Jihad Melvin v. Frank Perry

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 5:13-hc-02269-F. Copies to all parties and the district court/agency. [999954371]. [15-6467]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-6467

JIHAD RASHID MELVIN,
Petitioner – Appellant,
v.
FRANK L. PERRY; FELIX TAYLOR,
Respondents – Appellees.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Fox, Senior
District Judge. (5:13-hc-02269-F)

Argued:

September 21, 2016

Decided:

October 25, 2016

Before KING, SHEDD, and THACKER, Circuit Judges.

Affirmed by unpublished opinion. Judge Shedd wrote the opinion,
in which Judge King and Judge Thacker joined.

ARGUED: Mary Elizabeth McNeill, NORTH CAROLINA PRISONER LEGAL
SERVICES,
INC.,
Raleigh,
North
Carolina,
for
Appellant.
Clarence Joe DelForge, III, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellee.
ON BRIEF: Roy
Cooper, Attorney General of the State of North Carolina, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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SHEDD, Circuit Judge:
Jihad
petition

Melvin

appeals

pursuant

to

28

the

denial

U.S.C.

of

his

§ 2254.

federal

For

the

habeas

following

reasons, we affirm.
I
A

North

Carolina

Jury

convicted

Melvin

of

first-degree

murder and accessory after the fact to murder. The Supreme Court
of North Carolina affirmed Melvin’s conviction. In doing so, the
court summarized the facts pertaining to the underlying crimes. 1
“At

trial,

the

State

presented

evidence

that,

at

approximately 11:00 am on 21 March 2007, Melvin drove Robert
Ridges (Ridges) and Tony Cole (Cole) to the home of Ridges’
brother, Elijah. As Ridges, Cole, and Melvin were driving away
after the visit, they spotted the victim, Almario Millander.
They waved the victim over to their car, and Ridges sold him a
quantity of what was purported to be crack cocaine. As they
attempted to leave, however, the car stalled. The victim walked
over

to

the

counterfeit

immobilized

crack,

and

car,

claimed

demanded

his

Ridges

money

had

back.

sold

When

him

Ridges

denied the accusation, the victim pulled out a sawed-off shotgun
and pointed it at Ridges, who was unarmed. Melvin was able to

1

In this
“defendant.”

summary,

we

have

2

substituted

“Melvin”

for

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restart the car and drive away with Ridges and Cole without
shots being fired.
“In the aftermath of the encounter, an angry Ridges ‘swore
on his son’ that he was going to ‘get’ the victim. Ridges left
Cole and Melvin for a time, then returned. As the three later
‘chilled’ and smoked ‘weed’ at a friend’s house, Cole realized
that Ridges had obtained a gun when he saw Ridges ‘pull[] it
out’ in Melvin’s presence. That same evening, Melvin drove as
he, Ridges, and Cole looked for the victim. They came across an
individual named Ken Adams, who told them the victim was at
Adams’s residence. Cole exhorted Ridges: ‘[G]o in his house, you
going to kill this man, you got to kill the other guy too. Can’t
be

no

eyewitnesses.’

Melvin

agreed

with

Cole

but

Ridges

responded that the victim was the only one he wanted. During
this

discussion,

Melvin

briefly

took

possession

of

Ridges’s

pistol, but Ridges retrieved it. Ridges, Cole, and Melvin exited
the car and walked toward Adams’s residence. Melvin climbed the
steps to the rear of the residence, while Ridges entered through
the back door. Adams, who was inside, saw Ridges open fire on
the victim. As the victim tried to escape through a window,
Ridges shot him twice, hitting the victim behind one knee and
inflicting a fatal wound to the victim’s chest.
“Melvin then drove Ridges and Cole from the scene. They
stopped at a gas station where Cole and Ridges made purchases
3

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while

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Melvin

waited

in

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the

car.

After

they

left,

a

law

enforcement officer attempted to stop Melvin’s car using his
blue

lights

and

siren.

Melvin

turned

onto

a

dirt

road

and

accelerated, raising a cloud of dust that caused the pursuing
officer to drop back. The car stalled again, so Melvin pulled to
the side of the road, and he, Ridges and Cole fled into nearby
woods. The officer, who was acting on information indicating
only that the vehicle’s registration was faulty, stopped at the
abandoned car, but, unable to find the occupants and seeing no
evidence of a crime, left after a short wait.
“Once

the

officer

departed,

Melvin,

Ridges,

and

Cole

returned to the car, wiped it down to remove fingerprints, and
attempted to set it on fire. They then dismantled the murder
weapon

and

wiped

all

fingerprints

off

the

pieces.”

State

v.

Melvin, 707 S.E.2d 629, 630–31 (N.C. 2010) (“Melvin I”).
II
In 2007, a North Carolina grand jury indicted Melvin for
one

count

of

first-degree

murder

and

one

count

of

accessory

after the fact to murder. Because no evidence indicated that
Melvin had fired the shots that killed the victim, the murder
charge was based on the theory that Melvin was an accomplice or
acted in concert with the shooter.
Pertinent to this appeal, at a pretrial hearing, Melvin’s
trial

counsel

moved

the

court

to
4

sever

the

offenses

on

the

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grounds that first-degree murder and accessory after the fact
are legally inconsistent. The trial judge acknowledged that the
charges

were

deciding

inconsistent

instead

that

but

the

denied

the

appropriate

motion

way

to

to

sever,

deal

with

inconsistent charges was to set aside one of the judgments in
the event the jury convicted Melvin of both offenses. Melvin’s
trial counsel conceded that this was the correct approach. The
jury

thereafter

judge

set

convicted

aside

Melvin

judgment

on

of

the

both

charges.

accessory

The

after

trial

the

fact

conviction and sentenced Melvin to life without parole.
On

direct

appeal,

the

North

Carolina

Court

of

Appeals

vacated the judgment and ordered a new trial, holding that the
trial court committed plain error by failing to instruct the
jury that it could not convict Melvin of both charges. See State
v. Melvin, 682 S.E.2d 238, 246 (N.C. App. 2009) (“Melvin II”).
The

court

of

appeals

S.E.2d 165, 167
court

of

appeals

concluded

that

State

v.

Speckman,

391

(N.C. 1990), required this instruction. 2 The
found

that

plain

2

error

justified

vacating

In Speckman, the jury convicted the defendant of two
mutually
exclusive
offenses
—
embezzlement
and
obtaining
property by false pretenses. The Supreme Court of North Carolina
held that, although mutually exclusive offenses “may be joined
for trial when they are alleged to arise from the same act or
transaction,” the court “must instruct the jury that it may
convict the defendant only of one of the offenses or the other,
but not of both.” 391 S.E.2d at 167.

5

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Melvin’s convictions because “[i]f properly instructed, the jury
might have determined that [he] was guilty of accessory after
the fact to murder and not guilty of the murder itself.” Melvin
II, 682 S.E.2d at 244.
Thereafter, the Supreme Court of North Carolina reversed
the court of appeals, holding that Melvin did not meet the high
burden under plain error review and that it is a “rare case in
which

an

improper

instruction

will

justify

reversal

of

a

criminal conviction when no objection has been made in the trial
court.” Melvin I, 707 S.E.2d at 633. The court reasoned that the
trial

court

erred,

but

the

error

did

not

justify

vacating

Melvin’s convictions under plain error review because “in light
of the overwhelming evidence of first-degree murder, [it] [could
not] conclude that a different result would have been probable
if the trial court had given a proper instruction.” Id. at 633–
34.
Melvin subsequently filed a Motion for Appropriate Relief
(“MAR”) in state superior court. In his MAR, Melvin alleged that
he received ineffective assistance of counsel when his trial
attorney failed to request the proper jury instruction under
Speckman. 3

Melvin

contended

that

3

his

counsel’s

error

was

Melvin has never contended that, absent counsel’s error,
the evidence was not sufficient to convict him of either
offense.

6

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prejudicial

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because,

had

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counsel

successfully

requested

the

Speckman instruction, the jury would have been forced to choose
between the two charges. If the jury had known they could not
convict Melvin of both offenses, he argued, there would be a
reasonable probability that the jury would have found him guilty
of accessory after the fact but not murder. The superior court
denied the MAR, holding that Melvin had “not shown that his
counsel made errors so serious that he was not functioning as
the

counsel

guaranteed

by

the

Sixth

Amendment

or

that

his

performance fell below an objective standard of reasonableness.”
J.A.

116–117.

The

MAR

court

also

held

that

Melvin

was

not

prejudiced because “[t]here is no reasonable probability that,
if counsel had not committed the errors asserted by [Melvin],
that the trial result would have been different.” Id. at 116.
Melvin then filed a petition for writ of habeas corpus in
federal

court.

holding

that

Strickland
Melvin’s

v.

The
the

district
state

Washington,

ineffective

court

dismissed

superior

court

466

668

U.S.

assistance

of

the

reasonably
(1984),

counsel

petition,
applied

in

rejecting

claim.

Generally

speaking, the court determined that the MAR court was correct in
determining

that

trial

counsel’s

representation

did

not

fall

below an objective standard of reasonableness and that Melvin
was not prejudiced.

7

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III
We review de novo the district court’s application of the
standards of § 2254(d) to the findings and conclusions of the
MAR court. Robinson v. Polk, 438 F.3d 350, 354–55 (4th Cir.
2006). Under this review, our inquiry is limited to an analysis
of

whether

the

MAR

court’s

adjudication

of

Melvin’s

federal

claims “resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,” or
“resulted

in

a

decision

that

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)(1)–(2).
The “contrary to” and “unreasonable application of” clauses
of

§ 2254(d)(1)

have

meanings

which

may

be

satisfied

independently of each other. Williams v. Taylor, 529 U.S. 362,
404–05 (2000). A state court decision is contrary to clearly
established

federal

law

“if

the

state

court

applies

a

rule

different from the governing law set forth in [Supreme Court]
cases, or if it decides a case differently than [the Supreme
Court] on a set of materially indistinguishable facts.” Bell v.
Cone, 535 U.S. 685, 694 (2002). A state court decision is an
unreasonable application of clearly established federal law “if
the

state

principle

court
from

correctly
[Supreme

identifies

Court]
8

the

decisions

governing
but

legal

unreasonably

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applies it to the facts of the particular case.” Id. Under this
standard, a state court’s decision will not be disturbed where
it

is

premised

on

an

incorrect,

but

not

unreasonable,

application of federal law. Williams, 529 U.S. at 440. This “is
a

difficult

to

meet

and

highly

deferential

standard

for

evaluating state-court rulings, which demands that state-court
decisions

be

given

the

benefit

of

the

doubt.”

Cullen

v.

Pinholster, 563 U.S. 170, 171 (2011) (internal punctuation and
citations omitted).
As noted, Melvin contends that he was denied his right to
effective assistance of counsel because his trial counsel was
ineffective in that he failed to request the appropriate jury
instruction. “The essence of an ineffective-assistance claim is
that counsel’s unprofessional errors so upset the adversarial
balance

between

defense

and

prosecution

that

the

trial

was

rendered unfair and the verdict rendered suspect.” Kimmelman v.
Morrison, 477 U.S. 365, 374 (1986). In other words, the “result
of the proceeding [must be] fundamentally unfair or unreliable.”
Lockhart v. Fretwell, 506 U.S. 364, 369 (1993).
In

Strickland,

components

of

an

the

Court

identified

ineffective-assistance

two

claim:

necessary

“First,

the

defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that
counsel

was

not

functioning

as
9

the

‘counsel’

guaranteed

the

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defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable.” 466 U.S. at 687.
For

purposes

of

this

appeal,

the

“pivotal

question

is

whether the state court’s application of the Strickland standard
was

unreasonable.”

(2011).

Under

Harrington

§ 2254(d),

an

v.

Richter,

unreasonable

562

U.S.

application

86,

101

differs

from an incorrect application of federal law, and a state court
“must

be

granted

a

deference

and

latitude

that

are

not

in

operation when the case involves review under the Strickland
standard itself.” Id.
Although
ineffective

Strickland

assistance

to

requires
establish

a

defendant

deficient

claiming

performance

and

prejudice, the Supreme Court explained that “there is no reason
for a court deciding an ineffective assistance claim to . . .
address both components of the inquiry if the defendant makes an
insufficient showing on one,” and “[i]f it is easier to dispose
of an ineffectiveness claim on the ground of lack of sufficient
prejudice, . . . that course should be followed.” 466 U.S. at
697. Consistent with the Court’s suggested approach, we will
proceed directly to the prejudice component.

10

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To establish prejudice under Strickland, a defendant “must
show

that

there

is

a

reasonable

probability

that,

but

for

counsel’s unprofessional errors, the result of the proceeding
would

have

been

different.

A

reasonable

probability

is

a

probability sufficient to undermine confidence in the outcome.”
466

U.S.

at

694.

Under

Strickland,

“[i]t

is

not

enough

for

[Melvin] to show that the errors had some conceivable effect on
the outcome of the proceeding,” id. at 693, and “the question is
not whether a court can be certain counsel’s performance had no
effect on the outcome or whether it is possible a reasonable
doubt might have been established if counsel acted differently,”
Harrington, 562 U.S. at 111. In short, “Strickland asks whether
it is ‘reasonably likely’ the result would have been different,”
and the “likelihood of a different result must be substantial,
not just conceivable.” Id. at 111–12.
Applying this standard of review, we are comfortable that
the MAR court did not unreasonably apply Strickland. The MAR
court weighed the evidence, concluding that the ample evidence
of murder indicated that a properly instructed jury would have
still convicted Melvin of murder. Namely, Melvin was involved in
the original confrontation between the victim and the shooter.
He heard the shooter swear that he would “get” the victim and
then drove the shooter around in their search for him. Melvin
then encouraged the shooter to kill another man in addition to
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the victim so that there would be no witnesses. He drove the
shooter to the scene of the crime, walked up the stairs to the
back door of the residence, and stood outside as Ridges shot the
victim.

The

MAR

court

reiterated

the

North

Carolina

Supreme

Court’s conclusion that “[t]he jury, given the opportunity to
consider separately the offenses of murder and accessory after
the fact, convicted defendant of both, indicating its intent to
hold defendant accountable to the fullest extent of the law.”
Melvin I, 707 S.E.2d at 633–34. J.A. 116. Given that the jury
was properly charged on the elements of murder and convicted
Melvin

based

on

more

than

sufficient

evidence,

the

state

superior court did not unreasonably apply Strickland when it
determined

that

Melvin

was

not

prejudiced

by

his

counsel’s

error. 4

4

Melvin also contends that he was prejudiced by counsel’s
error because it resulted in the application of a more rigorous
appellate standard of review on direct appeal. In North
Carolina, the standard of review is plain error when a party
does not object to an omission from the jury charge. However, if
counsel properly objects and the alleged error does not violate
the defendant’s rights under the United States Constitution, the
defendant
must
only
prove
that
“there
is
a
reasonable
possibility that, had the error in question not been committed,
a different result would have been reached at the trial out of
which the appeal arises.” N.C. Gen. Stat. § 15A-1443(a) (2013)
(emphasis added). Even under the more deferential “reasonable
possibility” standard of review, Melvin was still not prejudiced
by counsel’s error. Given the overwhelming evidence presented at
trial, there is no reasonable possibility that, had counsel
requested the Speckman instruction, Melvin would not have been
convicted of murder.

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IV
“As a condition for obtaining habeas corpus from a federal
court, a state prisoner must show that the state court’s ruling
on the claim being presented in federal court was so lacking in
justification
comprehended

that
in

there

existing

was

an

law

error

beyond

well
any

understood

and

possibility

for

fairminded disagreement.” Harrington, 562 U.S. at 103. We hold
that

Melvin

has

fallen

well

short

of

meeting

this

standard.

Therefore, we affirm the district court’s dismissal of Melvin’s
petition for writ of habeas corpus.
AFFIRMED

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