Derrick Harper v. Robert Jones

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7819
DERRICK MONTRIAL HARPER,
Petitioner - Appellant,
v.
ROBERT JONES,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:11-hc-02074-F)
Submitted: September 30, 2013 Decided: October 18, 2013
Before SHEDD, DUNCAN, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark Everette Edwards, EDWARDS & TRENKLE, PLLC, Durham, North
Carolina, for Appellant. Roy Cooper, Attorney General, Clarence
Joe DelForge, III, Assistant Attorney General, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derrick Montrial Harper, a North Carolina state
prisoner, appeals the district court’s order dismissing his 28
U.S.C. § 2254 (2006) petition claiming ineffective assistance of
trial counsel. Harper, convicted of murdering Anthony Williams
and Donald Hines during a brawl in the parking lot of a night
club, argues that counsel was ineffective for not further
investigating or presenting evidence that two other individuals,
Terrell Cherry and Terry Andrews, may have been involved in the
crimes. Finding no error, we affirm.
Because a certificate of appealability was granted as
to this claim, our review is de novo. Bell v. Ozmint, 332 F.3d
229, 233 (4th Cir. 2003). A federal court may grant an
application for habeas relief on a claim that has been
adjudicated on the merits in state court only if that
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). The state court’s denial of relief on
Harper’s claim of ineffective assistance should not be
overturned unless Harper establishes that “there is no
possibility fairminded jurists could disagree that the state
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court’s decision conflicts with [Supreme Court] precedents.”
Harrington v. Richter, 131 S. Ct. 770, 786 (2011).
To establish ineffective assistance of counsel, Harper
must demonstrate that counsel’s performance fell below an
objective standard of reasonableness and that the performance
was prejudicial. Strickland v. Washington, 466 U.S. 668, 687
(1984). Harper must overcome “a strong presumption that
counsel’s representation was within the wide range of reasonable
professional assistance” and establish “that counsel made errors
so serious that counsel was not functioning as the counsel
guaranteed [him] by the Sixth Amendment.” Harrington, 131 S.
Ct. at 787 (internal quotation marks omitted). To establish
prejudice, Harper must show “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at
694. After a thorough review of the record, we conclude that
the state habeas court did not unreasonably determine that
Harper’s claim meets neither the deficient performance nor the
prejudice prong of Strickland.
First, Harper’s counsel sensibly chose not to present
the testimony of two witnesses who claimed that Cherry confessed
to them his involvement in Williams’ and Hines’ murders.
Counsel fairly regarded the alleged confession as potentially
damaging to his credibility with the jury and Harper’s defense
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given the substantial irreconcilability of the confession with
the physical evidence recovered from the crime scene and the
testimony of four eyewitnesses to the murders. United States v.
Terry, 366 F.3d 312, 318 (4th Cir. 2004).
Similarly, we conclude that the state habeas court
reasonably determined that Harper’s counsel did not render
deficient assistance by failing to further investigate the
possibility of defending Harper on the theory that Cherry or
Andrews shot Williams or Hines. Given the inherent conflicts of
Cherry’s purported confession with the rest of the evidence that
would be presented at trial, Harper’s counsel could have
reasonably concluded that further investigation into the matter
would almost surely have been in vain and that his resources
were better spent combatting the four eyewitnesses who
inculpated Harper. Elmore v. Ozmint, 661 F.3d 783, 857 (4th
Cir. 2011); Emmett v. Kelly, 474 F.3d 154, 161 (4th Cir. 2007).
Finally, we conclude that Harper has not shown a
substantial likelihood he would have prevailed at trial but for
his counsel’s alleged deficiencies. * Elmore, 661 F.3d at 869-70.
Harper can point to no evidence that his counsel had or might
*
Although Harper hypothesizes on appeal regarding what
additional evidence counsel’s further investigation might have
uncovered, he presented no such evidence to the state habeas
court. Accordingly, his speculation has no bearing on our
analysis. Elmore, 661 F.3d at 866-68.
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have discovered that could have reconciled the contradictions
between Cherry’s supposed confession and the other evidence at
trial. Although certain evidence would have confirmed static
portions of Cherry’s claimed admission and also suggested that
Andrews had a motive to harm Williams, there is no reasonable
likelihood that such substantiation would have overcome the fact
that the eyewitnesses and physical evidence all refuted a
conclusion that either Cherry or Andrews played any role in the
murders. Reinforcing this conclusion is the fact that, had they
testified, one witness to Cherry’s professed confession would
have admitted that she believed Cherry was lying to impress a
woman, while the other witness would have admitted to being
extremely intoxicated at the time.
Accordingly, we affirm the dismissal of Harper’s 28
U.S.C. § 2254 petition. 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.
AFFIRMED
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