Jose Hernandez v. Warden McFadden

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:15-cv-01002-MGL Copies to all parties and the district court/agency. [1000113830]. Mailed to: J Hernandez. [16-6322]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6322

JOSE LUIS GUTIERREZ HERNANDEZ,
Petitioner - Appellant,
v.
WARDEN MCFADDEN,
Respondent - Appellee.

Appeal from the United States District Court for the District of
South Carolina, at Florence.
Mary G. Lewis, District Judge.
(4:15-cv-01002-MGL)

Submitted:

February 9, 2017

Decided:

July 7, 2017

Before GREGORY, Chief Judge, and TRAXLER and KEENAN, Circuit
Judges.

Affirmed in part; dismissed in part by unpublished per curiam
opinion.

Jose Luis
Zelenka,
Scrantom,
Columbia,

Gutierrez Hernandez, Appellant Pro Se.
Donald John
Senior
Assistant
Attorney
General,
Caroline
M.
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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
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
that

the

trial

court

erred

instruction on character.

in

giving

an

incomplete

jury

We now affirm in part and dismiss in

part.
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).
adjudicates

a

§ 2254

petitioner’s

claim

If a state court

on

the

merits,

the

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.
28

U.S.C.

§ 2254(d).

Because

the

Supreme

Court

of

South

Carolina summarily refused Hernandez’s appeal of his ineffective
assistance of appellate counsel claim, we evaluate the trial
court’s

decision

on

postconviction relief.

Hernandez’s

state

application

Grueninger, 813 F.3d at 525.
2

for

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To
federal

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establish
law,

a

that

a

petitioner

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state
must

court

unreasonably

demonstrate

“that

applied

the

state

court’s ruling on the claim being presented in federal court was
so

lacking

understood
possibility

in

justification

and

that

comprehended

for

fairminded

in

there

was

existing

law

disagreement.”

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

an

error

well

beyond

any

Harrington

v.

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).

Strickland

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
claim

was

not

an

unreasonable

application

of

the

Strickland

standard.
Accordingly, we affirm the portion of the district court’s
order

relating

to

the

character

instruction.

We

deny

a

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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