                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-7516


CLIFFORD THOMPSON,

                Petitioner - Appellant,

          v.

JON OZMINT, South Carolina Department of               Corrections;
WARDEN, BROAD RIVER CORRECTIONAL INSTITUTION,

                Respondents - Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.     Henry M. Herlong, Jr., Senior
District Judge. (3:08-cv-02794-HMH)


Submitted:   June 18, 2010                   Decided:    August 5, 2010


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


Vacated and remanded by unpublished per curiam opinion.


Clifford Thompson, Appellant Pro Se. Donald John Zelenka, Deputy
Assistant Attorney General, Columbia, South Carolina, for
Appellees.


Unpublished opinions are not binding precedent in this circuit.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

               Clifford Thompson, a South Carolina prisoner, appeals

from     the    district       court’s     order          adopting     the       report    and

recommendation of the magistrate judge and denying his 28 U.S.C.

§ 2254 (2006) petition.            We previously granted a certificate of

appealability on the following issues: (1) whether the trial

court’s    lack      of     jurisdiction       over       two     counts    of    conviction

resolved       by     Thompson’s        plea       agreement       rendered       the     plea

agreement       involuntary,       and     (2)          whether     trial     counsel      was

ineffective          for     negotiating           and     recommending          said     plea

agreement.          After reviewing the subsequent briefing, we vacate

the portion of the district court’s order resolving these issues

and remand for further proceedings.

               The State contends that these issues are procedurally

defaulted due to Thompson’s failure to raise the claims in state

court.     Procedural default occurs when a habeas petitioner fails

to exhaust his state remedies and the state court would now find

the claims procedurally barred.                         Mickens v. Taylor, 240 F.3d

348, 356 (4th Cir. 2001).                 When a procedural default occurs,

federal review is barred unless the petitioner can show cause

for his default and resulting prejudice, or actual innocence.

Harris v. Reed, 489 U.S. 255, 262 (1989).                            The petitioner may

also   avoid     the       procedural    bar       by    “prov[ing]    that      failure    to

consider the claims will result in a fundamental miscarriage of

                                               2
justice.”     Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir.),

cert. denied, 129 S. Ct. 162 (2008).                     In general, in South

Carolina, “absent sufficient reason for not raising a claim in a

first [post-conviction relief (“PCR”)] application or very rare

procedural    circumstances,     [S.C.      Code       Ann.]    §    17-27-90        [Rev.

2003] bars the claim in a successive application.”                         Matthews v.

Evatt, 105 F.3d 907, 916 (4th Cir. 1997).

            Here, Thompson’s counsel did not raise these claims in

his initial PCR application.           However, liberally construing his

pleadings, Thompson did raise the claims in his pro se petition

for relief to the Supreme Court of South Carolina, as well as in

his § 2254 petition and his objections to the magistrate judge’s

report in district court.        Nonetheless, neither the state court,

magistrate judge, nor district court explicitly ruled on either

Thompson’s    potential     default    or    the       merits       of    the   claims.

Further,    because   the   State     did   not    raise       the       default     issue

earlier, Thompson has not had an opportunity to show cause and

prejudice or a miscarriage of justice.

            Accordingly,     while     we   express        no       opinion     on     the

procedural    or   substantive      validity      of    Thompson’s         claims,     we

grant leave to proceed in forma pauperis and vacate the portion

of the district court’s order dismissing these claims and remand

for a ruling on whether the specified claims are procedurally

defaulted and, if not, the merits of Thompson’s claims.                         We deny

                                       3
Thompson’s motions for appointment of counsel.              We dispense with

oral   argument   because     the    facts   and   legal    contentions    are

adequately   presented   in    the    materials    before    the   court   and

argument would not aid the decisional process.



                                                      VACATED AND REMANDED




                                       4
