Derek J Brown v. Warden of Perry Correctional

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 0:12-cv-02988-TMC Copies to all parties and the district court/agency. [999560210]. Mailed to: Brown. [14-7611]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-7611

DEREK J. BROWN,
Petitioner - Appellant,
v.
WARDEN OF PERRY CORRECTIONAL INSTITUTION,
Respondent - Appellee.

Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Timothy M. Cain, District Judge.
(0:12-cv-02988-TMC)

Submitted:

March 31, 2015

Decided:

April 7, 2015

Before KING, SHEDD, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Derek J. Brown, Appellant Pro Se.
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Unpublished opinions are not binding precedent in this circuit.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:
Derek J. Brown, a state inmate, filed a 28 U.S.C. § 2254
(2012) petition raising multiple claims.
recommended

denying

a

dismissing the petition.
certificate

of

certificate

of

The magistrate judge
appealability

and

The district court, however, granted a

appealability

on

one

claim,

namely,

whether

appellate counsel was ineffective for failing to challenge on
direct appeal the trial court’s denial of a mistrial based on
improper comments made by the prosecutor during closing argument
regarding Brown’s decision not to testify.
Brown is entitled to habeas relief on a claim adjudicated
“on the merits” by a state court only if the state court’s
disposition

of

that

claim

“was

contrary

to,

or

involved

an

unreasonable application of, clearly established Federal law, as
determined

by

the

Supreme

Court,”

or

“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);

Barnes v. Joyner, 751 F.3d 229, 238 (4th Cir. 2014).

Clearly

established federal law “refers to the holdings, as opposed to
the dicta, of [the Supreme] Court’s decisions as of the time of
the relevant state-court decision.”
U.S. 362, 412 (2000).
he

demonstrates

“that

Williams v. Taylor, 529

Brown may not obtain habeas relief unless
the

state

2

court’s

ruling

on

the

claim

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being presented in federal court was so lacking in justification
that

there

existing

was
law

disagreement.”

an

error

well

beyond

understood

any

and

possibility

comprehended
for

in

fairminded

Harrington v. Richter, 562 U.S. 86, 103 (2011).

Before a federal court grants habeas relief, it must conclude
that the constitutional error had a “substantial and injurious
effect or influence in determining the jury’s verdict.”

Barnes,

751 F.3d at 239 (citation and internal quotation marks omitted).
Factual findings by the state court are presumed correct, and
Brown bears the burden to rebut the presumption by clear and
convincing

evidence.

See

28

U.S.C.

§ 2254(e)(1);

Tucker

v.

Ozmint, 350 F.3d 433, 439 (4th Cir. 2003).
In light of this standard, we conclude that the district
court did not err in concluding that the state post-conviction
court did not unreasonably apply clearly established federal law
in determining that the prosecutor’s comments did not so infect
the trial with unfairness as to make the resulting conviction a
denial of due process and, therefore, appellate counsel was not
constitutionally ineffective in failing to raise the issue on
direct appeal.
the

district

Accordingly, we affirm for the reasons stated by
court.

Brown

(D.S.C. Sept. 25, 2014).

v.

Warden,

No.

0:12-cv-02988-TMC

We dispense with oral argument because

the facts and legal contentions are adequately presented in the

3

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materials

before

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this

court

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and

argument

would

not

aid

the

decisional process.
AFFIRMED

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