UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
2

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 
3

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
4

materials before this court and argument would not aid the 

decisional process.

AFFIRMED