UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CARROLL SHERON HARRISON,
Petitioner-Appellant,

v.

RONALD F. MOATS, Warden,
                                                                        No. 98-6776
Roxbury Correctional Institution;
ATTORNEY GENERAL OF THE STATE OF
MARYLAND,
Respondents-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CA-97-1440-JFM)

Submitted: October 20, 1998

Decided: November 17, 1998

Before MURNAGHAN and NIEMEYER, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Thomas M. DiGirolamo, Hagerstown, Maryland, for Appellant. J.
Joseph Curran, Jr., Attorney General of Maryland, Annabelle L. Lisic,
Assistant Attorney General, Baltimore, Maryland, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Carroll Sheron Harrison was convicted in Maryland state court of
the first degree murder of Michael Patterson and the use of a handgun
in the commission of a felony. After exhausting all avenues of relief
in state court, Harrison filed a petition for a writ of habeas corpus pur-
suant to 28 U.S.C.A. § 2254 (West 1994 & Supp. 1998) in federal dis-
trict court alleging various instances of ineffective assistance of
counsel. Harrison now appeals the district court's order denying his
petition. The district court granted a certificate of appealability and
we now affirm the denial of habeas relief.

The evidence presented at trial disclosed that after dinner in
Georgetown on November 4, 1989, Harrison, accompanied by his gir-
lfriend, Malika Sulieman, her younger sister, Neema Sulieman, and
their friend, Sherrika Callis, decided to pick up his friend, Daymond
Parker, to got to the movies. Harrison, driving Malika's parents' car,
first drove to his apartment where he placed several shopping bags
into the trunk of Malika's parents' car. After picking up Parker, the
group then proceeded to Regent Street Station Apartments. Upon their
arrival at approximately 11:30 p.m., Harrison and Parker entered the
apartments while the others remained in the car. Some time later, Par-
ker returned to the car, retrieved a bag from the trunk, and returned
to the apartment. Malika testified that soon thereafter she heard gun
shots and noticed a man running from the apartment. She then
observed Harrison and Parker running after the man and shooting,
Parker with a large gun, and Harrison a smaller gun. Harrison and
Parker then returned to the car, and the group proceeded to the mov-
ies. Sherrika testified that she did not see Parker or Harrison shoot at
anyone; rather, she watched the man running.

With respect to what transpired inside the apartment, Tevin Varney
testified that after Harrison and Parker arrived, Harrison frisked

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Varney. Varney noticed that Harrison had a .38 caliber pistol tucked
in the front of his pants. Two other men, Keith Perry and the victim
Michael Patterson, then arrived at the apartment. After an argument
arose over the sale of a rock of crack cocaine, Parker told Patterson,
"I have got something for you." Parker then returned with a brown
paper bag. Parker removed an automatic weapon from the bag and
fired five shots. Patterson fled the apartment, and Parker and Harrison
also ran out of the apartment. Keith Perry, who was a resident of a
mental hospital at the time of his testimony, testified consistently with
these facts.

Harrison was convicted of first degree murder and the use of a
handgun in the commission of a felony and sentenced to life impris-
onment with all but forty years suspended on the murder conviction
and received a ten year concurrent sentence on the use of a handgun
conviction. After exhausting all claims in state court, Harrison filed
a petition for a writ of habeas corpus pursuant to 28 U.S.C.A. § 2254
(West 1994 & Supp. 1998). Harrison now timely appeals the denial
of that petition.

A district court's decision to deny a petition for a writ of habeas
corpus is reviewed de novo. See Ashe v. Styles , 67 F.3d 46, 50 (4th
Cir. 1995). Harrison claims his counsel was ineffective in three ways.
He maintains that his attorney: (1) erred in not calling Neema Sulie-
man as a witness; (2) failed to cross examine Perry about his resi-
dency in a mental institution; and (3) failed to adequately advise him
of his right to testify. To establish a valid ineffective assistance of
counsel claim, a petitioner must show that "counsel's performance
was deficient," and that "the deficient performance prejudiced the
defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). An
attorney's performance is deficient if it falls below "an objective stan-
dard of reasonableness" and "counsel made errors so serious that
counsel was not functioning as the `counsel' guaranteed [petitioner]
by the Sixth Amendment." Id. at 687-88. An attorney's performance
prejudices the defense if "counsel's errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable."
Id.

We note that a claim that has been decided on the merits by a state
court cannot serve as a basis for federal habeas relief unless the state

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court's decision was: (1) as to a legal question, contrary to a rule of
law dictated by clearly established Supreme Court precedent; (2) as
to a mixed question of law and fact, an unreasonable application of
a rule of law dictated by clearly established Supreme Court precedent;
or (3) as to a question of fact, unreasonable in light of the evidence
presented in state court proceedings. See 28 U.S.C.A. § 2254(d)
(West 1994 & Supp. 1998). An ineffective assistance of counsel claim
presents a mixed question of law and fact. See Strickland, 466 U.S.
at 698.

Harrison first asserts that based on her statement to the police,
Neema would have testified that she heard gun shots while she was
in the car that evening, but did not see anyone with a gun. Harrison
argues that his counsel erred in not calling Neema as a witness
because her testimony would have corroborated Sherrika's testimony
that she did not see him shoot anyone and would also discredit
Malika's testimony that he shot at the victim. As the district court
noted, however, the fact that neither Sherrika nor Neema saw Harri-
son shoot the victim does not discredit Malika's testimony, especially
in light of the fact that Sherrika and Neema both"ducked down,"
unlike Malika, and therefore could not see the shooters.

It was reasonable for Harrison's counsel to conclude that Neema's
testimony would have been merely cumulative of Sherrika's testi-
mony and could have bolstered Malika's testimony given the consis-
tency of Neema's statement to Malika's testimony in all other
respects. We therefore find that the district court properly concluded
that Harrison failed to demonstrate that his counsel was deficient or
that but for counsel's alleged deficient conduct the outcome of his
trial would have been different.

Harrison next alleges that counsel was ineffective in failing to cross
examine Kenneth Perry about his mental state and his ability to
remember. Harrison's counsel explained at the post-conviction hear-
ing that he decided not to cross examine in this respect because
Perry's testimony was both helpful and detrimental to Harrison's
defense. Perry testified that although he did not see Harrison shoot
anyone, he observed Harrison with a gun when Harrison frisked him
upon his entry into the apartment. We agree with the district court that
counsel's decision was strategic and his assessment did not amount

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to unreasonable professional assistance. See Strickland, 466 U.S. at
690.

Finally, Harrison avers that counsel failed to adequately advise him
of his right to testify in his own defense. At the state post-conviction
hearing, Harrison testified that he wanted to testify, but that counsel
failed to call him as a witness despite the fact that he informed coun-
sel of his desire to do so. Further responses suggested that counsel
advised Harrison not to testify, advice Harrison now regrets accept-
ing. Harrison's counsel, on the other hand, testified that he informed
Harrison of his right to testify and told him that it was his decision
to make. The state court found that Harrison failed to demonstrate that
his will was overborne or that he was coerced into waiving his right
to testify. We agree with the district court that the state court's deci-
sion was neither an unreasonable application of federal law nor was
it based on an unreasonable determination of the facts in light of the
evidence.

Accordingly, we affirm. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.

AFFIRMED

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