                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 16-7284


JEREMY R. PHILLIPS,

                 Petitioner - Appellant,

          v.

SCOTT LEWIS, Warden,

                 Respondent - Appellee.




Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., Senior
District Judge. (6:15-cv-02458-HMH)


Submitted:     February 1, 2017             Decided:   March 31, 2017


Before NIEMEYER, DUNCAN, and DIAZ, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Allen Mattison Bogan, Blake Terence Williams, NELSON MULLINS
RILEY & SCARBOROUGH, LLP, Columbia, South Carolina, for
Appellant. Donald   John   Zelenka,  Senior Assistant Attorney
General, Alphonso Simon, Jr., Assistant Attorney General,
Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

        Jeremy   R.   Phillips, a South Carolina prisoner, filed a 28

U.S.C. § 2254 (2012) petition challenging his convictions for

the murder of Juan Roman and arson of Roman’s trailer.                         Phillips

asserted that his codefendant, Jesse Willis, beat Roman and set

the fire that caused Roman’s death, and that Phillips’ trial

counsel was constitutionally ineffective for failing to pursue a

third-party       guilt       defense       by     researching        the     defense,

investigating Willis’ admissions of guilt, and calling witnesses

to testify about those admissions.                   Phillips also argued that

his trial counsel was ineffective for failing to review physical

evidence with Phillips before trial, including a towel soaked in

Roman’s       blood   found    in     Phillips’     trailer.         Accepting       the

recommendation        of    the     magistrate      judge,    the    district       court

ruled     that    Phillips        procedurally       defaulted       on     his     claim

regarding      the    physical      evidence      and   denied      relief    for    the

remaining ineffective assistance claims.

      Phillips now seeks a certificate of appealability granting

him     permission     to     appeal    the      district    court’s       rulings     on

procedural default and ineffective assistance of counsel.                            For

the following reasons, we deny a certificate of appealability

and dismiss the appeal.

      A final order in a § 2254 proceeding is                        not     appealable

unless    a    circuit      justice    or   judge    issues    a     certificate       of

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appealability.             28       U.S.C.               § 2253(c)(1)(A)             (2012).         A

certificate         of     appealability               will     not     issue        absent          “a

substantial         showing       of        the        denial     of     a     constitutional

right.”       28       U.S.C.     § 2253(c)(2)              (2012).     When    the       district

court     denies       relief     on        the     merits,      a     prisoner        satisfies

this     standard        by demonstrating that reasonable jurists would

find      that      the     district               court’s       assessment               of        the

constitutional           claims        is    debatable          or     wrong.         Slack         v.

McDaniel,        529      U.S.      473,           484      (2000);     see     Miller-El            v.

Cockrell, 537 U.S. 322, 336-38 (2003).

       When      the     district        court         denies    relief        on     procedural

grounds,      the        prisoner           must       demonstrate        both        that          the

dispositive        procedural          ruling          is    debatable,        and     that         the

petition      states       a      debatable            claim    of      the    denial          of    a

constitutional right.              Slack, 529 U.S. at 484-85.

       Under this standard, we begin with Phillips’ request to

appeal     the     district       court’s          ruling       on     procedural         default.

Procedural       default        occurs      if     a    petitioner      “fails       to    exhaust

available state remedies and ‘the court to which the petitioner

would be required to present his claims in order to meet the

exhaustion requirement would now find the claims procedurally

barred.’”        Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998)

(quoting Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991)).                                        To

exhaust state remedies, a petitioner must fairly present the

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substance of a claim to the state’s highest court.                                  Id.    A

petitioner may overcome a procedural default by showing either

“cause for the default and actual prejudice as a result of the

alleged violation of federal law” or “that failure to consider

the    claim[]       will    result       in       a     fundamental      miscarriage     of

justice.”      Coleman, 501 U.S. at 750.

       The district court accepted the magistrate judge’s finding

that Phillips’ state certiorari petition did not discuss his

claim that counsel failed to review physical evidence with him.

We    agree   with    that       finding.          The      discussion    section    of   the

certiorari       petition         did   not        mention      showing      Phillips     the

physical      evidence      or    refer   to       the      towel   soaked   with   Roman’s

blood.     Although the petition argued that trial counsel did not

discuss trial strategy with Phillips, that argument concerned

counsel’s      strategy      for    Willis’        admissions        of   guilt,    not   the

physical evidence.               Because the certiorari petition cannot be

read to encompass the claim, Phillips failed to fairly present

it to South Carolina’s highest state court.                          The South Carolina

Supreme Court has denied the certiorari petition, and Phillips

cannot now raise the claim in state court.                           See S.C. Code Ann.

§ 17-27-90 (2014).           Phillips does not argue cause and prejudice

or a fundamental miscarriage of justice, and the record does not

reveal     any   basis       for    Phillips           to    overcome     his   procedural




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default.       Thus, the district court did not err in its ruling on

procedural default.

       Next,       we    reject     Phillips’          request   for   a    certificate        of

appealability for his remaining claims of ineffective assistance

of    counsel,          which    stem     from     counsel’s     strategy        for      Willis’

admissions         of     guilt.          To      prove    ineffective       assistance         of

counsel,       a        petitioner        must      show:        (1)       “that     counsel’s

performance         was         deficient,”        and     (2)   “that       the        deficient

performance prejudiced the defense.”                         Strickland v. Washington,

466    U.S.    668,        687     (1984).          A     petitioner   proves        deficient

performance by showing that “counsel’s representation fell below

an    objective          standard       of     reasonableness.”            Id.     at     688-89.

Courts presume attorneys engage in reasonable conduct and rely

on “sound trial strategy.”                   Id. at 689 (internal quotation marks

omitted).          Prejudice requires “a reasonable probability that,

but    for    counsel’s          unprofessional           errors,    the    result        of   the

proceeding would have been different.”                       Id. at 687.

       Regarding deficient performance, Phillips argues that the

district court should not have accepted trial counsel’s claim

that he strategically declined to investigate or call Willis or

inmates who         were        willing      to   testify     that   Willis      admitted      to

killing       Roman.            Alternatively,           Phillips    argues        that     trial

counsel’s strategy was unreasonable.




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         We   reject    both     arguments.               First,     the    district      court

deferred to the state postconviction court’s finding that trial

counsel credibly testified about his strategy.                             A federal habeas

court     cannot    overturn        a    state      court’s        credibility     judgments

absent “stark and clear” error.                     Cagle v. Branker, 520 F.3d 320,

324 (4th Cir. 2008) (citing 28 U.S.C. § 2254(e)(1)).                                “Indeed,

‘federal       habeas     courts         [have]       no     license       to    redetermine

credibility of witnesses whose demeanor has been observed by the

state trial court, but not by them.’”                        Id. (quoting Marshall v.

Lonberger, 459 U.S. 422, 434 (1983)).

         Phillips argues that the state court committed a stark and

clear     error    because      it      could       not    have     believed     that     trial

counsel strategically declined to pursue witnesses with evidence

of   a    third    party’s     guilt      when,      according       to    Phillips,      trial

counsel did pursue such a defense.                         For example, trial counsel

moved for a continuance in part to contact the inmates, and he

attempted to introduce Willis’ signed admission at trial.

     Trial counsel’s pretrial attempts to pursue a third-party

strategy,      however,      came       before      he    researched       the   third-party

guilt     defense.       Moreover,         while         trial     counsel      attempted   to

introduce Willis’ written statement, even arguing that it showed

third-party        guilt,      that     single,          ill-fated    attempt      does     not

evidence an entire trial strategy.                          Thus, those facts do not




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show a stark and clear error in the state court’s credibility

findings.    See Cagle, 520 F.3d at 324.

     Second, trial counsel’s strategy was reasonable.                         Phillips

argues    that   it    could   not    have       been     reasonable      because      it

resulted from a misunderstanding of hearsay and the third-party

guilt defense and a lack of investigation.                       Phillips’ argument

regarding hearsay presumes that, if counsel had called Willis to

testify, Willis would have invoked his Fifth Amendment privilege

against self-incrimination, thereby permitting counsel to admit

Willis’    out-of-court    admissions           of    guilt.      However,     as     the

district court recognized, Willis could have elected to testify

against Phillips.      Avoiding that risk was sound trial strategy.

     Phillips     has     also       not        shown      that     trial      counsel

misunderstood the third-party guilt defense.                      Trial counsel and

Phillips    similarly     described        the        defense,    and    contrary      to

Phillips’   assertion,     trial     counsel          considered       more   than    the

strength of the state’s case when he rejected the defense.                            He

also considered the potentially fatal weaknesses of Phillips’

third-party guilt evidence, which included Willis’ conflicting

statements that sometimes supported the State’s case.

     Finally, Phillips claims that trial counsel could not have

reasonably decided to forgo a third-party guilt defense without

investigating    the    inmates      who       were    willing    to    testify      that

Willis had admitted setting the fire that killed Roman.                              “The

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Sixth   Amendment,           however,    does      not   always       compel       counsel    to

undertake interviews and meetings with potential witnesses where

counsel    is    familiar       with     the    substance       of    their        testimony.”

Huffington v. Nuth, 140 F.3d 572, 580 (4th Cir. 1998) (finding

counsel’s       performance       reasonable        when     counsel         did    not    call

witnesses    who       would    inculpate       defendant’s       codefendant         because

counsel     could       review         the     witnesses’       testimony           from     the

codefendant’s trial); see also Strickland, 466 U.S. at 690-91

(“[S]trategic           choices         made       after     less        than        complete

investigation          are    reasonable        precisely       to     the     extent      that

reasonable      professional        judgments        support      the    limitations          on

investigation.”).              Here,    before      trial,      counsel       had    received

Willis’ signed admission and at least two letters from inmates

describing Willis’ admissions of guilt.                      Counsel therefore knew

what the witnesses would have testified to, and after assessing

the statements and reviewing the law, he reasonably decided not

to pursue further investigation.                    Thus, Phillips has failed to

rebut the presumption of reasonableness afforded to counsel’s

conduct.         See    Strickland,          466    U.S.   at     689.         Accordingly,

Phillips has not established deficient performance.

     We     also       conclude        that     Phillips        has     not        established

prejudice.        At trial, three witnesses indicated that Phillips

either lit the fire that killed Roman or was at least involved

in Roman’s death despite Phillips’ insistence that he spent the

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evening   of   the   fire   away   from       Willis   and       Roman.     Moreover,

Willis’ statements taking sole responsibility would have lacked

credibility if admitted because Willis made several conflicting

statements.     Thus, Phillips has not shown that had trial counsel

pursued   a    third-party    guilt      defense,      the        jury    would   have

returned a verdict of not guilty.             See id. at 687.

      In sum, our review of the record shows that Phillips has

not   made     the     requisite    showing        for       a     certificate     of

appealability.         Accordingly,           we   deny      a     certificate      of

appealability    and    dismiss    the       appeal.   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.

                                                                            DISMISSED




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