Jose Hernandez v. Warden McFadden , 701 F. App'x 195 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-6322
JOSE LUIS GUTIERREZ HERNANDEZ,
Petitioner - Appellant,
v.
WARDEN MCFADDEN,
Respondent - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Mary G. Lewis, District Judge.
(4:15-cv-01002-MGL)
Submitted: February 9, 2017 Decided: July 7, 2017
Before GREGORY, Chief Judge, and TRAXLER and KEENAN, Circuit
Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Jose Luis Gutierrez Hernandez, Appellant Pro Se. Donald John
Zelenka, Senior Assistant Attorney General, Caroline M.
Scrantom, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Luis Gutierrez Hernandez appeals the district court’s
order adopting the magistrate judge’s recommendation and denying
relief on his 28 U.S.C. § 2254 (2012) petition. We granted a
partial certificate of appealability on the issue of whether
appellate counsel was ineffective in failing to argue on appeal
that the trial court erred in giving an incomplete jury
instruction on character. We now affirm in part and dismiss in
part.
We review de novo the district court’s decision denying
Hernandez’s § 2254 petition. Grueninger v. Dir., Va. Dep’t of
Corr., 813 F.3d 517, 523 (4th Cir. 2016). If a state court
adjudicates a § 2254 petitioner’s claim on the merits, the
petition may only be granted if the adjudication
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that 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). Because the Supreme Court of South
Carolina summarily refused Hernandez’s appeal of his ineffective
assistance of appellate counsel claim, we evaluate the trial
court’s decision on Hernandez’s state application for
postconviction relief. Grueninger, 813 F.3d at 525.
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To establish that a state court unreasonably applied
federal law, a petitioner must demonstrate “that the state
court’s ruling on the claim 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). Under this standard, “even a
strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Id. at 102.
To demonstrate ineffective assistance of counsel, Hernandez
“must show that counsel’s performance was deficient” and “that
the deficient performance prejudiced the defense.” Strickland
v. Washington, 466 U.S. 668, 687 (1984). We conclude that the
district court did not err in holding that the state court’s
ruling that Hernandez failed to demonstrate prejudice on his
claim was not an unreasonable application of the Strickland
standard.
Accordingly, we affirm the portion of the district court’s
order relating to the character instruction. We deny a
certificate of appealability as to Hernandez’s remaining claims
and dismiss that portion of the appeal. We dispense with oral
argument because the facts and legal contentions are adequately
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presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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