UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 16-6424


JAMES GUNNELLS, a/k/a James Allen Gunnells,

                Petitioner - Appellant,

          v.

LARRY CARTLEDGE, Warden, Perry Correctional Institution,

                Respondent - Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Anderson.    Mary G. Lewis, District Judge.
(8:15-cv-01142-MGL)


Submitted:   September 30, 2016           Decided:   October 12, 2016


Before KING, DUNCAN, and WYNN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Jeremy A. Thompson, LAW OFFICE OF JEREMY A. THOMPSON, LLC,
Columbia, South Carolina, for Appellant.    Donald John Zelenka,
Senior Assistant Attorney General, James Anthony Mabry, Assistant
Attorney General, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       James Gunnells seeks to appeal the district court’s order

accepting the recommendation of the magistrate judge and denying

relief on his 28 U.S.C. § 2254 (2012) petition.            The order is not

appealable unless a circuit justice or judge issues a certificate

of 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,

, 484 (2000); see Miller-El v. Cockrell, 

,

336-38 (2003).

       Gunnells contends that the district court erred in ruling

that    a   victim’s   identification     of   Gunnells    was   admissible.

Specifically, Gunnells argues that the district court should have

explicitly weighed the factors in Neil v. Biggers, 

(1972),     which   applies     to   out-of-court     identifications,     in

determining     whether   the    victim’s   in-court      identification   of

Gunnells was admissible, and that the district court’s failure to

conduct any substantive inquiry was erroneous.

       We conclude, however, that the proper inquiry is not whether

the district court should have explicitly evaluated the Biggers

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factors, but instead whether Biggers applies at all.                        We have

previously held that a state court’s unreasonable refusal to extend

Supreme    Court       precedent     could       constitute    an     “unreasonable

application”      of    Supreme     Court       precedent   under     § 2254(d)(1).

Green v. French, 

, 870 (4th Cir. 1998).                   However, the

Supreme Court has since abrogated Green by rejecting the principle

that a state court could be unreasonable in refusing to extend

Supreme Court precedent.           White v. Woodall, 

, 1706

(2014).

     As Gunnells noted in his response to the State’s motion for

summary judgment and in his objections to the magistrate judge’s

report and recommendation, the Supreme Court of South Carolina has

“conclude[d], as the majority of courts have, that Neil v. Biggers

does not apply to in-court identifications and that the remedy for

any alleged suggestiveness of an in-court identification is cross-

examination and argument.”           State v. Lewis, 

, 518

(S.C.    2005).        This   refusal       to    extend    Biggers    to   in-court

identifications forecloses Gunnells’ argument on federal habeas

review that Biggers applies to his case. *



     *Gunnells notes that we have in at least one instance extended
Biggers to an in-court identification.       See United States v.
Murray, 

, 1169 & n.6 (4th Cir. 1995). However, Murray
involved a direct appeal of a federal conviction. In the § 2254
context, a state court’s decision must be analyzed with respect to
Supreme Court precedent, not Fourth Circuit precedent. See 

.

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     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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