Jeremy Phillips v. Scott Lewi

Filing

UNPUBLISHED PER CURIAM OPINION filed.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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UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

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appealability.

28

certificate

of

appealability

substantial

showing

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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
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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

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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

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reject

both

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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

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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

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Amendment,

however,

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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
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evening

of

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the

fire

away

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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