UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7611
DEREK J. BROWN,
Petitioner - Appellant,
v.
WARDEN OF PERRY CORRECTIONAL INSTITUTION,
Respondent - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Timothy M. Cain, District Judge.
(0:12-cv-02988-TMC)
Submitted: March 31, 2015 Decided: April 7, 2015
Before KING, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Derek J. Brown, Appellant Pro Se. Donald John Zelenka, Senior
Assistant Attorney General, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derek J. Brown, a state inmate, filed a 28 U.S.C. § 2254
(2012) petition raising multiple claims. The magistrate judge
recommended denying a certificate of appealability and
dismissing the petition. The district court, however, granted a
certificate of appealability on one claim, namely, whether
appellate counsel was ineffective for failing to challenge on
direct appeal the trial court’s denial of a mistrial based on
improper comments made by the prosecutor during closing argument
regarding Brown’s decision not to testify.
Brown is entitled to habeas relief on a claim adjudicated
“on the merits” by a state court only if the state court’s
disposition of that claim “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court,” or “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);
Barnes v. Joyner, 751 F.3d 229, 238 (4th Cir. 2014). Clearly
established federal law “refers to the holdings, as opposed to
the dicta, of [the Supreme] Court’s decisions as of the time of
the relevant state-court decision.” Williams v. Taylor, 529
U.S. 362, 412 (2000). Brown may not obtain habeas relief unless
he demonstrates “that the state court’s ruling on the claim
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being presented in federal court was so lacking in justification
that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
Before a federal court grants habeas relief, it must conclude
that the constitutional error had a “substantial and injurious
effect or influence in determining the jury’s verdict.” Barnes,
751 F.3d at 239 (citation and internal quotation marks omitted).
Factual findings by the state court are presumed correct, and
Brown bears the burden to rebut the presumption by clear and
convincing evidence. See 28 U.S.C. § 2254(e)(1); Tucker v.
Ozmint, 350 F.3d 433, 439 (4th Cir. 2003).
In light of this standard, we conclude that the district
court did not err in concluding that the state post-conviction
court did not unreasonably apply clearly established federal law
in determining that the prosecutor’s comments did not so infect
the trial with unfairness as to make the resulting conviction a
denial of due process and, therefore, appellate counsel was not
constitutionally ineffective in failing to raise the issue on
direct appeal. Accordingly, we affirm for the reasons stated by
the district court. Brown v. Warden, No. 0:12-cv-02988-TMC
(D.S.C. Sept. 25, 2014). We dispense with oral argument because
the facts and legal contentions are adequately presented in the
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materials before this court and argument would not aid the
decisional process.
AFFIRMED
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