UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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 found in Phillips’ trailer. Accepting the
recommendation of the magistrate judge, the district court
ruled that Phillips procedurally defaulted on his claim
regarding the physical evidence and denied relief for the
remaining ineffective assistance claims.
Phillips now seeks a certificate of appealability granting
him permission to appeal the district court’s rulings on
procedural default and ineffective assistance of counsel. For
the following reasons, we deny a certificate of appealability
and dismiss the appeal.
A final order in a § 2254 proceeding is not appealable
unless a circuit justice or judge issues a certificate of
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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.” 28 U.S.C. § 2253(c)(2) (2012). 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).
When the district court denies relief on procedural
grounds, the prisoner must demonstrate both that the
dispositive procedural ruling is debatable, and that the
petition states a debatable claim of the denial of a
constitutional right. Slack, 529 U.S. at 484-85.
Under this standard, we begin with Phillips’ request to
appeal the district court’s ruling on procedural default.
Procedural default occurs if a petitioner “fails to exhaust
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[] will result in a fundamental miscarriage of
justice.” 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 that finding. The discussion section of the
certiorari petition did not mention showing Phillips the
physical evidence or refer to the towel soaked with Roman’s
blood. Although the petition argued that trial counsel did not
discuss trial strategy with Phillips, that argument concerned
counsel’s strategy for Willis’ admissions of guilt, not the
physical evidence. 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. See S.C. Code Ann.
§ 17-27-90 (2014). Phillips does not argue cause and prejudice
or a fundamental miscarriage of justice, and the record does not
reveal any basis for Phillips to overcome his procedural
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default. 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, which stem from counsel’s strategy for Willis’
admissions of guilt. To prove ineffective assistance of
counsel, a petitioner must show: (1) “that counsel’s
performance was deficient,” and (2) “that the deficient
performance prejudiced the defense.” Strickland v. Washington,
466 U.S. 668, 687 (1984). A 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.” Id. at 689 (internal quotation marks
omitted). Prejudice requires “a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” 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 were willing to testify that Willis admitted to
killing Roman. Alternatively, Phillips argues that trial
counsel’s strategy was unreasonable.
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We reject both arguments. First, the district court
deferred to the state postconviction court’s finding that trial
counsel credibly testified about his strategy. A federal habeas
court cannot overturn a state court’s credibility judgments
absent “stark and clear” error. Cagle v. Branker, 520 F.3d 320,
324 (4th Cir. 2008) (citing 28 U.S.C. § 2254(e)(1)). “Indeed,
‘federal habeas courts [have] no license to 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 to Phillips, trial
counsel did pursue such a defense. 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, however, came before he researched the third-party
guilt defense. Moreover, while trial counsel attempted to
introduce Willis’ written statement, even arguing that it showed
third-party guilt, that single, ill-fated attempt does not
evidence an entire trial strategy. 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. Phillips
argues that it could not have been reasonable 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. Avoiding that risk was sound trial strategy.
Phillips has also not shown that trial counsel
misunderstood the third-party guilt defense. Trial counsel and
Phillips similarly described the defense, and contrary to
Phillips’ assertion, trial counsel considered more 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 that
Willis had admitted setting the fire that killed Roman. “The
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Sixth Amendment, however, 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 reasonable when counsel did not call
witnesses who would inculpate defendant’s codefendant because
counsel could review the witnesses’ testimony from the
codefendant’s trial); see also Strickland, 466 U.S. at 690-91
(“[S]trategic choices made after less than complete
investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on
investigation.”). Here, before trial, counsel had 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 conclude that Phillips has not established
prejudice. 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 the fire away from Willis and Roman. Moreover,
Willis’ statements taking sole responsibility would have lacked
credibility if admitted because Willis made several conflicting
statements. Thus, Phillips has not shown that had trial counsel
pursued a third-party guilt defense, the jury would have
returned a verdict of not guilty. See id. at 687.
In sum, our review of the record shows that Phillips has
not made the requisite showing for a certificate of
appealability. Accordingly, we deny a certificate of
appealability and dismiss the 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
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