Jihad Melvin v. Frank Perry , 664 F. App'x 281 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6467
JIHAD RASHID MELVIN,
Petitioner – Appellant,
v.
FRANK L. PERRY; FELIX TAYLOR,
Respondents – Appellees.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:13-hc-02269-F)
Argued: September 21, 2016 Decided: October 25, 2016
Before KING, SHEDD, and THACKER, Circuit Judges.
Affirmed by unpublished opinion. Judge Shedd wrote the opinion,
in which Judge King and Judge Thacker joined.
ARGUED: Mary Elizabeth McNeill, NORTH CAROLINA PRISONER LEGAL
SERVICES, INC., Raleigh, North Carolina, for Appellant.
Clarence Joe DelForge, III, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellee. ON BRIEF: Roy
Cooper, Attorney General of the State of North Carolina, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
SHEDD, Circuit Judge:
Jihad Melvin appeals the denial of his federal habeas
petition pursuant to 28 U.S.C. § 2254. For the following
reasons, we affirm.
I
A North Carolina Jury convicted Melvin of first-degree
murder and accessory after the fact to murder. The Supreme Court
of North Carolina affirmed Melvin’s conviction. In doing so, the
court summarized the facts pertaining to the underlying crimes. 1
“At trial, the State presented evidence that, at
approximately 11:00 am on 21 March 2007, Melvin drove Robert
Ridges (Ridges) and Tony Cole (Cole) to the home of Ridges’
brother, Elijah. As Ridges, Cole, and Melvin were driving away
after the visit, they spotted the victim, Almario Millander.
They waved the victim over to their car, and Ridges sold him a
quantity of what was purported to be crack cocaine. As they
attempted to leave, however, the car stalled. The victim walked
over to the immobilized car, claimed Ridges had sold him
counterfeit crack, and demanded his money back. When Ridges
denied the accusation, the victim pulled out a sawed-off shotgun
and pointed it at Ridges, who was unarmed. Melvin was able to
1In this summary, we have substituted “Melvin” for
“defendant.”
2
restart the car and drive away with Ridges and Cole without
shots being fired.
“In the aftermath of the encounter, an angry Ridges ‘swore
on his son’ that he was going to ‘get’ the victim. Ridges left
Cole and Melvin for a time, then returned. As the three later
‘chilled’ and smoked ‘weed’ at a friend’s house, Cole realized
that Ridges had obtained a gun when he saw Ridges ‘pull[] it
out’ in Melvin’s presence. That same evening, Melvin drove as
he, Ridges, and Cole looked for the victim. They came across an
individual named Ken Adams, who told them the victim was at
Adams’s residence. Cole exhorted Ridges: ‘[G]o in his house, you
going to kill this man, you got to kill the other guy too. Can’t
be no eyewitnesses.’ Melvin agreed with Cole but Ridges
responded that the victim was the only one he wanted. During
this discussion, Melvin briefly took possession of Ridges’s
pistol, but Ridges retrieved it. Ridges, Cole, and Melvin exited
the car and walked toward Adams’s residence. Melvin climbed the
steps to the rear of the residence, while Ridges entered through
the back door. Adams, who was inside, saw Ridges open fire on
the victim. As the victim tried to escape through a window,
Ridges shot him twice, hitting the victim behind one knee and
inflicting a fatal wound to the victim’s chest.
“Melvin then drove Ridges and Cole from the scene. They
stopped at a gas station where Cole and Ridges made purchases
3
while Melvin waited in the car. After they left, a law
enforcement officer attempted to stop Melvin’s car using his
blue lights and siren. Melvin turned onto a dirt road and
accelerated, raising a cloud of dust that caused the pursuing
officer to drop back. The car stalled again, so Melvin pulled to
the side of the road, and he, Ridges and Cole fled into nearby
woods. The officer, who was acting on information indicating
only that the vehicle’s registration was faulty, stopped at the
abandoned car, but, unable to find the occupants and seeing no
evidence of a crime, left after a short wait.
“Once the officer departed, Melvin, Ridges, and Cole
returned to the car, wiped it down to remove fingerprints, and
attempted to set it on fire. They then dismantled the murder
weapon and wiped all fingerprints off the pieces.” State v.
Melvin, 707 S.E.2d 629, 630–31 (N.C. 2010) (“Melvin I”).
II
In 2007, a North Carolina grand jury indicted Melvin for
one count of first-degree murder and one count of accessory
after the fact to murder. Because no evidence indicated that
Melvin had fired the shots that killed the victim, the murder
charge was based on the theory that Melvin was an accomplice or
acted in concert with the shooter.
Pertinent to this appeal, at a pretrial hearing, Melvin’s
trial counsel moved the court to sever the offenses on the
4
grounds that first-degree murder and accessory after the fact
are legally inconsistent. The trial judge acknowledged that the
charges were inconsistent but denied the motion to sever,
deciding instead that the appropriate way to deal with
inconsistent charges was to set aside one of the judgments in
the event the jury convicted Melvin of both offenses. Melvin’s
trial counsel conceded that this was the correct approach. The
jury thereafter convicted Melvin of both charges. The trial
judge set aside judgment on the accessory after the fact
conviction and sentenced Melvin to life without parole.
On direct appeal, the North Carolina Court of Appeals
vacated the judgment and ordered a new trial, holding that the
trial court committed plain error by failing to instruct the
jury that it could not convict Melvin of both charges. See State
v. Melvin, 682 S.E.2d 238, 246 (N.C. App. 2009) (“Melvin II”).
The court of appeals concluded that State v. Speckman, 391
S.E.2d 165, 167 (N.C. 1990), required this instruction. 2 The
court of appeals found that plain error justified vacating
2
In Speckman, the jury convicted the defendant of two
mutually exclusive offenses — embezzlement and obtaining
property by false pretenses. The Supreme Court of North Carolina
held that, although mutually exclusive offenses “may be joined
for trial when they are alleged to arise from the same act or
transaction,” the court “must instruct the jury that it may
convict the defendant only of one of the offenses or the other,
but not of both.” 391 S.E.2d at 167.
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Melvin’s convictions because “[i]f properly instructed, the jury
might have determined that [he] was guilty of accessory after
the fact to murder and not guilty of the murder itself.” Melvin
II, 682 S.E.2d at 244.
Thereafter, the Supreme Court of North Carolina reversed
the court of appeals, holding that Melvin did not meet the high
burden under plain error review and that it is a “rare case in
which an improper instruction will justify reversal of a
criminal conviction when no objection has been made in the trial
court.” Melvin I, 707 S.E.2d at 633. The court reasoned that the
trial court erred, but the error did not justify vacating
Melvin’s convictions under plain error review because “in light
of the overwhelming evidence of first-degree murder, [it] [could
not] conclude that a different result would have been probable
if the trial court had given a proper instruction.” Id. at 633–
34.
Melvin subsequently filed a Motion for Appropriate Relief
(“MAR”) in state superior court. In his MAR, Melvin alleged that
he received ineffective assistance of counsel when his trial
attorney failed to request the proper jury instruction under
Speckman. 3 Melvin contended that his counsel’s error was
3Melvin has never contended that, absent counsel’s error,
the evidence was not sufficient to convict him of either
offense.
6
prejudicial because, had counsel successfully requested the
Speckman instruction, the jury would have been forced to choose
between the two charges. If the jury had known they could not
convict Melvin of both offenses, he argued, there would be a
reasonable probability that the jury would have found him guilty
of accessory after the fact but not murder. The superior court
denied the MAR, holding that Melvin had “not shown that his
counsel made errors so serious that he was not functioning as
the counsel guaranteed by the Sixth Amendment or that his
performance fell below an objective standard of reasonableness.”
J.A. 116–117. The MAR court also held that Melvin was not
prejudiced because “[t]here is no reasonable probability that,
if counsel had not committed the errors asserted by [Melvin],
that the trial result would have been different.” Id. at 116.
Melvin then filed a petition for writ of habeas corpus in
federal court. The district court dismissed the petition,
holding that the state superior court reasonably applied
Strickland v. Washington, 466 U.S. 668 (1984), in rejecting
Melvin’s ineffective assistance of counsel claim. Generally
speaking, the court determined that the MAR court was correct in
determining that trial counsel’s representation did not fall
below an objective standard of reasonableness and that Melvin
was not prejudiced.
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III
We review de novo the district court’s application of the
standards of § 2254(d) to the findings and conclusions of the
MAR court. Robinson v. Polk, 438 F.3d 350, 354–55 (4th Cir.
2006). Under this review, our inquiry is limited to an analysis
of whether the MAR court’s adjudication of Melvin’s federal
claims “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
“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)(1)–(2).
The “contrary to” and “unreasonable application of” clauses
of § 2254(d)(1) have meanings which may be satisfied
independently of each other. Williams v. Taylor, 529 U.S. 362,
404–05 (2000). A state court decision is contrary to clearly
established federal law “if the state court applies a rule
different from the governing law set forth in [Supreme Court]
cases, or if it decides a case differently than [the Supreme
Court] on a set of materially indistinguishable facts.” Bell v.
Cone, 535 U.S. 685, 694 (2002). A state court decision is an
unreasonable application of clearly established federal law “if
the state court correctly identifies the governing legal
principle from [Supreme Court] decisions but unreasonably
8
applies it to the facts of the particular case.” Id. Under this
standard, a state court’s decision will not be disturbed where
it is premised on an incorrect, but not unreasonable,
application of federal law. Williams, 529 U.S. at 440. This “is
a difficult to meet and highly deferential standard for
evaluating state-court rulings, which demands that state-court
decisions be given the benefit of the doubt.” Cullen v.
Pinholster, 563 U.S. 170, 171 (2011) (internal punctuation and
citations omitted).
As noted, Melvin contends that he was denied his right to
effective assistance of counsel because his trial counsel was
ineffective in that he failed to request the appropriate jury
instruction. “The essence of an ineffective-assistance claim is
that counsel’s unprofessional errors so upset the adversarial
balance between defense and prosecution that the trial was
rendered unfair and the verdict rendered suspect.” Kimmelman v.
Morrison, 477 U.S. 365, 374 (1986). In other words, the “result
of the proceeding [must be] fundamentally unfair or unreliable.”
Lockhart v. Fretwell, 506 U.S. 364, 369 (1993).
In Strickland, the Court identified two necessary
components of an ineffective-assistance claim: “First, the
defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the
9
defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable.” 466 U.S. at 687.
For purposes of this appeal, the “pivotal question is
whether the state court’s application of the Strickland standard
was unreasonable.” Harrington v. Richter, 562 U.S. 86, 101
(2011). Under § 2254(d), an unreasonable application differs
from an incorrect application of federal law, and a state court
“must be granted a deference and latitude that are not in
operation when the case involves review under the Strickland
standard itself.” Id.
Although Strickland requires a defendant claiming
ineffective assistance to establish deficient performance and
prejudice, the Supreme Court explained that “there is no reason
for a court deciding an ineffective assistance claim to . . .
address both components of the inquiry if the defendant makes an
insufficient showing on one,” and “[i]f it is easier to dispose
of an ineffectiveness claim on the ground of lack of sufficient
prejudice, . . . that course should be followed.” 466 U.S. at
697. Consistent with the Court’s suggested approach, we will
proceed directly to the prejudice component.
10
To establish prejudice under Strickland, a defendant “must
show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
466 U.S. at 694. Under Strickland, “[i]t is not enough for
[Melvin] to show that the errors had some conceivable effect on
the outcome of the proceeding,” id. at 693, and “the question is
not whether a court can be certain counsel’s performance had no
effect on the outcome or whether it is possible a reasonable
doubt might have been established if counsel acted differently,”
Harrington, 562 U.S. at 111. In short, “Strickland asks whether
it is ‘reasonably likely’ the result would have been different,”
and the “likelihood of a different result must be substantial,
not just conceivable.” Id. at 111–12.
Applying this standard of review, we are comfortable that
the MAR court did not unreasonably apply Strickland. The MAR
court weighed the evidence, concluding that the ample evidence
of murder indicated that a properly instructed jury would have
still convicted Melvin of murder. Namely, Melvin was involved in
the original confrontation between the victim and the shooter.
He heard the shooter swear that he would “get” the victim and
then drove the shooter around in their search for him. Melvin
then encouraged the shooter to kill another man in addition to
11
the victim so that there would be no witnesses. He drove the
shooter to the scene of the crime, walked up the stairs to the
back door of the residence, and stood outside as Ridges shot the
victim. The MAR court reiterated the North Carolina Supreme
Court’s conclusion that “[t]he jury, given the opportunity to
consider separately the offenses of murder and accessory after
the fact, convicted defendant of both, indicating its intent to
hold defendant accountable to the fullest extent of the law.”
Melvin I, 707 S.E.2d at 633–34. J.A. 116. Given that the jury
was properly charged on the elements of murder and convicted
Melvin based on more than sufficient evidence, the state
superior court did not unreasonably apply Strickland when it
determined that Melvin was not prejudiced by his counsel’s
error. 4
4 Melvin also contends that he was prejudiced by counsel’s
error because it resulted in the application of a more rigorous
appellate standard of review on direct appeal. In North
Carolina, the standard of review is plain error when a party
does not object to an omission from the jury charge. However, if
counsel properly objects and the alleged error does not violate
the defendant’s rights under the United States Constitution, the
defendant must only prove that “there is a reasonable
possibility that, had the error in question not been committed,
a different result would have been reached at the trial out of
which the appeal arises.” N.C. Gen. Stat. § 15A-1443(a) (2013)
(emphasis added). Even under the more deferential “reasonable
possibility” standard of review, Melvin was still not prejudiced
by counsel’s error. Given the overwhelming evidence presented at
trial, there is no reasonable possibility that, had counsel
requested the Speckman instruction, Melvin would not have been
convicted of murder.
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IV
“As a condition for obtaining habeas corpus from a federal
court, a state prisoner must show 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, 562 U.S. at 103. We hold
that Melvin has fallen well short of meeting this standard.
Therefore, we affirm the district court’s dismissal of Melvin’s
petition for writ of habeas corpus.
AFFIRMED
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