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UNPUBLISHED PER CURIAM OPINION filed.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. [1000113830]. Mailed to: J Hernandez. [16-6322]

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Appeal: 16-6322 Doc: 14 Filed: 07/07/2017 Pg: 1 of 4 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-6322 JOSE LUIS GUTIERREZ HERNANDEZ, Petitioner - Appellant, v. WARDEN MCFADDEN, Respondent -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 Affirmed in part; dismissed in part by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. Appeal: 16-6322 Doc: 14 Filed: 07/07/2017 Pg: 2 of 4 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 Appeal: 16-6322 Doc: 14 To federal Filed: 07/07/2017 establish law, a that a petitioner Pg: 3 of 4 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 3 Appeal: 16-6322 Doc: 14 Filed: 07/07/2017 Pg: 4 of 4 presented in the materials before this court and argument would not aid the decisional process. AFFIRMED IN PART; DISMISSED IN PART 4

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