                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 14-7611


DEREK J. BROWN,

                  Petitioner - Appellant,

          v.

WARDEN OF PERRY CORRECTIONAL INSTITUTION,

                  Respondent - Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Timothy M. Cain, District Judge.
(0:12-cv-02988-TMC)


Submitted:   March 31, 2015                 Decided:   April 7, 2015


Before KING, SHEDD, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Derek J. Brown, Appellant Pro Se. Donald John Zelenka, Senior
Assistant Attorney General, Columbia, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Derek J. Brown, a state inmate, filed a 28 U.S.C. § 2254

(2012) petition raising multiple claims.                  The magistrate judge

recommended    denying       a      certificate      of     appealability              and

dismissing the petition.         The district court, however, granted a

certificate   of    appealability       on    one   claim,      namely,       whether

appellate counsel was ineffective for failing to challenge on

direct appeal the trial court’s denial of a mistrial based on

improper comments made by the prosecutor during closing argument

regarding Brown’s decision not to testify.

      Brown is entitled to habeas relief on a claim adjudicated

“on the merits” by a state court only if the state court’s

disposition   of    that    claim    “was    contrary     to,     or    involved        an

unreasonable application of, clearly established Federal law, as

determined    by    the    Supreme     Court,”      or     “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);

Barnes v. Joyner, 751 F.3d 229, 238 (4th Cir. 2014).                          Clearly

established federal law “refers to the holdings, as opposed to

the dicta, of [the Supreme] Court’s decisions as of the time of

the relevant state-court decision.”                 Williams v. Taylor, 529

U.S. 362, 412 (2000).        Brown may not obtain habeas relief unless

he   demonstrates   “that    the     state   court’s      ruling       on   the    claim



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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 v. Richter, 562 U.S. 86, 103 (2011).

Before a federal court grants habeas relief, it must conclude

that the constitutional error had a “substantial and injurious

effect or influence in determining the jury’s verdict.”                      Barnes,

751 F.3d at 239 (citation and internal quotation marks omitted).

Factual findings by the state court are presumed correct, and

Brown bears the burden to rebut the presumption by clear and

convincing     evidence.       See    28     U.S.C.    § 2254(e)(1);       Tucker   v.

Ozmint, 350 F.3d 433, 439 (4th Cir. 2003).

       In light of this standard, we conclude that the district

court did not err in concluding that the state post-conviction

court did not unreasonably apply clearly established federal law

in determining that the prosecutor’s comments did not so infect

the trial with unfairness as to make the resulting conviction a

denial of due process and, therefore, appellate counsel was not

constitutionally ineffective in failing to raise the issue on

direct appeal.       Accordingly, we affirm for the reasons stated by

the    district   court.       Brown       v.    Warden,     No.    0:12-cv-02988-TMC

(D.S.C. Sept. 25, 2014).           We dispense with oral argument because

the facts and legal contentions are adequately presented in the



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materials   before   this   court   and   argument   would   not   aid   the

decisional process.

                                                                   AFFIRMED




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