James Gunnells v. Larry Cartledge

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:15-cv-01142-MGL Copies to all parties and the district court/agency. [999945392].. [16-6424]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6424

JAMES GUNNELLS, a/k/a James Allen Gunnells,
Petitioner - Appellant,
v.
LARRY CARTLEDGE, Warden, Perry Correctional Institution,
Respondent - Appellee.

Appeal from the United States District Court for the District of
South Carolina, at Anderson.
Mary G. Lewis, District Judge.
(8:15-cv-01142-MGL)

Submitted:

September 30, 2016

Decided:

October 12, 2016

Before KING, DUNCAN, and WYNN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Jeremy A. Thompson, LAW OFFICE OF JEREMY A. THOMPSON, LLC,
Columbia, South Carolina, for Appellant.
Donald John Zelenka,
Senior Assistant Attorney General, James Anthony Mabry, Assistant
Attorney General, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
James Gunnells seeks to appeal the district court’s order
accepting the recommendation of the magistrate judge and denying
relief on his 28 U.S.C. § 2254 (2012) petition.

The order is not

appealable unless a circuit justice or judge issues a certificate
of appealability. 28 U.S.C. § 2253(c)(1)(A) (2012). A certificate
of appealability will not issue absent “a substantial showing of
the denial of a constitutional right.”
(2012).

28 U.S.C. § 2253(c)(2)

When the district court denies relief on the merits, a

prisoner satisfies this standard by demonstrating that reasonable
jurists would find that the district court’s assessment of the
constitutional claims is debatable or wrong.

Slack v. McDaniel,

529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322,
336-38 (2003).
Gunnells contends that the district court erred in ruling
that

a

victim’s

identification

of

Gunnells

was

admissible.

Specifically, Gunnells argues that the district court should have
explicitly weighed the factors in Neil v. Biggers, 409 U.S. 188
(1972),

which

determining

applies

whether

the

to

out-of-court

victim’s

identifications,

in-court

identification

in
of

Gunnells was admissible, and that the district court’s failure to
conduct any substantive inquiry was erroneous.
We conclude, however, that the proper inquiry is not whether
the district court should have explicitly evaluated the Biggers
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factors, but instead whether Biggers applies at all.

We have

previously held that a state court’s unreasonable refusal to extend
Supreme

Court

application”

of

precedent

could

Supreme

Court

constitute
precedent

an

“unreasonable

under

§ 2254(d)(1).

Green v. French, 143 F.3d 865, 870 (4th Cir. 1998).

However, the

Supreme Court has since abrogated Green by rejecting the principle
that a state court could be unreasonable in refusing to extend
Supreme Court precedent.

White v. Woodall, 134 S. Ct. 1697, 1706

(2014).
As Gunnells noted in his response to the State’s motion for
summary judgment and in his objections to the magistrate judge’s
report and recommendation, the Supreme Court of South Carolina has
“conclude[d], as the majority of courts have, that Neil v. Biggers
does not apply to in-court identifications and that the remedy for
any alleged suggestiveness of an in-court identification is crossexamination and argument.”
(S.C.

2005).

This

State v. Lewis, 609 S.E.2d 515, 518

refusal

to

extend

Biggers

to

in-court

identifications forecloses Gunnells’ argument on federal habeas
review that Biggers applies to his case. *

*

Gunnells notes that we have in at least one instance extended
Biggers to an in-court identification.
See United States v.
Murray, 65 F.3d 1161, 1169 & n.6 (4th Cir. 1995). However, Murray
involved a direct appeal of a federal conviction. In the § 2254
context, a state court’s decision must be analyzed with respect to
Supreme Court precedent, not Fourth Circuit precedent. See White,
134 S. Ct. at 1702.
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Accordingly,

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we

dismiss the appeal.
facts

and

materials

legal
before

deny

a

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certificate

of

appealability

and

We dispense with oral argument because the

contentions

are

adequately

this

and

argument

court

presented

would

not

in

the

aid

the

decisional process.
DISMISSED

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