                           PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


ROBBIE JAMES LYONS,                   
              Petitioner-Appellant,
                 v.
                                                 No. 02-13
R. C. LEE, Warden, Central Prison,
Raleigh, North Carolina,
               Respondent-Appellee.
                                      
ROBBIE JAMES LYONS,                   
              Petitioner-Appellant,
                 v.
                                                 No. 02-14
R. C. LEE, Warden, Central Prison,
Raleigh, North Carolina,
               Respondent-Appellee.
                                      
           Appeals from the United States District Court
       for the Middle District of North Carolina, at Durham.
               Frank W. Bullock, Jr., District Judge.
                  (CA-000-107-1, CA-000-108-1)

                      Argued: October 28, 2002

                      Decided: January 21, 2003

  Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.



Application for certificate of appealability denied and appeal dis-
missed by published opinion. Judge Williams wrote the majority
opinion, in which Judge Luttig joined. Judge Gregory wrote a concur-
ring opinion.
2                            LYONS v. LEE
                             COUNSEL

ARGUED: John Kirk Osborn, OSBORN & TYNDALL, P.L.L.C.,
Chapel Hill, North Carolina, for Appellant. Valerie Blanche Spalding,
Special Deputy Attorney General, NORTH CAROLINA DEPART-
MENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON
BRIEF: Ernest L. Conner, Jr., DIXON, DOUB, CONNER & FOS-
TER, P.L.L.C., Greenville, North Carolina, for Appellant. Roy Coo-
per, Attorney General of North Carolina, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appel-
lee.


                              OPINION

WILLIAMS, Circuit Judge:

   A North Carolina jury convicted Robbie James Lyons of first-
degree felony murder and attempted robbery with a dangerous
weapon (attempted armed robbery). Following a capital sentencing
proceeding, the jury recommended, and the trial court imposed, a sen-
tence of death on the first-degree felony murder conviction.1 After
exhausting all available state remedies, Lyons filed two petitions in
the United States District Court for the Middle District of North Caro-
lina for a writ of habeas corpus. See 28 U.S.C.A. § 2254 (West 1994
& Supp. 2002). The first petition challenges a separate 1993 state
court conviction for common law robbery. The second petition chal-
lenges the conviction and sentence for first-degree murder. The dis-
trict court ordered that both petitions be denied and dismissed with
prejudice.

   Lyons seeks a certificate of appealability (COA) granting permis-
sion to appeal the district court’s orders denying his habeas relief. We
have consolidated Lyons’s two petitions for review in this court. For
the reasons that follow, we decline to grant a certificate of appeala-
bility and dismiss the appeal.
    1
   The trial court arrested judgment on the conviction of attempted rob-
bery with a dangerous weapon.
                             LYONS v. LEE                             3
                                   I.

                                  A.

   On the afternoon of September 25, 1993, Stephen Stafford was shot
and killed in his place of business. Victoria Lytle witnessed the shoot-
ing.2 Stafford owned a small business known as Sam’s Curb Market
(Sam’s) in Winston-Salem, North Carolina. Lytle testified that on
September 25, 1993, she stopped at Sam’s. She parked in front of the
store, and as she got out of her car, she noticed two men across the
street. Lytle entered the store; while she was in the store, one of the
men, Derick Hall, entered the store. While she was waiting for Hall
to pay for his items, Lytle noticed Lyons standing outside and looking
into the store. Lytle then paid for her purchases and left the store.

   As Lytle closed her car door, she heard three gunshots. Upon hear-
ing the shots, she looked up and saw a flash. She heard Stafford moan
and saw him fall forward over the counter and then backward to the
floor. Immediately afterward, she saw Lyons run out of the store with
a gun in his hand.

   Hall, Lyons’s accomplice, testified that, on the morning of Septem-
ber 25, Hall had a long-barreled .22-caliber gun. When Hall and
Lyons went to Sam’s, Lyons had possession of the gun. As they
approached the store, Lyons told Hall that he needed money and was
going to rob the store. After Lytle left Sam’s, Lyons entered and told
Stafford to freeze and turn around. Hall also obeyed the command to
demonstrate that he was playing no part in the robbery. Hall heard
five shots. When Hall turned around, Lyons was gone and Stafford
was lying on the floor. Stafford was grunting in an effort to speak,
and he reached up and pushed the burglar alarm before collapsing
back onto the floor.

   The forensic pathologist testified that one bullet entered Stafford’s
left hand and was recovered from his wrist. This wound was consis-
  2
   These facts are derived from the statement of facts in the Supreme
Court of North Carolina’s published opinion affirming Lyons’s convic-
tion and sentence for first-degree felony murder on direct appeal. See
State v. Lyons, 468 S.E.2d. 204 (N.C. 1996).
4                            LYONS v. LEE
tent with Stafford having grasped the gun and in itself would not have
been fatal. Two more bullet fragments were discovered in Stafford’s
upper arm. This wound also would not have been fatal in the short
term. Stafford had also been shot in the back. That bullet went into
Stafford’s chest through the lung and aorta and caused Stafford to
bleed to death. The firearms expert testified that two of the bullets
that were recovered were .22 caliber. The other fragments recovered
were too deformed to yield a result.

                                  B.

   The jury returned a verdict finding Lyons guilty of attempted
armed robbery and first-degree murder under the felony murder the-
ory, with the attempted armed robbery as the underlying felony. At
the sentencing phase, the court submitted and the jury found one
aggravating circumstance: that Lyons previously had been convicted
of a felony involving the use or threat of violence to the person. To
support this aggravating circumstance, the state submitted evidence
that Lyons had been convicted of two prior felonies involving the use
or threat of violence to the person, one of which was an armed robbery,3
and the other one of which was a common law robbery.4 The jury
found two statutory and four nonstatutory mitigating circumstances.
The jury unanimously found that the aggravating circumstance was
sufficiently substantial to call for the imposition of death when con-
sidered with the mitigating factors. The jury unanimously recom-
mended, and the trial court imposed, a sentence of death. See N.C.
Gen. Stat. § 15A-2000(b) (2001).

   Lyons appealed to the Supreme Court of North Carolina, which
found no error in Lyons’s conviction or death sentence. On October
7, 1996, the United States Supreme Court denied Lyons’s petition for
    3
   Lyons does not challenge the armed robbery conviction.
    4
   The common law robbery conviction stemmed from a crime that took
place on Stratford Road in Winston-Salem. Lyons was originally charged
with robbery with a deadly weapon (armed robbery). On August 10,
1993, Lyons entered a negotiated guilty plea to common law robbery
pursuant to North Carolina v. Alford, 400 U.S. 25 (1970). Lyons was
sentenced to probation and released. His probation was terminated in
October 1993.
                             LYONS v. LEE                             5
a writ of certiorari. Lyons did not challenge his common law robbery
conviction in either of these direct appeals.

   On April 14, 1997, Lyons filed a Motion for Appropriate Relief
(MAR) from the 1993 common law robbery conviction and a MAR
from the first-degree murder conviction in North Carolina state court.
After holding two evidentiary hearings, the state MAR court denied
Lyons’s requested relief. On August 19, 1999, the Supreme Court of
North Carolina denied Lyons’s petition for certiorari review. On Janu-
ary 18, 2000, the United States Supreme Court denied certiorari in
both cases.

   Lyons then filed two separate petitions for habeas relief in the fed-
eral district court. One challenges his common law robbery convic-
tion, and the other challenges his first-degree murder conviction. The
petitions were referred to a United States magistrate judge, see 28
U.S.C.A. § 636 (West 1993 & Supp. 2002), who recommended that
the district court dismiss both petitions. After a de novo review, the
district court adopted the magistrate judge’s recommendations as to
both petitions and dismissed Lyons’s petitions for habeas relief. The
district court also declined to issue COAs. Fed. R. App. P. 22(b)(1)
("If an applicant files a notice of appeal, the district judge who ren-
dered the judgment must either issue a certificate of appealability or
state why a certificate should not issue.").

   Lyons seeks to appeal four issues: (1) whether he can challenge his
common law robbery conviction in its own right; (2) whether he can
challenge his enhanced sentence for first-degree murder on the
ground that his prior common law robbery conviction was unconstitu-
tionally obtained; (3) whether the jury instructions during the sentenc-
ing phase of his first-degree murder conviction violated his due
process rights; and (4) whether North Carolina’s short-form indict-
ment renders the first-degree murder conviction and death sentence
invalid pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000). We
address each of Lyons’s requests below.

                                  II.

  As the district court declined to issue a COA, we must first grant
a COA to entertain Lyons’s appeal. 28 U.S.C.A. § 2253(c)(1) (West
6                             LYONS v. LEE
Supp. 2002); Slack v. McDaniel, 529 U.S. 473, 485 (2000). "Under
AEDPA, a COA may not issue unless ‘the applicant has made a sub-
stantial showing of the denial of a constitutional right.’" Slack, 529
U.S. at 483 (quoting 28 U.S.C.A. § 2253(c)). To make the required
showing, the petitioner must demonstrate that "reasonable jurists
could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues
presented were ‘"adequate to deserve encouragement to proceed fur-
ther."’" Id. at 484 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4
(1983)).

A. Challenge to the Common Law Robbery Conviction In Its Own
                           Right

   The district court dismissed Lyons’s challenge to his common law
robbery conviction in its own right for lack of jurisdiction because
Lyons was no longer "in custody" with respect to this conviction. In
Slack, the Supreme Court clarified the showing required to satisfy
§ 2253(c) where the district court dismisses the petition based on pro-
cedural grounds. See Slack, 529 U.S. at 484. Where the district court
"denies a habeas petition on procedural grounds without reaching the
prisoner’s underlying claims, a COA should issue when the prisoner
shows, 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." Id. "Section 2253 man-
dates that both showings be made before the court of appeals may
entertain the appeal." Id. at 485. "Where a plain procedural bar is
present and the district court is correct to invoke it to dispose of the
case, a reasonable jurist could not conclude either that the district
court erred in dismissing the petition or that the petitioner should be
allowed to proceed further." Id. at 484.

   As Lyons was not "in custody" for the common law robbery con-
viction at the time he filed his habeas petition, reasonable jurists could
not find the district court’s procedural ruling debatable. Maleng v.
Cook, 490 U.S. 488, 490-91 (1989) (interpreting 28 U.S.C.A.
§ 2254(a) as requiring that the habeas petitioner be "in custody" under
the conviction or sentence under attack at the time his petition is
filed). Thus, we deny the application for a COA on this claim.
                             LYONS v. LEE                             7
 B. Challenge to the First-Degree Murder Sentence As Enhanced
           By the Common Law Robbery Conviction

   Lyons also challenges his first-degree murder sentence as enhanced
by the common law robbery conviction on the ground that the com-
mon law robbery conviction was unconstitutionally obtained. The dis-
trict court applied the general rule articulated in Lackawanna County
Dist. Att’y v. Coss, 532 U.S. 394, 400 (2001), that a petitioner may
not challenge an enhanced sentence on the ground that the prior con-
viction was unconstitutionally obtained and accordingly dismissed the
claim. Because, as we discuss below, Lyons has not shown "that
jurists of reason would find it debatable whether the district court was
correct in its procedural ruling," Slack, 529 U.S. at 484, we deny the
application for a COA on this claim.

   Lyons first argues that Lackawanna County Dist. Att’y v. Coss, 532
U.S. 394, 400 (2001), does not apply to him because his original con-
viction was void. This argument is without merit. In the alternative,
Lyons argues that he falls into the exception to Coss for the failure
to appoint counsel and the exception articulated by the plurality in
Coss for claims of actual innocence. As Lyons was represented by
counsel in the common law robbery proceeding, the exception for
failure to appoint counsel does not apply. Even assuming that the
exception espoused by the plurality in Coss exists, Lyons does not
satisfy the exception because his claim of actual innocence5 does not
  5
   Because Lyons entered an Alford plea, to show "actual innocence," he
must show that he was factually innocent of both the common law rob-
bery charge to which he pleaded and the original charge of armed rob-
bery. See Bousley v. United States, 523 U.S. 614, 624 (1998) ("In cases
where the Government has forgone more serious charges in the course
of plea bargaining, petitioner’s showing of actual innocence must also
extend to those charges.").
   Lyons claims that he is innocent of the original charge of armed rob-
bery because the pellet pistol was not functional. According to Lyons,
"Tracee Smith [the driver of the car] knew that the gun used by [Lyons’s
co-defendant] to threaten the alleged victim was a non-functional pellet
gun belonging to her nephew." (Appellant’s Br. at 12-13.) There is no
indication that such testimony could not have been presented in 1993
through the exercise of due diligence.
8                             LYONS v. LEE
rest on evidence that could not have been discovered earlier through
the exercise of due diligence.

   Thus, the general rule that federal postconviction relief is unavail-
able when a prisoner challenges a current sentence on the ground that
it was enhanced based on an allegedly unconstitutional prior convic-
tion for which the petitioner is no longer in custody applies on the
facts of this case. Because we cannot conclude that "reasonable
jurists" would find the district court’s procedural ruling "debatable,"
Slack, 529 U.S. at 484, we deny Lyons’s application for a COA on
this claim.

      C. Challenge to First-Degree Murder Jury Instructions

   Next, Lyons argues that the jury was improperly instructed as to its
consideration of mitigating circumstances in violation of McKoy v.
North Carolina, 494 U.S. 433 (1990). The district court found that
this claim had no merit. "Where a district court has rejected the [peti-
tioner’s] constitutional claims on the merits, the showing required to
satisfy § 2253(c) is straightforward: The petitioner must demonstrate
that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong." Slack, 529 U.S. at 484.

   Lyons has not shown that there is a "reasonable likelihood that the
jury . . . applied the . . . instruction in a way that prevent[ed] the con-
sideration of constitutionally relevant evidence." Boyde v. California,
494 U.S. 370, 380 (1990).6 Accordingly, reasonable jurists could not

   Moreover, Lyons does not rebut the finding of the state habeas court
that denied his Motion for Appropriate Relief (the state MAR court) that
"the State had strong evidence of [Lyons’s] guilt of armed robbery pursu-
ant to N.C.G.S. § 14-87." (J.A. at 455.)
   6
     The Supreme Court held in McKoy that the North Carolina jury
instruction requiring a jury unanimously to find the existence of mitigat-
ing circumstances violated the Eighth Amendment. McKoy, 494 U.S. at
439. In this case, the trial court did not instruct the jury that it unani-
mously must find the existence of mitigating circumstances. The jury
was instructed to resolve four issues in reaching its decision at the sen-
                              LYONS v. LEE                                9
find the district court’s assessment of the constitutional claims debat-
able.

   Lyons also argues that the trial court’s response to the jury’s ques-
tion was unconstitutionally coercive.7 This claim has no merit.8

tencing phase of the trial: (1) whether the jury unanimously found,
beyond a reasonable doubt, the existence of the aggravating circum-
stance; (2) whether one or more members of the jury found one or more
mitigating circumstances; (3) whether the jury unanimously found,
beyond a reasonable doubt, that the mitigating circumstances found by
one or more jurors are insufficient to outweigh the aggravating circum-
stance found unanimously by the jury; and (4) whether the jury unani-
mously found, beyond a reasonable doubt, that the aggravating
circumstance, if found, is sufficiently substantial to call for the imposi-
tion of the death sentence when considered with the mitigating circum-
stances found by one or more jurors. We have upheld this portion of the
instructions delivered by North Carolina courts as not violative of McKoy
on several occasions. See Williams v. French, 146 F.3d 203, 215-16 (4th
Cir. 1998); Noland v. French, 134 F.3d 208, 213-14 (4th Cir. 1998);
Smith v. Dixon, 14 F.3d 956, 981 n.15 (4th Cir. 1994) (en banc); Lawson
v. Dixon, 3 F.3d 743, 754 (4th Cir. 1993); Maynard v. Dixon, 943 F.2d
407, 418-20 (4th Cir. 1991).
   7
     After three hours of deliberation, the jury asked "whether or not [its]
decision [had] to be unanimous on issue number four." (J.A. at 129.) The
court responded "your decision on issue number four does have to be
unanimous. If you’re unanimous — if all twelve of you find yes, then
you would answer it yes. If all twelve of you find no, then you would
answer it no." (J.A. at 129.)
   Issue Four on the verdict sheet asked, "Do you unanimously find
beyond a reasonable doubt that the aggravating circumstance found
unanimously by you in Issue One is sufficiently substantial to call for the
imposition of the death penalty when considered with the mitigating cir-
cumstance or circumstances found by one or more of you?" (J.A. at 139.)
   8
     The response given by the judge was consistent with the earlier
instructions, which we have found did not violate McKoy. See also
Green v. French, 143 F.3d 865, 889 (4th Cir. 1998) (rejecting similar
claim that requiring unanimity as to the sentence recommendation vio-
lated McKoy), abrogated on other grounds by Williams v. Taylor, 529
U.S. 362 (2000).
10                           LYONS v. LEE
Because we cannot conclude "that reasonable jurists would find the
district court’s assessment of the constitutional claim[ ] debatable or
wrong," Slack, 529 U.S. at 484, we deny Lyons’s application for a
COA on this claim.

     D. Challenge to North Carolina’s Short-Form Indictment

   Lyons moved for leave to amend his habeas petition to include a
claim that the "short-form" indictment rendered his conviction for
first-degree murder invalid because the indictment did not allege each
element of the crime of first-degree murder, in violation of Jones v.
United States, 526 U.S. 227 (1999), and Apprendi v. New Jersey, 530
U.S. 466 (2000). The district court denied Lyons’s motion to amend
because "Apprendi cannot have retroactive application to this case."
(J.A. at 548.) The district court recognized that we have held that
Apprendi and Jones state a new rule of constitutional law that cannot
be applied retroactively to cases on collateral review. See United
States v. Sanders, 247 F.3d 139, 151 (4th Cir.), cert. denied, ___ U.S.
___, 122 S. Ct. 573 (2001); see also Hartman v. Lee, 283 F.3d 190,
192 n.2 (4th Cir. 2002). As Lyons has not shown that reasonable
jurists would debate whether the district court’s procedural ruling was
correct, Slack, 529 U.S. at 484, we deny the application for a COA
on this claim.

                                  III.

  For the reasons stated herein, we deny Lyons’s application for a
COA and dismiss the appeal.

                                                           DISMISSED

GREGORY, Circuit Judge, concurring:

   I concur with the majority’s finding that Lyons has failed to make
a substantial showing of a denial of a constitutional right on any of

  Moreover, the lack of an instruction regarding the consequences of a
deadlock was not unconstitutionally coercive. The United States
Supreme Court recently held that a trial court need not instruct the jury
as to the consequences should it fail to reach a unanimous decision.
Jones v. United States, 527 U.S. 373, 381-82 (1999).
                              LYONS v. LEE                              11
his claims. I write separately, however, because I read Lackawanna
Co. Dist. Att’y v. Coss, 532 U.S. 394 (2001), more broadly than does
the majority.

   In Coss, the Supreme Court stated, "When an otherwise qualified
§ 2254 petitioner can demonstrate that his current sentence was
enhanced on the basis of a prior conviction obtained where there was
a failure to appoint counsel in violation of the Sixth Amendment, the
current sentence cannot stand and habeas relief is appropriate." Id. at
403-04. The majority finds that because "Lyons was represented by
counsel in the common law robbery proceeding," Coss does not
afford him any relief. Ante, at 7.

   I, however, do not read the Coss rule quite so narrowly. As Justice
O’Connor explained, "[A] habeas petition directed at the enhanced
sentence may effectively be the first and only forum available for
review of the prior conviction." Coss, 532 U.S. at 406 (O’Connor, J.,
concurring) (emphasis added). Coss applies, therefore, not only to sit-
uations where there is an absolute failure to appoint any counsel, but
also to situations where there is a Sixth Amendment violation so sub-
stantial that it is as if a defendant never had the benefit of legal repre-
sentation. It is undisputed that Lyons had a court-appointed attorney
in the prior conviction: Mr. George R. "Pete" Clary. The question in
this case is whether Clary’s advice — that Lyons enter an Alford
guilty plea in exchange for a sentence of probation — was so incom-
petent, conflicted, or corrupt as to effectively deny Lyons his Sixth
Amendment right to counsel. Because Lyons is unable to make a sub-
stantial showing that this litigation strategy denied him his constitu-
tional right to counsel, Lyons’ request for a COA is denied under
either the majority’s or my application of Coss. Accordingly, I con-
cur.
