                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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