . . . I told him, yes.

             I instructed him to file the appeal . . . . And
        my mother and my girlfriend, [who] was the person
        responsible for paying him the money, instructed him
        as well to file for the appeal.     And they witnessed
        that he told me he was going to file for the appeal.

J.A. 92.       Singleton’s counsel testified that Singleton did not

instruct him to file an appeal and that he may have discussed

the   appeal    with    Singleton   but,    if    so,     “it   was   only   to   the

standpoint of, . . . I don’t think you have a case to appeal.”

J.A. 98-100.         Counsel testified that if Singleton had asked him

to file an appeal, he would have done so.                   The state PCR court

found that counsel’s testimony was credible and that Singleton’s

testimony      was    not   credible,   and      denied    relief.       Singleton

unsuccessfully petitioned for certiorari in the state supreme

court, again asserting through appointed counsel that he was

entitled to relief because he “asked trial counsel to file for

an appeal . . ., but no appeal was ever filed.”                         J.A. 205.

After    the   state     post-conviction      proceedings        were   concluded,

Singleton filed his pro se application for habeas relief in the

district court, which was also denied.




                                        4
                                        II.

        In   Strickland    v.    Washington,     466    U.S.   668    (1984),   the

Supreme Court held that defendants have a Sixth Amendment right

to “reasonably effective” legal assistance.                    Id. at 687.       To

prove a violation of this right, a defendant must show that his

attorney’s representation “fell below an objective standard of

reasonableness,” id. at 688, and that this failure prejudiced

him, see id. at 691-92.

     In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Supreme

Court recognized two distinct scenarios in which a defendant may

raise a claim of ineffective assistance of counsel for failure

to file a notice of appeal.             The first scenario occurs when “a

lawyer . . . disregards specific instructions from the defendant

to file a notice of appeal.”            Id. at 477.      Where such a claim is

established, the lawyer is per se deficient.                      See id.       The

second scenario occurs when trial counsel fails to consult with

a defendant about an appeal and there was a “constitutionally

imposed duty” to do so.          Id. at 480.     The duty to consult arises

“when   there   is   reason      to   think    either    (1)   that   a   rational

defendant would want to appeal (for example, because there are

nonfrivolous grounds for appeal), or (2) that this particular

defendant     reasonably        demonstrated     to     counsel   that    he    was

interested in appealing.”             Id.; see also Bostick v. Stevenson,

589 F.3d 160, 166 (4th Cir. 2009).

                                         5
       Singleton’s       claim       in    the    state      PCR    proceedings         fell

squarely under the first scenario of Flores-Ortega.                            He claimed

that     trial    counsel          discussed      filing     an     appeal       with    him

immediately after his sentencing, but disregarded his specific

instruction to file an appeal.                    The PCR state court made the

requisite credibility determinations, found that Singleton did

not instruct counsel to file an appeal, and denied relief.

       Where a state court has adjudicated a claim on the merits,

habeas    relief       may   not     be    granted    unless       the    state       court’s

adjudication “resulted in a decision that was contrary to, or

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), or “resulted in a decision that

was based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding,” 28

U.S.C. § 2254(d)(2).            The “determination of a factual issue made

by a State court shall be presumed to be correct” and “[t]he

applicant shall have the burden of rebutting the presumption of

correctness       by    clear      and     convincing      evidence.”            28   U.S.C.

§ 2254(e)(1); see Fisher v. Lee, 215 F.3d 438, 445-46 (4th Cir.

2000).

       Here,     the    state      PCR’s    factual     finding,         which    must    be

presumed    correct,         was    not    rebutted     by   clear       and     convincing

evidence.        Because the state court’s adjudication of the facts

                                              6
in light of the evidence was reasonable, and its decision was

neither    contrary     to     nor       an    unreasonable          application        of    the

applicable federal law, Singleton was clearly not entitled to

habeas    relief   on    his       claim       that       counsel    was    ineffective        in

failing to file an appeal as instructed, and we declined to

grant a certificate of appealability as to it.

      In his pro se § 2254 petition, however, it appeared that

Singleton     might      also       be        claiming        that    his        counsel      was

ineffective for failing to file a direct appeal on his behalf in

violation of the “duty to consult” scenario discussed in Flores-

Ortega.       Accordingly,          we        appointed       counsel      and     granted      a

certificate of appealability to consider the viability of such a

claim.     We now affirm.

      A prisoner in state custody “generally must exhaust state

court     remedies,     and    a    federal          habeas    court       may    not   review

unexhausted claims that would be treated as procedurally barred

by state courts – absent cause and prejudice or a fundamental

miscarriage of justice.”                 Longworth v. Ozmint, 377 F.3d 437,

447-48    (4th   Cir.    2004)       (internal            citation    omitted);         see   28

U.S.C. § 2254(b)(1)(A) (“An application for a writ of habeas

corpus on behalf of a person in custody pursuant to the judgment

of a State court shall not be granted unless it appears that . .

.   the   applicant     has    exhausted            the    remedies     available       in    the

courts of the State; or . . . there is an absence of available

                                                7
State corrective process.”).           In sum, “[t]he exhaustion doctrine

bars a claim if it is raised for the first time in a federal

habeas petition.”         Mickens v. Taylor, 240 F.3d 348, 356 (4th

Cir. 2001) (en banc); see also Breard v. Pruett, 134 F.3d 615,

619 (4th Cir. 1998).

       In order to exhaust his available state court remedies, a

petitioner must “fairly present[] to the state court both the

operative facts and the controlling legal principles associated

with each claim.”        Longworth, 377 F.3d at 448 (4th Cir. 2004)

(citation and internal quotation marks omitted).                     To satisfy

this   requirement,      “the   ground   must   be    presented   face-up   and

squarely.”      Id. (internal quotation marks omitted); see also

Mallory    v.   Smith,     27   F.3d     991,   994-95    (4th    Cir.   2001).

Otherwise, the state will be deprived of its “opportunity to

correct   the   constitutional     violation     in    the   first   instance.”

Longworth, 377 F.3d at 448 (internal quotation marks omitted).

“The procedural default doctrine bars a claim when the habeas

petitioner ‘fails to exhaust available state remedies and the

court to which the petitioner would be required to present his

claims in order to meet the exhaustion requirement would now

find the claims procedurally barred.’”            Mickens, 240 F.3d at 356

(quoting Breard, 134 F.3d at 619); see Longworth, 377 F.3d at

447-48.



                                         8
       Having now had the opportunity to review and consider the

state   court      record,         it   is    apparent     that    Singleton      failed        to

present     to     the     state        court     the    operative     facts          or   legal

arguments necessary to exhaust a failure-to-consult claim under

Flores-Ortega.           Not only did Singleton fail to present such a

claim “face-up and squarely” to the state court, the evidence

and arguments that he presented to the state court contradict

it.     Singleton testified that trial counsel did discuss filing

an appeal with him immediately after the sentencing hearing.

The only fact Singleton contested before the state court was

whether     or    not    he    specifically          directed      counsel      to     file     an

appeal during or after that conversation.                           In addition, while

Singleton        claimed      that       he    was   per    se    prejudiced          by   trial

counsel’s     failure         to    “follow      [his]     instruction”         and    file     an

appeal, J.A. 59, he never asserted before the state court that

he    was   prejudiced        from       a    forgone    meritorious       appeal.         As    a

result, the parties had no reason to develop evidence about the

content of the conversation between Singleton and his counsel,

nor did the state PCR court need to make any findings regarding

the consultation beyond the undisputed fact that it occurred.

       Because     Singleton            did    not   fairly      present    a    failure-to-

consult claim under Flores-Ortega in the South Carolina state

courts when he had the opportunity to do so, and because the

state courts would now treat the claim as procedurally barred,

                                                 9
the claim is procedurally defaulted on federal habeas review as

well.



                              III.

     For the foregoing reasons, we affirm the district court’s

denial of Singleton’s petition for writ of habeas corpus.



                                                            AFFIRMED




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