                                UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                                 No. 08-6


THOMAS TRESHAWN IVEY,

                 Petitioner - Appellant,

           v.

JON OZMINT,     Commissioner,    South   Carolina   Department   of
Corrections,

                 Respondent - Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Rock Hill.   G. Ross Anderson, Jr., District
Judge. (0:07-cv-04024-GRA-BM)


Argued:   October 29, 2008               Decided:   December 17, 2008


Before NIEMEYER, TRAXLER, and AGEE, Circuit Judges.


Affirmed by unpublished opinion. Judge Agee wrote the opinion,
in which Judge Niemeyer and Judge Traxler concurred.


ARGUED: William Harry Ehlies, II, Greenville, South Carolina,
for Appellant.    Donald John Zelenka, SOUTH CAROLINA ATTORNEY
GENERAL’S OFFICE, Columbia, South Carolina, for Appellee.     ON
BRIEF: Robert E. Lominack, Columbia, South Carolina, for
Appellant.    Henry D. McMaster, Attorney General, John W.
McIntosh, Chief Deputy Attorney General, SOUTH CAROLINA ATTORNEY
GENERAL’S OFFICE, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
AGEE, Circuit Judge:

     Thomas Treshawn Ivey, convicted of murder and sentenced to

death by the State of South Carolina, appeals from the district

court’s denial of his petition for a writ of habeas corpus under

28 U.S.C. § 2254.         Because Ivey failed to rebut by clear and

convincing evidence the presumption of correctness due the state

court’s factual findings that a disputed juror was qualified to

be empanelled, and that his trial counsel had no actual conflict

of interest, and because the state court’s determination that

Ivey’s     appellate    counsel   was       not   ineffective      was   not     an

unreasonable application of clearly established Federal law, as

determined by the Supreme Court, we affirm the judgment of the

district court dismissing the petition with prejudice.



                                     I.

                                     A.

     In January 1993, Ivey and Vincent Neumon escaped from jail

in Alabama, stole a vehicle, and drove to Neumon’s hometown of

Columbia, South Carolina.         They then abducted Robert Montgomery

in   his   minivan     and,   according      to   Neumon,   Ivey    later      shot

Montgomery to death.          They subsequently drove to Atlanta with

Patricia Perkins, where they stole another car.                 The trio then

drove to a mall in Orangeburg, South Carolina, where Perkins and

Neumon aroused suspicion by attempting to buy several hundred

                                        2
dollars of merchandise with checks and identification taken from

the latest stolen car.                  During a confrontation with Sergeant

Thomas   Harrison,          an    Orangeburg        police   officer,        Ivey    shot

Harrison to death.

      Neumon subsequently confessed to his role in these crimes

and   entered   into    a        plea    agreement    requiring    him       to   testify

against Ivey.     The Harrison case was prosecuted first and Ivey

was found guilty of Harrison’s murder and sentenced to death.

Neumon testified in both the guilt and penalty phases of that

trial.     Ivey       was    subsequently         prosecuted      for    Montgomery’s

kidnapping, robbery, and murder.                 In July 1995, he was convicted

of these offenses and again sentenced to death.



                                            B.

      Kawiana Young was a member of the venire for the Montgomery

trial.    During voir dire, Young stated at times that she would

always   vote    to    impose       the     death    penalty   upon      a    defendant

convicted of murder.             However, during other portions of her voir

dire, Young stated that she would keep an open mind, listen to

both sides, and determine the best outcome for that particular

case.    Ivey moved to strike Young for cause but the state trial

court found “she’s a qualified juror given the totality of her

responses.”     (J.A. 41-61.)



                                             3
                                         C.

       Although he had already testified against Ivey in the guilt

and sentencing phases of the Harrison trial and the guilt phase

of the Montgomery trial, Neumon refused to testify during the

sentencing    phase    of    the   Montgomery     trial.         The   trial   court

granted the prosecution’s motion to call Neumon as a court’s

witness.     Neumon continued to refuse to testify, whereupon the

court    cited   him   for    contempt,        declared    him    an   unavailable

witness, and allowed the prosecution to read portions of his

testimony from the Harrison trial.                Ivey objected that reading

Neumon’s testimony from the Harrison trial would prevent Ivey

from    cross-examining      him--that    his    cross-examination        might   be

substantially different than that in the Harrison trial and that

this process was prejudicial.                 The trial court overruled the

objection and Neumon’s testimony from the Harrison trial was

read into the record in the sentencing phase of the Montgomery

trial.



                                         D.

       On direct appeal to the Supreme Court of South Carolina for

his convictions and death sentence in the Montgomery trial, Ivey

was represented by Joseph Savitz, deputy chief attorney in the

state’s Office of Appellate Defense.              Savitz argued, inter alia,

that juror Young should not have been seated and that the trial

                                         4
court unduly influenced the jury by calling Neumon as a court’s

witness.      Savitz did not raise a Confrontation Clause challenge

to the admission of Neumon’s testimony from the Harrison trial.

In South Carolina v. Ivey, 502 S.E.2d 92, 95 (S.C. 1998), cert.

denied,      525     U.S.    1075       (1999),        the    Supreme       Court    of    South

Carolina affirmed Ivey’s convictions and death sentence from the

Montgomery trial.



                                                  E.

       In    the    Montgomery       trial,        Ivey      was    represented       by   Doyet

“Jack”      Early,    court-appointed             counsel,         and   Michael     Culler,   a

public defender.            In 2001, while pursuing his state collateral

review,      Ivey     discovered         that      Culler      had       been   appointed      to

represent Perkins in proceedings related to the earlier Harrison

trial.       However,       Culler      had       been    permitted       to    withdraw    from

representing Perkins based on a letter he wrote to the trial

court    stating      that    he     had      a    “conflict        of    interest”    because

“Officer Tom Harrison, who was killed in this incident, was a

personal friend.”           (J.A. 310.)               When Ivey then raised the issue

of    Culler’s      conflict       of    interest        during      trial      in   the   state

collateral proceeding, Culler confirmed that he had written the

letter but denied any personal relationship with Harrison or

that any conflict had, in fact, existed.                            Culler testified that

his    relationship         with     Harrison          was    merely       professional      and

                                                  5
tangential, that the letter was inaccurate, and that he had no

explanation for how it had come to be written.                            In addition,

Early testified that “Culler never acted less than zealous in

Ivey’s defense and he appeared to be absolutely interested in

saving Ivey’s life.”          (J.A. 481.)



                                          F.

      Among the grounds for relief raised in his petition for

state collateral review, Ivey alleged (1) that Culler’s recently

discovered    withdrawal       from     representing       Perkins        reflected    an

actual   conflict     of     interest    that      deprived     Ivey      of   effective

assistance of trial counsel, and (2) that Savitz deprived him of

effective    assistance        of      appellate       counsel       by    failing     to

challenge Young’s inclusion on the jury and failing to challenge

the admission of Neumon’s testimony from the Harrison trial on

Confrontation Clause grounds.

      After comparing the contents of Culler’s withdrawal letter

with Culler and Early’s testimony, the state court found that

the   letter’s     contents     were    factually        inaccurate,       that   Culler

“had no personal relationship with Officer Harrison,” and “no

conflict    of     interest    existed”       in   Culler’s      representation        of

Ivey.    (J.A.     482.)     The state court also determined that Savitz

had   not   been    ineffective       because      the    use   of     Neumon’s     prior

testimony    from      the     Harrison        trial     did     not      violate     the

                                          6
Confrontation Clause.            Finally, the court ruled that Ivey did

not   prove   that      Savitz    had     been     ineffective      for    failing      to

challenge     Young’s     inclusion        on    the     jury   because     Savitz    had

raised that challenge on appeal.                   Accordingly, the state court

denied Ivey’s petition for post-conviction collateral relief.

      In a federal habeas petition in the district court, Ivey

renewed    his     claims     that      Culler     had    an    actual    conflict      of

interest that deprived Ivey of effective assistance of counsel

at    trial   and      that   Savitz’s          failure    to    challenge      Neumon’s

testimony     on      Confrontation       Clause       grounds     deprived     him     of

effective assistance of counsel on appeal.                      Ivey also challenged

on the merits the trial court’s inclusion of Young on the jury.

The district court denied Ivey’s petition.                       Ivey timely filed a

notice of appeal and the district court granted a certificate of

appealability pursuant to 28 U.S.C. § 2253.



                                           II.

      Ivey contends the district court erred in denying his §

2254 petition because (1) Young’s responses to questions during

voir dire show that she was not impartial about the application

of the death penalty, (2) Culler’s letter requesting withdrawal

from representation of Patricia Perkins demonstrates that Culler

had   an   actual      conflict      of   interest        adversely      affecting    his

performance      at    trial,     and     (3)    Savitz’s       failure    to   raise   a

                                            7
Confrontation    Clause   challenge       to   the   use   of   Neumon’s   prior

testimony   constituted     ineffective         assistance       of   appellate

counsel.

     This Court reviews the denial of a § 2254 petition de novo,

applying the same standards applicable in the district court.

Jackson v. Johnson, 523 F.3d 273, 276 (4th Cir. 2008).                      “An

application for a writ of habeas corpus . . . shall not be

granted” on any claim adjudicated in state proceedings unless

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) (2000).        When assessing whether the state

court’s determination of facts is unreasonable, we presume those

determinations    are   correct   unless       the   applicant    rebuts    “the

presumption of correctness by clear and convincing evidence.”

28 U.S.C. § 2254(e)(1) (2000); Lenz v. Washington, 444 F.3d 295,

300-01 (4th Cir. 2006). 1


     1
       Ivey contends that “some tension appears to exist between
§ 2254(e)(1), under which state court factual findings are
presumed to be correct, and § 2254(d)(2), which can only be read
as requiring federal habeas courts to look beneath a state
court’s factual findings to assess their reasonableness in light
of the record that was before the state court.” (Br. Appellant
15.) Ivey argues that the district court should have undertaken
(Continued)
                                      8
                               A.

     Ivey contends that Young’s responses to questioning during

voir dire established that she believed death to be the only

appropriate sentence for a person convicted of murder.   Because

this issue was considered during Ivey’s direct appeal, 2 it “was

adjudicated on the merits in State court proceedings” for the

purposes of § 2254(d).

     The Sixth Amendment guarantees the accused a right to trial

by an impartial jury, Fullwood v. Lee, 290 F.3d 663, 677 (4th




the latter approach in his case and determined de novo whether
the state court’s factual findings are reasonable.

   A similar argument was made by the applicant in Lenz.      In
that case, this Court, relying in part on Miller-El v. Dretke,
545 U.S. 231 (2005), held that a state court’s factual findings
are presumed to be sound in a § 2254(d)(2) review for
reasonableness unless rebutted by clear and convincing evidence
as required by § 2254(e)(1). 444 F.3d at 300-01. Our precedent
in Lenz, which the district court applied below, controls here.
See, e.g., McMellon v. United States, 387 F.3d 329, 334 (4th Cir
2004) (restating the well-established rule that one panel of
this Court may not overrule another).
     2
       Because Ivey raised the issue of Young’s impartiality on
the merits at trial and in the state supreme court on direct
appeal, his failure to present that issue in his state habeas
petition does not preclude our consideration of the issue here.
See Woodford v. Ngo, 548 U.S. 81, 92 (2006) (“A state habeas
petitioner is generally barred from obtaining federal habeas
relief unless the prisoner has presented his or her claims
through one ‘complete round of the State’s established appellate
review process.’” (quoting O’Sullivan v. Boerckel, 526 U.S. 838,
845 (1999)).



                               9
Cir.     2002),     which   precludes      the    qualification     of    a    juror

predisposed in all cases to impose the death penalty:

       A juror who will automatically vote for the death
       penalty in every case . . . has already formed an
       opinion on the merits[;] the presence or absence of
       either aggravating or mitigating circumstances is
       entirely irrelevant to such a juror. . . .    If even
       one such juror is empaneled and the death sentence is
       imposed, the State is disentitled to execute the
       sentence.

Morgan v. Illinois, 504 U.S. 719, 729 (1992).

       However, the question of Young’s impartiality is a question

of fact and the state court’s determination of that issue is

entitled       to    the    §   2254(e)(1)        statutory     presumption       of

correctness, see Wainwright v. Witt, 469 U.S. 412, 429 (1985),

which Ivey has not overcome by clear and convincing evidence.

Ivey does nothing more than point to that portion of Young’s

voir   dire,      already   considered     by    the   trial   court,    where   she

stated    a   preference     for    the   death    penalty.     However,      Ivey’s

argument ignores the totality of Young’s voir dire testimony,

particularly those portions where she indicated she would obey

the court’s instructions, “could vote for a life sentence,” and

would consider all the evidence during the sentencing phase to

arrive at what was “appropriate, given the circumstances of a

particular case.”           (J.A. 48.)         Accordingly, the state courts’

determination       that    Young   was   a     qualified   juror   was   not    “an

unreasonable determination of the facts in light of the evidence


                                          10
presented.”     Thus, we find no error in the district court’s

denial of Ivey’s petition on this ground. 3



                                       B.

     Ivey     also    contends    that      Culler’s   letter    requesting

withdrawal from representation of Perkins in the Harrison trial

proves an actual conflict of interest on the part of his trial

counsel,    which    deprived   Ivey   of   the   effective   assistance   of

counsel.    Because this issue was considered during Ivey’s state

habeas review, it “was adjudicated on the merits in State court

proceedings” for the purposes of § 2254(d).

           The Sixth Amendment guarantees an accused the
     right    to   effective    assistance    of    counsel,    see
     Strickland v. Washington, [466 U.S. 668 (1984)], and
     an essential aspect of this right is a lawyer
     unhindered by conflicts of interest.          In general, to
     prevail    on    an   ineffective   assistance      claim,   a
     petitioner must establish (1) that his lawyer's
     performance    was    deficient   by    showing     that   his
     performance fell below an objectively reasonable
     standard, and (2) that his deficient performance
     prejudiced the petitioner's case.
          We     have    recognized    that,     as    a    general
     proposition, the effective performance of counsel
     requires meaningful compliance with the duty of
     loyalty and the duty to avoid conflicts of interest,

     3
       Because we conclude that the state court’s determination,
based upon the totality of the voir dire testimony, was not an
unreasonable determination of the facts in light of the evidence
presented, we need not consider Ivey’s additional claim that the
district court erred, under Snyder v. Louisiana, 128 S. Ct. 1203
(2008), in relying on the trial court’s ability to observe the
juror’s demeanor.



                                       11
    and a breach of these basic duties can lead to
    ineffective    representation.      When    a  petitioner
    premises his ineffective assistance claim on the
    existence of a conflict of interest, the claim is
    subjected to the specific standard spelled out in
    Cuyler v. Sullivan, [446 U.S. 335 (1980)], instead of
    that articulated in Strickland.     To establish that a
    conflict    of    interest   resulted    in   ineffective
    assistance, more than a mere possibility of a conflict
    must be shown. The petitioner must show (1) that his
    lawyer was under an actual conflict of interest and
    (2) that this conflict adversely affected his lawyer's
    performance. If the petitioner can show an actual
    conflict, and that it adversely affected his lawyer's
    performance, prejudice is presumed and there is no
    need to demonstrate a reasonable probability that, but
    for the lawyer's conflict of interest, the trial or
    sentencing outcome would have been different.        [A]n
    adverse effect is not presumed from the existence of
    an actual conflict of interest.

United    States    v.    Nicholson,      475     F.3d   241,   248-249     (4th   Cir.

2007)     (internal       quotation      marks,      alterations,     and   citations

omitted).

    “The question whether a conflict of interest impermissibly

tainted an attorney's performance is a mixed question of law and

fact . . . that calls for ‘the application of legal principles

to the historical facts of [a given] case.’”                    Familia-Consoro v.

United    States,     160       F.3d   761,    764    (1st   Cir.   1998)    (quoting

Cuyler,    446     U.S.    at    342).        Nevertheless,     the    state   habeas

court’s findings of those historical facts are entitled to the

statutory presumption of correctness, Freund v. Butterworth, 165

F.3d 839, 862 (11th Cir. 1999), which Ivey has again failed to

overcome by clear and convincing evidence.                   Ivey has done little


                                           12
more than point to Culler’s letter, already determined by the

state habeas court not to have created a conflict of interest

because its contents were inaccurate.                  On that basis, Ivey has

fallen far short of rebutting by clear and convincing evidence

the   state    court’s    determination        that    Culler   had    no     personal

relationship with Harrison, and therefore no actual conflict of

interest.      The state habeas court’s determination was thus not

“an   unreasonable       determination    of    the    facts    in    light    of   the

evidence      presented.”      Accordingly,       we    find    no   error     in   the

district court’s denial of Ivey’s petition on ground of conflict

of interest by Culler.



                                         C.

      Ivey further contends that Savitz’s failure to challenge

the   admission     of    Neumon’s   prior      testimony       on    Confrontation

Clause grounds constituted ineffective assistance of appellate

counsel.      Because this issue was considered during Ivey’s state

habeas review, it “was adjudicated on the merits in State court

proceedings” for the purposes of § 2254(d).

           . . . .    Th[e] right to effective assistance of
      counsel extends to require such assistance on direct
      appeal of a criminal conviction.
           In order to establish a claim that appellate
      counsel was ineffective for failing to pursue a claim
      on   direct  appeal,   the   applicant  must  normally
      demonstrate (1) that his counsel’s representation fell
      below an objective standard of reasonableness in light
      of the prevailing professional norms, and (2) that

                                         13
     there is a reasonable probability that, but for
     counsel's unprofessional errors, the result of the
     proceeding would have been different.
          In applying this test to claims of ineffective
     assistance of counsel on appeal, however, reviewing
     courts must accord appellate counsel the presumption
     that he decided which issues were most likely to
     afford relief on appeal. Counsel is not obligated to
     assert all nonfrivolous issues on appeal, as there can
     hardly be any question about the importance of having
     the appellate advocate examine the record with a view
     to selecting the most promising issues for review.

Bell v. Jarvis, 236 F.3d 149, 164 (4th Cir. 2000) (internal

quotation marks, alterations, and citations omitted).

     The state habeas court determined that the Confrontation

Clause jurisprudence flowing from Ohio v. Roberts, 448 U.S. 56

(1980), applicable at the time of Ivey’s appeal, 4 would not have

barred the use of Neumon’s prior testimony.     For that reason,

the state court concluded that Ivey could not meet the second

prong of the ineffectiveness analysis because the results of his

direct appeal would not have been different even if Savitz had

raised the issue. 5




     4
        The state court correctly noted that Crawford v.
Washington, 541 U.S. 36 (2004), does not apply retroactively and
was not applicable during the Montgomery trial. See Whorton v.
Bockting, 549 U.S. 406, ___, 127 S. Ct. 1173, 1184 (2007).
     5
       The state habeas court also found that the Confrontation
Clause issue had not been preserved for appeal as a matter of
state law.   Because we dispose of this issue under 28 U.S.C.
2254(d)(1), we need not consider the state’s argument that Ivey
procedurally defaulted habeas review of this claim.



                               14
      In Roberts, the Supreme Court stated that the Confrontation

Clause     was    not   offended    when         the    prior   testimony        of   an

unavailable witness was admitted with “indicia of reliability”

allowing    the    fact-finder     to   evaluate        the   truth   of   the    prior

statement.        448 U.S. at 65-66.             The Supreme Court ultimately

held that where “there was an adequate opportunity to cross-

examine [the witness], and counsel . . . availed himself of that

opportunity, the transcript . . . bore sufficient indicia                             of

reliability and afforded the trier of fact a satisfactory basis

for evaluating the truth of the prior statement.”                          Id. at 73

(internal quotation marks omitted).                    Roberts therefore did not

bar   Neumon’s     prior   testimony        from   the    Harrison    trial,      where

Neumon had been available for and subjected to cross-examination

by Ivey in that proceeding. 6           7
                                             Consequently, Ivey’s claim does

not meet the requirements of § 2254(d)(1).



      6
       The fact that Ivey had different counsel in the Harrison
trial is immaterial. See id. at 72 (“Nor does it matter that .
. . respondent had a different lawyer . . . .     Indeed, if we
were to accept this suggestion . . . a defendant could” evade
the rule merely by changing counsel.).
      7
       The Roberts Court also stated that “[r]eliability can be
inferred without more in a case where the evidence falls within
a firmly rooted hearsay exception.”     Id. at 66.   Clinging to
this statement, Ivey argues that Neumon’s testimony was
improperly admitted based on state evidentiary rules proscribing
hearsay. Because our review is limited to “clearly established
Federal law” and because Roberts supports the use of Neumon’s
testimony, we do not consider this argument.



                                            15
     The   state    court’s    determination      that     Savitz   was   not

ineffective because the outcome of Ivey’s direct appeal would

not have been different had Savitz raised the issue was not “a

decision   that    was   contrary   to,    or   involved   an    unreasonable

application of, clearly established Federal law.”               Thus, we find

no error in the district court’s denial of Ivey’s petition on

this ground.



                                    III.

     For the foregoing reasons, we affirm the judgment of the

district court.

                                                                     AFFIRMED




                                     16
