Jose Hernandez v. Warden McFadden
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:15-cv-01002-MGL Copies to all parties and the district court/agency. . Mailed to: J Hernandez. [16-6322]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOSE LUIS GUTIERREZ HERNANDEZ,
Petitioner - Appellant,
Respondent - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Florence.
Mary G. Lewis, District Judge.
February 9, 2017
July 7, 2017
Before GREGORY, Chief Judge, and TRAXLER and KEENAN, Circuit
Affirmed in part; dismissed in part by unpublished per curiam
Gutierrez Hernandez, Appellant Pro Se.
OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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Jose Luis Gutierrez Hernandez appeals the district court’s
order adopting the magistrate judge’s recommendation and denying
relief on his 28 U.S.C. § 2254 (2012) petition.
We granted a
partial certificate of appealability on the issue of whether
appellate counsel was ineffective in failing to argue on appeal
instruction on character.
We now affirm in part and dismiss in
We review de novo the district court’s decision denying
Hernandez’s § 2254 petition.
Grueninger v. Dir., Va. Dep’t of
Corr., 813 F.3d 517, 523 (4th Cir. 2016).
If a state court
petition may only be granted if the adjudication
(1) 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
(2) 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.
Carolina summarily refused Hernandez’s appeal of his ineffective
assistance of appellate counsel claim, we evaluate the trial
Grueninger, 813 F.3d at 525.
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court’s ruling on the claim being presented in federal court was
Richter, 562 U.S. 86, 103 (2011).
Under this standard, “even a
strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.”
Id. at 102.
To demonstrate ineffective assistance of counsel, Hernandez
“must show that counsel’s performance was deficient” and “that
the deficient performance prejudiced the defense.”
v. Washington, 466 U.S. 668, 687 (1984).
We conclude that the
district court did not err in holding that the state court’s
ruling that Hernandez failed to demonstrate prejudice on his
Accordingly, we affirm the portion of the district court’s
certificate of appealability as to Hernandez’s remaining claims
and dismiss that portion of the appeal.
We dispense with oral
argument because the facts and legal contentions are adequately
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presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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