                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-7331


ROBERT STEVEN JOYCE,

                Petitioner - Appellant,

          v.

WARDEN RANDALL MATHENA,

                Respondent - Appellee.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.       Norman K. Moon, Senior
District Judge. (7:14-cv-00348-NKM-RSB)


Submitted:   January 19, 2016             Decided:   February 25, 2016


Before KING, DIAZ, and FLOYD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Robert Steven Joyce, Appellant Pro Se.           Craig Stallard,
Assistant Attorney General, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Robert Steven Joyce 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.”           28 U.S.C. § 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 that the district court’s assessment of the constitutional

claims is 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.

       Joyce’s convictions arose from an altercation with Jesse

Adams at the apartment of Martha Stultz; Adams was seriously

injured    during        the   altercation.            At   a    bench    trial,    Joyce

testified that Adams had assaulted him and that he was acting in

self-defense,       while      Adams    and      Stultz     testified      that     Joyce

attacked Adams without provocation.                    The trial court convicted

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Joyce and sentenced him to 27 years’ imprisonment, with half of

the sentence suspended.

      Joyce filed a state habeas petition arguing that counsel

was   ineffective      for    failing        to    perfect      his    appeal     and   for

failing     to    cross-examine       Stultz        and     Adams      regarding     their

alleged drug use on the night of the offense.                          The state court

granted   the      petition    with     respect        to    counsel’s      failure      to

perfect Joyce’s appeal, denied it on the merits with respect to

counsel’s    cross-examination          of       Stultz   and    Adams,     and    granted

Joyce a delayed appeal.           The Virginia Court of Appeals denied

Joyce’s direct appeal, and the Supreme Court of Virginia denied

Joyce’s petition for certiorari and petition for rehearing.

      Joyce later filed a second state habeas petition asserting

several claims, including that trial and appellate counsel were

ineffective.        The state court found that Joyce’s ineffective

assistance of appellate counsel claims were meritless, and that

his remaining claims were procedurally defaulted because he did

not assert them in his first habeas petition.                         See Va. Code Ann.

§ 8.01-654(B)(2)       (2015).          The        Supreme       Court     of     Virginia

dismissed        Joyce’s     petition        for     appeal      and      petition      for

rehearing.

      Joyce’s      § 2254    petition    asserted         five    claims     that    trial

counsel   was     ineffective.        The         district    court      dismissed      this

petition, finding that the state court’s holding that Joyce’s

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claims were procedurally defaulted constituted an adequate and

independent state ground for dismissing these claims and that

Joyce     had    not   shown   sufficient      prejudice   to   overcome   the

default.

        “Federal courts will not review a question of federal law

decided by a state court if the state court’s decision rests on

an independent and adequate state law ground.”              Prieto v. Zook,

791 F.3d 465, 468 (4th Cir.) (internal quotation marks omitted),

cert. denied, 136 S. Ct. 28 (2015).             “[W]e have held on numerous

occasions that the procedural default rule set forth in § 8.01-

654(B)(2)       constitutes    an   adequate    and   independent   state-law

ground for decision.”          Mackall v. Angelone, 131 F.3d 442, 446

(4th Cir. 1997) (en banc).           “A habeas petitioner can rescue his

constitutional claim from procedural default if he establishes

either ‘cause and prejudice’ for the default or that the default

would yield a ‘fundamental miscarriage of justice.’”                  Prieto,

791 F.3d at 469.

        Joyce argues that, under Martinez v. Ryan, 132 S. Ct. 1309

(2012), the absence of counsel in his PCR proceedings provided

cause for his procedural default.

        Martinez held that a federal habeas petitioner who
        seeks to raise an otherwise procedurally defaulted
        claim     of    ineffective-assistance-of-trial-counsel
        before the federal court may do so only if: (1) the
        ineffective-assistance-of-trial-counsel   claim  is   a
        substantial one; (2) the cause for default consists of
        there being no counsel or only ineffective counsel

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       during the state collateral review proceeding; (3) the
       state collateral review proceeding was the initial
       review proceeding in respect to the ineffective-
       assistance-of-trial-counsel claim; and (4) state law
       requires   that   an   ineffective-assistance-of-trial-
       counsel   claim   be   raised  in   an   initial-review
       collateral proceeding.

Fowler v. Joyner, 753 F.3d 446, 461 (4th Cir. 2014) (brackets

and internal quotation marks omitted), cert. denied, 135 S. Ct.

1530        (2015);      see       also         Prieto,        791      F.3d     at       469

(“[C]onstitutionally           ineffective            assistance       of   counsel      may

provide ‘cause’ for a procedural default.”).                          The district court

found that Joyce had likely shown cause for his default but had

not shown prejudice because his ineffective assistance claims

were meritless in light of the overwhelming evidence against

him.    Although the district court did not expressly apply the

Martinez framework, its finding that Joyce’s claims were plainly

meritless amounts to a finding that they were not substantial.

       On    appeal,     Joyce     argues        that       trial    counsel    failed    to

adequately      impeach      Stultz       and       Adams    “by    pointing    out   their

perjury as depicted in [the] Statement of Facts.”                           Joyce appears

to be renewing the argument he raised below-that these witnesses

gave testimony at a pretrial hearing that differed from their

trial   testimony.           However,      Joyce       does    not    indicate    how     the

witnesses’       trial       testimony          differed       from     their     pretrial

testimony      or     give   any   indication          that    such    differences       were

substantial enough to effectively impeach them.                                Indeed, the

                                                5
district court noted that there were minor inconsistencies in

the    witnesses’     testimony          at       trial,        but    the     trial        judge

apparently     found        the     witnesses            credible         despite           these

inconsistencies.          Accordingly,            we   conclude        that   the    district

court’s    finding     that       this    claim        was      insubstantial          is    not

reasonably debatable.

       Joyce also argues that trial counsel failed to introduce

evidence that Joyce was assaulted.                     The only such evidence that

Joyce cites is his mugshot.               The district court found that this

mugshot, which only shows “a small blemish in the middle of

[Joyce’s] forehead,” was not probative enough for its omission

to    substantiate    a     claim    of       ineffective         assistance.           Having

reviewed this evidence, we conclude that the district court’s

finding is not reasonably debatable. *

       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



       *
       Joyce also         argues that the trial court denied him his
right to counsel          of his choice.    This claim was not raised
below, and we will        not consider it for the first time on appeal.
See Muth v. United        States, 1 F.3d 246, 250 (4th Cir. 1993).



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