Jeremy Phillips v. Scott Lewi


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 6:15-cv-02458-HMH Copies to all parties and the district court/agency. [1000053044]. Mailed to: Jeremy Phillips. [16-7284]

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Appeal: 16-7284 Doc: 15 Filed: 03/31/2017 Pg: 1 of 9 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-7284 JEREMY R. PHILLIPS, Petitioner - Appellant, v. SCOTT LEWIS, Warden, Respondent - Appellee. Appeal from the United States District Court for the District of South Carolina, at Greenville. Henry M. Herlong, Jr., Senior District Judge. (6:15-cv-02458-HMH) Submitted: February 1, 2017 Decided: March 31, 2017 Before NIEMEYER, DUNCAN, and DIAZ, Circuit Judges. Dismissed by unpublished per curiam opinion. Allen Mattison Bogan, Blake Terence Williams, NELSON MULLINS RILEY & SCARBOROUGH, LLP, Columbia, South Carolina, for Appellant. Donald John Zelenka, Senior Assistant Attorney General, Alphonso Simon, Jr., Assistant Attorney General, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 16-7284 Doc: 15 Filed: 03/31/2017 Pg: 2 of 9 PER CURIAM: Jeremy R. Phillips, a South Carolina prisoner, filed a 28 U.S.C. § 2254 (2012) petition challenging his convictions for the murder of Juan Roman and arson of Roman’s trailer. Phillips asserted that his codefendant, Jesse Willis, beat Roman and set the fire that caused Roman’s death, and that Phillips’ trial counsel was constitutionally ineffective for failing to pursue a third-party guilt defense by researching the defense, investigating Willis’ admissions of guilt, and calling witnesses to testify about those admissions. Phillips also argued that his trial counsel was ineffective for failing to review physical evidence with Phillips before trial, including a towel soaked in Roman’s blood recommendation ruled that regarding found of in the Phillips the physical Phillips’ magistrate judge, procedurally evidence trailer. Accepting the defaulted and denied the district court on claim his relief for the remaining ineffective assistance claims. Phillips now seeks a certificate of appealability granting him permission to appeal the district court’s rulings procedural default and ineffective assistance of counsel. on For the following reasons, we deny a certificate of appealability and dismiss the appeal. A final order in a § 2254 proceeding is unless a circuit justice or judge 2 issues a not appealable certificate of Appeal: 16-7284 Doc: 15 Filed: 03/31/2017 appealability. 28 certificate of appealability substantial showing Pg: 3 of 9 right.” 28 U.S.C. court denies this standard find of § 2253(c)(1)(A) will the denial § 2253(c)(2) relief that on the not A absent “a issue of a (2012). merits, (2012). constitutional When a the prisoner district satisfies by demonstrating that reasonable jurists would the constitutional McDaniel, U.S.C. district claims 529 court’s is U.S. debatable 473, 484 assessment or of wrong. (2000); see the Slack v. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When grounds, the the dispositive petition district court denies prisoner must demonstrate procedural states a ruling is debatable constitutional right. relief of procedural both debatable, claim on the that and the that denial of the a Slack, 529 U.S. at 484-85. Under this standard, we begin with Phillips’ request to appeal the Procedural district default court’s occurs if ruling a on petitioner procedural default. “fails exhaust to available state remedies and ‘the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.’” Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998) (quoting Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991)). To exhaust state remedies, a petitioner must fairly present the 3 Appeal: 16-7284 Doc: 15 Filed: 03/31/2017 Pg: 4 of 9 substance of a claim to the state’s highest court. Id. A petitioner may overcome a procedural default by showing either “cause for the default and actual prejudice as a result of the alleged violation of federal law” or “that failure to consider the claim[] justice.” will result in a fundamental miscarriage of Coleman, 501 U.S. at 750. The district court accepted the magistrate judge’s finding that Phillips’ state certiorari petition did not discuss his claim that counsel failed to review physical evidence with him. We agree with certiorari physical blood. that finding. petition evidence did or The not refer discussion mention to the section showing towel of Phillips soaked with the the Roman’s Although the petition argued that trial counsel did not discuss trial strategy with Phillips, that argument concerned counsel’s strategy physical evidence. for Willis’ admissions of guilt, not the Because the certiorari petition cannot be read to encompass the claim, Phillips failed to fairly present it to South Carolina’s highest state court. The South Carolina Supreme Court has denied the certiorari petition, and Phillips cannot now raise the claim in state court. § 17-27-90 (2014). See S.C. Code Ann. Phillips does not argue cause and prejudice or a fundamental miscarriage of justice, and the record does not reveal any basis for Phillips 4 to overcome his procedural Appeal: 16-7284 Doc: 15 default. Filed: 03/31/2017 Pg: 5 of 9 Thus, the district court did not err in its ruling on procedural default. Next, we reject Phillips’ request for a certificate of appealability for his remaining claims of ineffective assistance of counsel, admissions counsel, which of a stem from guilt. To petitioner performance was counsel’s prove must deficient,” ineffective show: and U.S. 668, 687 (1984). (1) (2) performance prejudiced the defense.” 466 A strategy for Willis’ assistance of “that “that counsel’s the deficient Strickland v. Washington, petitioner proves deficient performance by showing that “counsel’s representation fell below an objective standard of reasonableness.” Id. at 688-89. Courts presume attorneys engage in reasonable conduct and rely on “sound trial strategy.” omitted). but for Id. at 689 (internal quotation marks Prejudice requires “a reasonable probability that, counsel’s unprofessional errors, proceeding would have been different.” the result of the Id. at 687. Regarding deficient performance, Phillips argues that the district court should not have accepted trial counsel’s claim that he strategically declined to investigate or call Willis or inmates who killing were Roman. willing to testify Alternatively, that Willis Phillips argues counsel’s strategy was unreasonable. 5 admitted that to trial Appeal: 16-7284 Doc: 15 We Filed: 03/31/2017 reject both Pg: 6 of 9 arguments. First, the district court deferred to the state postconviction court’s finding that trial counsel credibly testified about his strategy. court cannot overturn a state absent “stark and clear” error. court’s A federal habeas credibility judgments Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008) (citing 28 U.S.C. § 2254(e)(1)). ‘federal habeas courts [have] no license to “Indeed, redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them.’” Id. (quoting Marshall v. Lonberger, 459 U.S. 422, 434 (1983)). Phillips argues that the state court committed a stark and clear error because it could not have believed that trial counsel strategically declined to pursue witnesses with evidence of a third party’s guilt when, according counsel did pursue such a defense. to Phillips, trial For example, trial counsel moved for a continuance in part to contact the inmates, and he attempted to introduce Willis’ signed admission at trial. Trial counsel’s pretrial attempts to pursue a third-party strategy, guilt however, defense. came before Moreover, he researched while trial the counsel third-party attempted to introduce Willis’ written statement, even arguing that it showed third-party guilt, that single, ill-fated evidence an entire trial strategy. 6 attempt does not Thus, those facts do not Appeal: 16-7284 Doc: 15 Filed: 03/31/2017 Pg: 7 of 9 show a stark and clear error in the state court’s credibility findings. See Cagle, 520 F.3d at 324. Second, trial counsel’s strategy was reasonable. argues that it could not have been reasonable Phillips because it resulted from a misunderstanding of hearsay and the third-party guilt defense and a lack of investigation. Phillips’ argument regarding hearsay presumes that, if counsel had called Willis to testify, Willis would have invoked his Fifth Amendment privilege against self-incrimination, thereby permitting counsel to admit Willis’ out-of-court admissions of guilt. However, as the district court recognized, Willis could have elected to testify against Phillips. Phillips Avoiding that risk was sound trial strategy. has also not shown that trial counsel misunderstood the third-party guilt defense. Trial counsel and Phillips and Phillips’ similarly described assertion, trial the counsel defense, considered contrary more to than the strength of the state’s case when he rejected the defense. He also considered the potentially fatal weaknesses of Phillips’ third-party guilt evidence, which included Willis’ conflicting statements that sometimes supported the State’s case. Finally, Phillips claims that trial counsel could not have reasonably decided to forgo a third-party guilt defense without investigating the inmates who were willing to testify Willis had admitted setting the fire that killed Roman. 7 that “The Appeal: 16-7284 Sixth Doc: 15 Filed: 03/31/2017 Amendment, however, Pg: 8 of 9 does not always compel counsel to undertake interviews and meetings with potential witnesses where counsel is familiar with the substance of their testimony.” Huffington v. Nuth, 140 F.3d 572, 580 (4th Cir. 1998) (finding counsel’s performance witnesses who counsel would could reasonable inculpate review the when counsel defendant’s witnesses’ did not codefendant testimony call because from the codefendant’s trial); see also Strickland, 466 U.S. at 690-91 (“[S]trategic choices investigation reasonable are reasonable professional investigation.”). made after less precisely to judgments Here, before support trial, than the the complete extent that limitations counsel had on received Willis’ signed admission and at least two letters from inmates describing Willis’ admissions of guilt. Counsel therefore knew what the witnesses would have testified to, and after assessing the statements and reviewing the law, he reasonably decided not to pursue further investigation. Thus, Phillips has failed to rebut the presumption of reasonableness afforded to counsel’s conduct. See Strickland, 466 U.S. at 689. Accordingly, Phillips has not established deficient performance. We also prejudice. conclude that Phillips has not established At trial, three witnesses indicated that Phillips either lit the fire that killed Roman or was at least involved in Roman’s death despite Phillips’ insistence that he spent the 8 Appeal: 16-7284 Doc: 15 evening of Filed: 03/31/2017 the fire away Pg: 9 of 9 from Willis and Roman. Moreover, Willis’ statements taking sole responsibility would have lacked credibility if admitted because Willis made several conflicting statements. pursued a Thus, Phillips has not shown that had trial counsel third-party guilt defense, returned a verdict of not guilty. the jury would have See id. at 687. In sum, our review of the record shows that Phillips has not made the appealability. appealability requisite showing Accordingly, and dismiss we the for a certificate of deny a certificate of appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 9

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