                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 12-7270


JOEY H. JOHNSON,

                Petitioner – Appellant,

          v.

WARDEN OF BROAD RIVER CORRECTIONAL INSTITUTION,

                Respondent – Appellee,

          and

STATE OF SOUTH CAROLINA; WILLIAM R. BYARS, SCDC Director,

                Respondents.



Appeal from the United States District Court for the District of
South Carolina, at Aiken.   J. Michelle Childs, District Judge.
(1:11-cv-02754-JMC)


Submitted:   February 28, 2013               Decided:   March 8, 2013


Before SHEDD, AGEE, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Joey H. Johnson, Appellant Pro Se.   William Edgar Salter, III,
Assistant  Attorney  General,   Donald   John  Zelenka,  Senior
Assistant Attorney General, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

              Joey    H.    Johnson    appeals       from    the     district          court’s

order adopting the report and recommendation of the magistrate

judge and denying Johnson’s 28 U.S.C. § 2254 (2006) petition.

We   previously       granted    a    certificate       of    appealability            on   the

issues of whether, in light of Martinez v. Ryan, 132 S. Ct. 1309

(2012), (1) the trial court erred in failing to place the case

in   abeyance    to    permit    Johnson       to    exhaust    his    claim       that       he

received      ineffective       assistance       of     counsel       when       his     trial

counsel    failed      to     file    a    requested         notice    of        appeal       or

(2) Johnson showed sufficient cause for his failure to exhaust

this claim.      After further briefing, we affirm.

              The question before us is whether Johnson can show

cause   for    his    failure    to    exhaust       based    upon    the    ineffective

assistance of counsel during his postconviction proceeding.                                 The

Martinez      court        characterized       its     holding        as     a     “limited

qualification” to the rule in Coleman v. Thompson, 501 U.S. 722,

752-53 (1991), that an attorney’s negligence in a postconviction

proceeding does not establish cause for procedural default.                                 The

Court noted the reality that when an “initial-review collateral

proceeding is the first designated proceeding for a prisoner to

raise a claim of ineffective assistance of trial counsel, the

collateral      proceeding      is    in   many       ways    the    equivalent          of    a

prisoner’s direct appeal . . . .”                   Martinez, 132 S. Ct. at 1317.

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Accordingly,      while        ineffective         assistance        in     initial-review

collateral      proceedings         might    constitute       cause       for    failure    to

exhaust    certain      claims,       the    Martinez        rule    did     not    “concern

attorney errors in other kinds of proceedings including appeals

from initial-review collateral proceedings . . . .”                                  Id. at

1320.

              Thus,     even    assuming          that    Johnson        could    raise    his

instant ineffective assistance claim for the first time only in

his   state     postconviction          proceeding,         he     was     represented      by

counsel    at     his    postconviction            hearing,        and    his     claim    was

properly      exhausted        at    that    hearing.            Instead,        Johnson    is

asserting that his attorney improperly failed to preserve his

ineffective assistance claim on appeal from the denial of his

postconviction petition.              However, Martinez assures that Johnson

got   a   day   in    court     at    his    original        postconviction         hearing;

“deprivation      of     a     second       day     [i.e.     an    appeal]        does    not

constitute cause.”           Arnold v. Dormire, 675 F.3d 1082, 1087 (8th

Cir. 2012).

              Accordingly, because Johnson alleges only ineffective

assistance of appellate postconviction counsel, his allegations

do not constitute cause for his failure to exhaust under the

limited exception in Martinez.                    Instead, his claims fall under

the     general      Coleman        rule     that        ineffective       assistance       of

postconviction        counsel       cannot    constitute         cause     for    procedural

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default.      As such, the district court correctly declined to stay

the    case   pending   Johnson’s      attempt   to    exhaust    in   a    second

postconviction petition.

              We thus affirm the district court’s judgment.                We deny

Johnson’s motion for appointment of counsel.                   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.

                                                                        AFFIRMED




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