UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

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 
3

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 
4

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.
5

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