“when the comments are limited in nature and could not have affected the verdict, we have declined to reverse”
How later courts described this case
- “when the comments are limited in nature and could not have affected the verdict, we have declined to reverse”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JEDADYA FERGUSON,
Civil No. 2:19-cv-00061-JR
Petitioner,
FINDINGS AND RECOMMENDATION
v.
MR. T. BOWSER,
Respondent.
RUSSO, Magistrate Judge.
Petitioner, an adult in custody at the Two Rivers Correctional Institution, brings this
habeas corpus action pursuant to 28 U.S.C. 2254. For the reasons that follow, the court
should deny the Amended Petition for Writ of Habeas Corpus (ECF No. 20).
BACKGROUND
1 - FINDINGS AND RECOMMENDATION
On May 14, 2012, a Klamath County grand jury indicted petitioner on one count of
Assault in the First Degree, three counts of Assault in the Third Degree, three counts of Criminal
Mistreatment in the First Degree, and one count of Assault in the Fourth Degree Constituting
Domestic Violence. Resp. Exh. 102. The First and Third Degree Assault and Criminal
Mistreatment charges arose from petitioner’s repeated assaults on his girlfriend’s
seven-month-old son, and the Assault Four charge from his assault on his girlfriend. Resp. Exh.
102.
The case was tried to a jury. Petitioner did not testify at trial. During closing
argument, the prosecutor stated that the only person who knew what happened to the infant was
petitioner, “[t]he baby can’t tell you.” Tr. 379. Petitioner’s trial attorney moved for a mistrial,
which the trial judge denied outside the presence of the jury:
DEFENSE COUNSEL: Your honor, when Counsel says, “We don’t know what
happened, the only person that knows what happened,” and turns and points to the
Defendant and says, “It’s him,” she’s in effect telling the jury that he needs to be
testifying, he has something to prove, and so on and so forth. And I think that
kind of a comment requires a mistrial.
PROSECUTOR: Your Honor, it wasn’t given in that context. That the baby
can’t talk. The baby can’t tell them. [The doctor who examined the baby]
doesn’t know what happened. The only people that can know is him and the
baby.
DEFENSE COUNSEL: And there’s two witnesses and he needs to tell us.
THE COURT: Your motion is denied.
DEFENSE COUNSEL: Okay.
THE COURT: But you be really, really, really careful. Get out of that Mack
truck.
2 - FINDINGS AND RECOMMENDATION
Tr. 379-80. The trial judge subsequently instructed the jury as follows: “A defendant has an
absolute constitutional right not to present any evidence; therefore, a defendant’s decision not to
present any evidence cannot be considered as an indication of guilty. It should not be
commented on, or in any way considered by you in your deliberations.” Tr. 418.
The jury convicted petitioner on two counts each of Assault in the Third Degree and
Criminal Mistreatment, and acquitted petitioner on the remaining charges. Resp. Exh. 101.
The trial court relied on several aggravating factors to sentence petitioner to durational departure
sentences totaling 240 months of imprisonment. Resp. Exh. 101.
Petitioner filed a direct appeal, assigning error to the denial of the motion for mistrial and
to the admission of other acts evidence under Oregon evidence rules. Resp. Exh. 103. The
Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied
review. State v. Ferguson, 265 Or. App. 478 (2014), rev. denied, 356 Or. 767 (2015).
Petitioner then sought state post-conviction relief (“PCR”). Following an evidentiary
hearing, the PCR trial court denied relief. Petitioner appealed, and the Oregon Court of Appeals
affirmed without opinion and the Oregon Supreme Court denied review. Ferguson
Amsberry, 289 Or. App. 822, rev. denied, 363 Or. 104 (2018).
Petitioner now seeks habeas corpus relief pursuant to 28 U.S.C. § 2254 in this court. In
his Amended Petition for Writ of Habeas Corpus, petitioner alleges one claim for relief:
Petitioner is unlawfully imprisoned because petitioner’s conviction resulted from a
trial in which petitioner was deprived of the right against compelled
self-incrimination and the right to a fair trial, in violation of the Fifth, Sixth, and
Fourteenth Amendments to the Constitution of the United States, when the trial
court denied petitioner’s motion for a mistrial after the prosecutor commented in
closing argument on petitioner’s decision not to testify at trial.
3. - FINDINGS AND RECOMMENDATION
Respondent argues the state court decision denying the motion for mistrial is entitled to
deference because it was not contrary to or an unreasonable application of clearly established
federal law.
LEGAL STANDARDS
A federal court may not grant a habeas petition regarding any claim “adjudicated on the
merits” in state court, unless the state court decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme Court
of the United States.” 28 U.S.C. § 2254(d)(1)._ A state court decision is “contrary to” federal
law if it fails to apply the correct Supreme Court authority, or if it reaches a different result in a
case with facts “materially indistinguishable” from Supreme Court precedent. Brown v. Payton,
544 U.S. 133, 141 (2005). A state court decision is an “unreasonable application” of clearly
established federal law if the state court identifies the correct legal principle but applies it in an
“objectively unreasonable manner.” Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per
curiam); see also Early v. Packer, 537 U.S. 3, 11 (2002) (per curiam) (state court decisions may
be set aside “only if they are not merely erroneous, but ‘an unreasonable application’ of clearly
established federal law, or based on ‘an unreasonable determination of the facts’”).
DISCUSSION
The Fifth Amendment provides that “No person shall be compelled in any criminal case
to be a witness against himself.” The Fifth Amendment self-incrimination privilege “forbids
either comment by the prosecution on the accused’s silence or instructions by the court that such
silence is evidence of guilt.” Griffin v. California, 380 U.S. 609, 615 (1965). “While a direct
comment about the defendant’s failure to testify always violates Griffin, a prosecutor’s indirect
4 - FINDINGS AND RECOMMENDATION
comment violates Griffin only ‘if it is manifestly intended to call attention to the defendant’s
failure to testify, or 1s of such a character that the jury would naturally and necessarily take it to
be a comment on the failure to testify.” Hovey v. Ayers, 458 F.3d 892, 912 (9th Cir. 2006)
(quoting Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir. 1987)). Reversal is warranted for Griffin
error in the face of indirect comment “only ‘where such comment is extensive, where an
inference of guilty from silence is stressed to the jury as a basis for the conviction, and where
there is evidence that could have supported acquittal.” Hovey, 458 F.3d at 912 (quoting
Anderson v. Nelson, 390 U.S. 523, 524 (1968)); see also Beardslee v. Woodford, 358 F.3d 560,
588 (9th Cir. 2003) (“when the comments are limited in nature and could not have affected the
verdict, we have declined to reverse”).
Here, the prosecutor did not directly comment on petitioner’s silence. Moreover, the
prosecutor’s indirect statement was not manifestly intended to call attention to the defendant’s
failure to testify, or of such a character that the jury would naturally and necessarily take it to be a
comment on the failure to testify. Instead, a reasonable jurist could determine that the comment
would be taken as a comment on why the state’s case was necessarily circumstantial in light of
the victim’s age and inability to testify, and the state therefore did not identify with absolute
certainty the timeline of events leading up to the victim’s injury. The comment was not
extensive, and the prosecutor did not stress an inference of guilt from silence to the jury as a
basis for the conviction. As such, the denial of petitioner’s mistrial was neither contrary to nor
an unreasonable application of clearly established federal law.
Finally, any error was harmless. This court may grant habeas relief for a trial court
constitutional error only if the error “had substantial and injurious effect or influence in
5 - FINDINGS AND RECOMMENDATION
determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 635-38 (1993). As
noted above, the trial judge instructed the jury that they may not draw any inference of guilt from
the fact that petitioner did not testify. This type of instruction “tends to cure an improper
comment by the State.” Grigsby v. Williams, Case No. 2:16-cv-01886-APG-DJA, 2019 WL
5294398, at *5 (D. Nev. Oct. 18, 2019) (citing United States v. Jones, 459 F.2d 47 (9th Cir.
1972)). Considered along with the jury instructions and the evidence presented by the state, the
prosecutor’s statement did not have a substantial injurious effect or influence in determining the
verdict and was, therefore, harmless.
CONCLUSION
For these reasons, the court should DENY the Amended Petition for Writ of Habeas
Corpus and enter a judgment of DISMISSAL. The court should DENY a certificate of
appealability as Petitioner has not made a substantial showing of the denial of a constitutional
right. See 28 U.S.C. § 2253(c)(2).
This recommendation is not an order that is immediately appealable to the Ninth Circuit
Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate
Procedure, should not be filed until entry of the district court’s judgment or appealable order. The
parties shall have fourteen (14) days from the date of service of a copy of this recommendation
within which to file specific written objections with the court. Thereafter, the parties shall have
fourteen (14) days within which to file a response to the objections. Failure to timely file
objections to any factual determination of the Magistrate Judge will be considered as a waiver of
a party’s right to de novo consideration of the factual issues and will constitute a waiver of a
6 - FINDINGS AND RECOMMENDATION
party’s right to appellate review of the findings of fact in an order or judgment entered pursuant
to this recommendation.
DATED this ___8 __ day of May 2020.
(du hse
Jolie A. Russo
United States Magistrate Judge
7 - FINDINGS AND RECOMMENDATION