UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-6424

JAMES GUNNELLS, a/k/a James Allen Gunnells,

Petitioner - Appellant,

v.

LARRY CARTLEDGE, Warden, Perry Correctional Institution,

Respondent - Appellee.

Appeal from the United States District Court for the District of 

South Carolina, at Anderson. Mary G. Lewis, District Judge. 

(8:15-cv-01142-MGL)

Submitted: September 30, 2016 Decided: October 12, 2016

Before KING, DUNCAN, and WYNN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Jeremy A. Thompson, LAW OFFICE OF JEREMY A. THOMPSON, LLC, 

Columbia, South Carolina, for Appellant. Donald John Zelenka, 

Senior Assistant Attorney General, James Anthony Mabry, Assistant 

Attorney General, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

James Gunnells seeks to appeal the district court’s order 

accepting the recommendation of the magistrate judge and denying 

relief on his 28 U.S.C. § 2254 (2012) petition. The order is not 

appealable unless a circuit justice or judge issues a certificate 

of 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).

Gunnells contends that the district court erred in ruling 

that a victim’s identification of Gunnells was admissible. 

Specifically, Gunnells argues that the district court should have 

explicitly weighed the factors in Neil v. Biggers, 409 U.S. 188 

(1972), which applies to out-of-court identifications, in 

determining whether the victim’s in-court identification of 

Gunnells was admissible, and that the district court’s failure to 

conduct any substantive inquiry was erroneous.

We conclude, however, that the proper inquiry is not whether 

the district court should have explicitly evaluated the Biggers
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factors, but instead whether Biggers applies at all. We have 

previously held that a state court’s unreasonable refusal to extend 

Supreme Court precedent could constitute an “unreasonable 

application” of Supreme Court precedent under § 2254(d)(1). 

Green v. French, 143 F.3d 865, 870 (4th Cir. 1998). However, the 

Supreme Court has since abrogated Green by rejecting the principle 

that a state court could be unreasonable in refusing to extend 

Supreme Court precedent. White v. Woodall, 134 S. Ct. 1697, 1706 

(2014).

As Gunnells noted in his response to the State’s motion for 

summary judgment and in his objections to the magistrate judge’s 

report and recommendation, the Supreme Court of South Carolina has 

“conclude[d], as the majority of courts have, that Neil v. Biggers

does not apply to in-court identifications and that the remedy for 

any alleged suggestiveness of an in-court identification is crossexamination and argument.” State v. Lewis, 609 S.E.2d 515, 518 

(S.C. 2005). This refusal to extend Biggers to in-court 

identifications forecloses Gunnells’ argument on federal habeas 

review that Biggers applies to his case.*

 * Gunnells notes that we have in at least one instance extended 

Biggers to an in-court identification. See United States v. 

Murray, 65 F.3d 1161, 1169 & n.6 (4th Cir. 1995). However, Murray

involved a direct appeal of a federal conviction. In the § 2254 

context, a state court’s decision must be analyzed with respect to 

Supreme Court precedent, not Fourth Circuit precedent. See White, 

134 S. Ct. at 1702.
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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