                              UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                              No. 13-7720


MARVIN EARL WILLIAMS, JR.,

                Petitioner – Appellant,

          v.

WILLIAM   STANLEY,     Superintendent,   Johnston     Correctional
Institution,

                Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:99-hc-00123-F)


Submitted:   July 31, 2014                  Decided:    August 20, 2014


Before NIEMEYER, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mary Sheehan Pollard, Nicholas Collins Woomer-Deters, NORTH
CAROLINA PRISONER LEGAL SERVICES, INC., Raleigh, North Carolina,
for Appellant.   Sandra Wallace-Smith, NORTH CAROLINA DEPARTMENT
OF JUSTICE, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Marvin       Earl    Williams,        Jr.,       was   convicted      in    North

Carolina     state    court      of       first-degree        murder,       burglary        with

explosives, and safecracking, and he was sentenced to death. *

Following state direct appeal and post-conviction proceedings,

Williams   filed     a    28     U.S.C.      § 2254      (2012)      petition,       raising

numerous claims.          The district court granted summary judgment

against Williams as to all claims, but it granted a certificate

of   appealability        as    to    one    claim:      that       trial    counsel        was

ineffective    in    failing         to   move    for    a    mistrial      or   a   hearing

following a juror’s request to be excused from the jury.                                      On

appeal,    Williams       challenges        the    district         court’s      denial       of

relief on that claim without an evidentiary hearing.                                 For the

reasons that follow, we affirm.

            A federal court may grant habeas corpus relief on a

claim adjudicated on the merits by a state court only if the

state court’s ruling was either (1) “contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined     by    the        Supreme      Court,”         or    (2)   “based        on     an

unreasonable determination of the facts in light of the evidence

presented in the State court proceedings.”                         28 U.S.C. § 2254(d).

     *
        The North Carolina Superior Court has since vacated
Williams’ death sentence and imposed a sentence of life
imprisonment, on grounds unrelated to this appeal.



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We   review    for       abuse    of    discretion          the    decision     to   deny    an

evidentiary hearing in a § 2254 proceeding.                            Wolfe v. Johnson,

565 F.3d 140, 160 (4th Cir. 2009).

              We have recognized that a habeas petitioner

      who has diligently pursued his habeas corpus claim in
      state court is entitled to an evidentiary hearing in
      federal court, on facts not previously developed in
      the state court proceedings, if the facts alleged
      would entitle him to relief, and if he satisfies one
      of the six factors enumerated by the Supreme Court in
      Townsend v. Sain, 372 U.S. 293, 313 (1963).

Wolfe, 565 F.3d at 168 (internal quotation marks omitted); see

Townsend,     372    U.S.    at       313    (listing       factors).      In   making     this

determination, the reviewing court evaluates the petition under

the standards applicable to a Fed. R. Civ. P. 12(b)(6) motion to

dismiss.      Conaway v. Polk, 453 F.3d 567, 582 (4th Cir. 2006);

see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)

(stating Rule 12(b)(6) standard).

              On appeal, Williams does not allege that the facts

presented     to    the    district          court    relative       to   the     motion    for

summary judgment entitle him to habeas relief.                                  Nor does he

fairly challenge the district court’s consideration of his claim

under § 2254(d)’s deferential standard of review.                                 Rather, he

argues   that      the    district          court    erred    in    failing     to   hold    an

evidentiary     hearing,         as    he    has     both    alleged      facts    which,    if

true, are sufficient to warrant habeas relief and met several



                                                3
Townsend factors.          By way of relief, he seeks only a remand to

the district court for an evidentiary hearing.

            Even       assuming    Williams       can     meet    the     Townsend       test,

however, he faces another hurdle to his request for a hearing.

The     Supreme    Court    has     held      that       “[i]f    a     claim     has       been

adjudicated on the merits by a state court, a federal habeas

petitioner must overcome the limitation of § 2254(d)(1) on the

record that was before that state court.”                        Cullen v. Pinholster,

131 S. Ct. 1388, 1400 (2011).                      In such a circumstance, any

evidentiary       hearing   in     federal       court     is    unwarranted,          as   new

evidence adduced during such a hearing could not be considered

in making the determination under § 2254(d)(1).                               Id. at 1399-

400.

            We have reviewed the record and submissions of the

parties and conclude that the district court properly determined

that the state court adjudicated Williams’ claim on the merits.

See    Winston    v.    Pearson,    683      F.3d    489,       502    (4th     Cir.    2012).

Thus,    under    Pinholster,       Williams        is    not     entitled       to     adduce

evidence to support a claim under § 2254(d)(1).                          Moreover, under

§ 2254(d)(2), the court may only grant habeas relief when the

state court’s factual determination was unreasonable “in light

of the evidence presented in the State court proceeding.”                                    Any

new    evidence    presented       at   an       evidentiary          hearing    would       not

entitle Williams to relief on his claim under § 2254(d)(2).

                                             4
          Because Williams is not entitled to the only relief he

seeks on appeal, we affirm the district court’s judgment.                We

deny Williams’ motion for appointment of counsel.               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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