                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 15-6467


JIHAD RASHID MELVIN,

                Petitioner – Appellant,

           v.

FRANK L. PERRY; FELIX TAYLOR,

                Respondents – Appellees.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:13-hc-02269-F)


Argued:   September 21, 2016             Decided:   October 25, 2016


Before KING, SHEDD, and THACKER, Circuit Judges.


Affirmed by unpublished opinion. Judge Shedd wrote the opinion,
in which Judge King and Judge Thacker joined.


ARGUED: Mary Elizabeth McNeill, NORTH CAROLINA PRISONER LEGAL
SERVICES,  INC.,   Raleigh,  North  Carolina,   for  Appellant.
Clarence Joe DelForge, III, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellee.   ON BRIEF: Roy
Cooper, Attorney General of the State of North Carolina, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Jihad     Melvin     appeals       the       denial    of     his   federal      habeas

petition        pursuant     to    28   U.S.C.         § 2254.       For    the     following

reasons, we affirm.

                                                I

       A    North     Carolina     Jury      convicted        Melvin       of    first-degree

murder and accessory after the fact to murder. The Supreme Court

of North Carolina affirmed Melvin’s conviction. In doing so, the

court summarized the facts pertaining to the underlying crimes. 1

       “At      trial,      the    State        presented          evidence        that,    at

approximately 11:00 am on 21 March 2007, Melvin drove Robert

Ridges (Ridges) and Tony Cole (Cole) to the home of Ridges’

brother, Elijah. As Ridges, Cole, and Melvin were driving away

after the visit, they spotted the victim, Almario Millander.

They waved the victim over to their car, and Ridges sold him a

quantity of what was purported to be crack cocaine. As they

attempted to leave, however, the car stalled. The victim walked

over       to   the   immobilized       car,        claimed     Ridges      had     sold   him

counterfeit       crack,     and   demanded          his     money    back.      When   Ridges

denied the accusation, the victim pulled out a sawed-off shotgun

and pointed it at Ridges, who was unarmed. Melvin was able to



       1In this            summary,     we      have       substituted          “Melvin”   for
“defendant.”



                                                2
restart the car and drive away with Ridges and Cole without

shots being fired.

       “In the aftermath of the encounter, an angry Ridges ‘swore

on his son’ that he was going to ‘get’ the victim. Ridges left

Cole and Melvin for a time, then returned. As the three later

‘chilled’ and smoked ‘weed’ at a friend’s house, Cole realized

that Ridges had obtained a gun when he saw Ridges ‘pull[] it

out’ in Melvin’s presence. That same evening, Melvin drove as

he, Ridges, and Cole looked for the victim. They came across an

individual named Ken Adams, who told them the victim was at

Adams’s residence. Cole exhorted Ridges: ‘[G]o in his house, you

going to kill this man, you got to kill the other guy too. Can’t

be     no   eyewitnesses.’     Melvin    agreed    with   Cole   but     Ridges

responded that the victim was the only one he wanted. During

this    discussion,   Melvin    briefly     took   possession    of    Ridges’s

pistol, but Ridges retrieved it. Ridges, Cole, and Melvin exited

the car and walked toward Adams’s residence. Melvin climbed the

steps to the rear of the residence, while Ridges entered through

the back door. Adams, who was inside, saw Ridges open fire on

the victim. As the victim tried to escape through a window,

Ridges shot him twice, hitting the victim behind one knee and

inflicting a fatal wound to the victim’s chest.

       “Melvin then drove Ridges and Cole from the scene. They

stopped at a gas station where Cole and Ridges made purchases

                                        3
while    Melvin        waited      in    the     car.      After       they    left,       a   law

enforcement officer attempted to stop Melvin’s car using his

blue    lights       and    siren.      Melvin      turned      onto     a    dirt   road      and

accelerated, raising a cloud of dust that caused the pursuing

officer to drop back. The car stalled again, so Melvin pulled to

the side of the road, and he, Ridges and Cole fled into nearby

woods. The officer, who was acting on information indicating

only that the vehicle’s registration was faulty, stopped at the

abandoned car, but, unable to find the occupants and seeing no

evidence of a crime, left after a short wait.

       “Once     the       officer      departed,         Melvin,       Ridges,      and       Cole

returned to the car, wiped it down to remove fingerprints, and

attempted to set it on fire. They then dismantled the murder

weapon    and    wiped      all    fingerprints           off    the    pieces.”     State      v.

Melvin, 707 S.E.2d 629, 630–31 (N.C. 2010) (“Melvin I”).

                                               II

       In 2007, a North Carolina grand jury indicted Melvin for

one    count    of    first-degree        murder         and    one    count   of    accessory

after the fact to murder. Because no evidence indicated that

Melvin had fired the shots that killed the victim, the murder

charge was based on the theory that Melvin was an accomplice or

acted in concert with the shooter.

        Pertinent to this appeal, at a pretrial hearing, Melvin’s

trial    counsel       moved      the   court       to   sever     the   offenses      on      the

                                                4
grounds that first-degree murder and accessory after the fact

are legally inconsistent. The trial judge acknowledged that the

charges           were     inconsistent      but       denied    the    motion      to     sever,

deciding           instead     that     the       appropriate         way     to    deal    with

inconsistent charges was to set aside one of the judgments in

the event the jury convicted Melvin of both offenses. Melvin’s

trial counsel conceded that this was the correct approach. The

jury        thereafter       convicted    Melvin         of   both     charges.      The   trial

judge        set     aside    judgment       on    the     accessory        after    the    fact

conviction and sentenced Melvin to life without parole.

        On        direct    appeal,    the    North       Carolina       Court      of   Appeals

vacated the judgment and ordered a new trial, holding that the

trial court committed plain error by failing to instruct the

jury that it could not convict Melvin of both charges. See State

v. Melvin, 682 S.E.2d 238, 246 (N.C. App. 2009) (“Melvin II”).

The    court        of     appeals    concluded        that     State    v.   Speckman,       391

S.E.2d 165, 167              (N.C. 1990), required this instruction. 2 The

court        of    appeals     found    that       plain      error     justified        vacating



        2
       In Speckman, the jury convicted the defendant of two
mutually   exclusive  offenses   —   embezzlement and  obtaining
property by false pretenses. The Supreme Court of North Carolina
held that, although mutually exclusive offenses “may be joined
for trial when they are alleged to arise from the same act or
transaction,” the court “must instruct the jury that it may
convict the defendant only of one of the offenses or the other,
but not of both.” 391 S.E.2d at 167.



                                                   5
Melvin’s convictions because “[i]f properly instructed, the jury

might have determined that [he] was guilty of accessory after

the fact to murder and not guilty of the murder itself.” Melvin

II, 682 S.E.2d at 244.

      Thereafter, the Supreme Court of North Carolina reversed

the court of appeals, holding that Melvin did not meet the high

burden under plain error review and that it is a “rare case in

which     an   improper     instruction      will   justify    reversal     of    a

criminal conviction when no objection has been made in the trial

court.” Melvin I, 707 S.E.2d at 633. The court reasoned that the

trial     court    erred,    but   the   error   did   not    justify   vacating

Melvin’s convictions under plain error review because “in light

of the overwhelming evidence of first-degree murder, [it] [could

not] conclude that a different result would have been probable

if the trial court had given a proper instruction.” Id. at 633–

34.

      Melvin subsequently filed a Motion for Appropriate Relief

(“MAR”) in state superior court. In his MAR, Melvin alleged that

he received ineffective assistance of counsel when his trial

attorney failed to request the proper jury instruction under

Speckman. 3       Melvin    contended    that    his   counsel’s    error        was


      3Melvin has never contended that, absent counsel’s error,
the evidence was not sufficient to convict him of either
offense.


                                         6
prejudicial      because,       had      counsel      successfully        requested     the

Speckman instruction, the jury would have been forced to choose

between the two charges. If the jury had known they could not

convict Melvin of both offenses, he argued, there would be a

reasonable probability that the jury would have found him guilty

of accessory after the fact but not murder. The superior court

denied the MAR, holding that Melvin had “not shown that his

counsel made errors so serious that he was not functioning as

the    counsel     guaranteed       by    the      Sixth    Amendment      or    that   his

performance fell below an objective standard of reasonableness.”

J.A.   116–117.     The       MAR   court      also     held    that    Melvin    was   not

prejudiced because “[t]here is no reasonable probability that,

if counsel had not committed the errors asserted by [Melvin],

that the trial result would have been different.” Id. at 116.

       Melvin then filed a petition for writ of habeas corpus in

federal    court.       The     district        court      dismissed      the    petition,

holding    that     the       state      superior       court     reasonably      applied

Strickland    v.    Washington,          466    U.S.    668     (1984),    in    rejecting

Melvin’s     ineffective        assistance         of    counsel       claim.    Generally

speaking, the court determined that the MAR court was correct in

determining      that    trial      counsel’s       representation        did    not    fall

below an objective standard of reasonableness and that Melvin

was not prejudiced.



                                               7
                                           III

        We review de novo the district court’s application of the

standards of § 2254(d) to the findings and conclusions of the

MAR court. Robinson v. Polk, 438 F.3d 350, 354–55 (4th Cir.

2006). Under this review, our inquiry is limited to an analysis

of    whether    the     MAR   court’s     adjudication         of     Melvin’s    federal

claims “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

“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)(1)–(2).

       The “contrary to” and “unreasonable application of” clauses

of     § 2254(d)(1)        have      meanings          which     may        be   satisfied

independently of each other. Williams v. Taylor, 529 U.S. 362,

404–05 (2000). A state court decision is contrary to clearly

established      federal       law   “if   the     state       court    applies    a    rule

different from the governing law set forth in [Supreme Court]

cases, or if it decides a case differently than [the Supreme

Court] on a set of materially indistinguishable facts.” Bell v.

Cone, 535 U.S. 685, 694 (2002). A state court decision is an

unreasonable application of clearly established federal law “if

the    state     court     correctly       identifies          the     governing       legal

principle       from     [Supreme     Court]       decisions          but    unreasonably

                                             8
applies it to the facts of the particular case.” Id. Under this

standard, a state court’s decision will not be disturbed where

it    is   premised         on     an      incorrect,        but     not    unreasonable,

application of federal law. Williams, 529 U.S. at 440. This “is

a    difficult        to    meet     and      highly      deferential       standard      for

evaluating state-court rulings, which demands that state-court

decisions    be       given      the     benefit       of    the    doubt.”      Cullen    v.

Pinholster, 563 U.S. 170, 171 (2011) (internal punctuation and

citations omitted).

      As noted, Melvin contends that he was denied his right to

effective assistance of counsel because his trial counsel was

ineffective in that he failed to request the appropriate jury

instruction. “The essence of an ineffective-assistance claim is

that counsel’s unprofessional errors so upset the adversarial

balance    between         defense      and    prosecution         that    the   trial    was

rendered unfair and the verdict rendered suspect.” Kimmelman v.

Morrison, 477 U.S. 365, 374 (1986). In other words, the “result

of the proceeding [must be] fundamentally unfair or unreliable.”

Lockhart v. Fretwell, 506 U.S. 364, 369 (1993).

      In    Strickland,            the      Court      identified          two    necessary

components       of    an     ineffective-assistance               claim:     “First,     the

defendant must show that counsel’s performance was deficient.

This requires showing that counsel made errors so serious that

counsel    was    not      functioning        as    the     ‘counsel’      guaranteed     the

                                               9
defendant by the Sixth Amendment. Second, the defendant must

show that the deficient performance prejudiced the defense. This

requires showing that counsel’s errors were so serious as to

deprive the defendant of a fair trial, a trial whose result is

reliable.” 466 U.S. at 687.

      For     purposes   of    this    appeal,    the    “pivotal    question       is

whether the state court’s application of the Strickland standard

was   unreasonable.”         Harrington    v.    Richter,    562    U.S.    86,    101

(2011).      Under   § 2254(d),      an   unreasonable      application      differs

from an incorrect application of federal law, and a state court

“must   be    granted    a    deference    and    latitude    that    are    not    in

operation when the case involves review under the Strickland

standard itself.” Id.

      Although       Strickland        requires      a      defendant       claiming

ineffective     assistance      to    establish    deficient    performance        and

prejudice, the Supreme Court explained that “there is no reason

for a court deciding an ineffective assistance claim to . . .

address both components of the inquiry if the defendant makes an

insufficient showing on one,” and “[i]f it is easier to dispose

of an ineffectiveness claim on the ground of lack of sufficient

prejudice, . . . that course should be followed.” 466 U.S. at

697. Consistent with the Court’s suggested approach, we will

proceed directly to the prejudice component.



                                          10
       To establish prejudice under Strickland, a defendant “must

show    that    there      is   a   reasonable   probability     that,   but     for

counsel’s unprofessional errors, the result of the proceeding

would    have       been   different.     A    reasonable   probability     is    a

probability sufficient to undermine confidence in the outcome.”

466    U.S.    at   694.    Under    Strickland,   “[i]t    is   not   enough    for

[Melvin] to show that the errors had some conceivable effect on

the outcome of the proceeding,” id. at 693, and “the question is

not whether a court can be certain counsel’s performance had no

effect on the outcome or whether it is possible a reasonable

doubt might have been established if counsel acted differently,”

Harrington, 562 U.S. at 111. In short, “Strickland asks whether

it is ‘reasonably likely’ the result would have been different,”

and the “likelihood of a different result must be substantial,

not just conceivable.” Id. at 111–12.

       Applying this standard of review, we are comfortable that

the MAR court did not unreasonably apply Strickland. The MAR

court weighed the evidence, concluding that the ample evidence

of murder indicated that a properly instructed jury would have

still convicted Melvin of murder. Namely, Melvin was involved in

the original confrontation between the victim and the shooter.

He heard the shooter swear that he would “get” the victim and

then drove the shooter around in their search for him. Melvin

then encouraged the shooter to kill another man in addition to

                                          11
the victim so that there would be no witnesses. He drove the

shooter to the scene of the crime, walked up the stairs to the

back door of the residence, and stood outside as Ridges shot the

victim.    The     MAR   court    reiterated    the   North    Carolina        Supreme

Court’s conclusion that “[t]he jury, given the opportunity to

consider separately the offenses of murder and accessory after

the fact, convicted defendant of both, indicating its intent to

hold defendant accountable to the fullest extent of the law.”

Melvin I, 707 S.E.2d at 633–34. J.A. 116. Given that the jury

was properly charged on the elements of murder and convicted

Melvin     based    on    more    than    sufficient    evidence,        the    state

superior court did not unreasonably apply Strickland when it

determined       that    Melvin   was    not   prejudiced     by   his    counsel’s

error. 4


     4 Melvin also contends that he was prejudiced by counsel’s
error because it resulted in the application of a more rigorous
appellate standard of review on direct appeal. In North
Carolina, the standard of review is plain error when a party
does not object to an omission from the jury charge. However, if
counsel properly objects and the alleged error does not violate
the defendant’s rights under the United States Constitution, the
defendant   must  only  prove   that  “there  is   a  reasonable
possibility that, had the error in question not been committed,
a different result would have been reached at the trial out of
which the appeal arises.” N.C. Gen. Stat. § 15A-1443(a) (2013)
(emphasis added). Even under the more deferential “reasonable
possibility” standard of review, Melvin was still not prejudiced
by counsel’s error. Given the overwhelming evidence presented at
trial, there is no reasonable possibility that, had counsel
requested the Speckman instruction, Melvin would not have been
convicted of murder.


                                          12
                                       IV

       “As a condition for obtaining habeas corpus from a federal

court, a state prisoner must show that the state court’s ruling

on the claim 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, 562 U.S. at 103. We hold

that   Melvin   has   fallen   well    short    of   meeting   this   standard.

Therefore, we affirm the district court’s dismissal of Melvin’s

petition for writ of habeas corpus.

                                                                       AFFIRMED




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