holding that “failure to object to any aspect of the prosecutor’s egregiously improper closing argument was objectively unreasonable” where prosecutor called the defendant a liar, stated the victim and her family were “absolutely believable,” misrepresented the doctor’s testimony concerning the physical evidence, and made derogatory remarks and arguments based on “bad character”
How later courts described this case
- holding that “failure to object to any aspect of the prosecutor’s egregiously improper closing argument was objectively unreasonable” where prosecutor called the defendant a liar, stated the victim and her family were “absolutely believable,” misrepresented the doctor’s testimony concerning the physical evidence, and made derogatory remarks and arguments based on “bad character”
- finding prosecutor’s suggestion improper that child rape defendant “regularly drank - 17 - Case Nos. 13-1375/1387 United States v. Johnson, et al. alcohol illegally by passing himself off as being over twenty-one years of age—a claim that in no way relates to the crime charged” because it emphasized the defendant’s “bad character”
- holding that trial counsel’s failure to object to repeated and egregious prosecutorial misconduct was professionally unreasonable and resulted in prejudice to the petitioner; state court’s finding that counsel provided effective assistance was an “unreasonable application” of Strickland v. Washington
- finding prosecutor’s suggestion improper that child rape defendant “regularly drank alcohol illegally by passing himself off as being over twenty-one years of age — a claim that in no way relates to the crime charged” because it emphasized the defendant’s “bad character”
Written by the judges who cited it.
The opinion
SILER, Circuit Judge,
dissenting.
I do not think that the Ohio Court of Appeals unreasonably applied clearly established Supreme Court precedent under AEDPA, 28 U.S.C. § 2254 (d)(1). The majority correctly stated that the standard for ineffective assistance of counsel is clearly established in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), and that the Ohio Court of Appeals appropriately chose to apply Strickland when it denied relief in this case on direct appeal in State v. Hodge, No. 98CA007056, 2000 WL 1533917 (Ohio Ct.App. Oct. 18, 2000) (per curiam) (unpublished).
The majority also correctly quotes the application of the standard under 28 U.S.C. § 2254 (d)(1) from Williams v. Taylor, 529 U.S. 362, 412-13 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000). I suggest we add from that opinion that:
[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.
Id. at 411 , 120 S.Ct. 1495 . From this point on, my opinion diverges from the majority.
The majority finds ineffective assistance by counsel’s failing to object during closing arguments to two types of statements by the prosecutor: (1) expressions of personal beliefs as to the veracity of witnesses, and (2) derogatory remarks about the defendant. In the first category, the majority finds fault with the statements that Hodge was “lying to extricate himself from what he’s done” and that “Consuela Fenn is absolutely believable, her family is absolutely believable.”
On this question, the Ohio Court of Appeals was correct. The prosecutor was contrasting the witnesses for the prosecution and the defense. They were not statements of personal belief. The prosecutor did not say, “I know he is lying” or “I know Fenn is truthful.” These statements also came in rebuttal, after defense counsel had suggested that the whole case rested on the credibility of Fenn’s testimony.
The majority is apparently offended by any references to lying or the truth in the summation by the prosecution. It seems to be suggesting that in a close case, the use of those words calls for a conclusion of ineffectiveness when counsel does not object thereto.
For its authority, the majority cites, inter alia, United States v. Young, 470 U.S. 1, 17-19 , 105 S.Ct. 1038 , 84 L.Ed.2d 1 (1985), and Berger v. United States, 295 U.S. 78, 86-88 , 55 S.Ct. 629 , 79 L.Ed. 1314 (1935). But the language in each shows the prosecutor’s personal beliefs in a wit *397 ness’s testimony. For instance, in Young , the prosecutor “told the jury that he was giving his ‘personal impressions’ ” that the defendant intended to commit a fraud. Young, 470 U.S. at 17 , 105 S.Ct. 1088 . The Supreme Court found no reversible error, because the prosecutor was not suggesting “that he was relying on information outside the evidence presented at trial.” Id. at 19 , 105 S.Ct. 1038 . Moreover, in Berger , the prosecutor argued his belief when he suggested he had personal knowledge of what a witness, Goldie Goldstein, knew when she testified. Berger, 295 U.S. at 87-88 , 55 S.Ct. 629 . There is no suggestion herein that the prosecutor had any inside knowledge when he said that Hodge was a liar and that Fenn was believable. To successfully argue his case, the prosecutor must show the jury how it would find the guilt of the accused, and he must contrast the defendant’s testimony with that of Fenn, the only eyewitness. The prosecution had to make an argument in that vein, for a conviction required the jury to disbelieve Hodge. It may not have been required to have believed Fenn in order to find Hodge guilty, because there was some corroboration to her testimony, but defense counsel directed a lot of his argument against her credibility.
The majority cites to the cases of United States v. Carroll, 26 F.3d 1380, 1387, 1389 (6th Cir.1994), and United States v. Krebs, 788 F.2d 1166, 1176-77 (6th Cir.1986). Krebs criticizes the language by the prosecutor that “I want to suggest to you that in this trial testimony she was telling the truth .... Basically, she had no reason to lie.” Krebs, 788 F.2d at 1176 . In Krebs , defense counsel objected to the statements, but the district court did not admonish the jury, reasoning that it would “cause additional harm.” Id. at 1177 . Nevertheless, we said that “in the exercise of our supervisory powers,” we had to determine whether the conviction “should be reversed because of the improper conduct of the prosecutor.” Id. We concluded that the misconduct was harmless. Id. In contrast, we found in Carroll that the error was not harmless, although the “impropriety was not flagrant.” Carroll, 26 F.3d at 1390 . Of course, all of these cases cited by the majority were on direct appeal and under the supervisory powers of our court. This case, in contrast, comes as a habeas corpus petition and requires us to approach it as required under AEDPA.
The majority cites also to State v. Smith, 14 Ohio St.3d 13, 470 N.E.2d 883, 885 (Ohio 1984) (per curiam), that the prosecutor could not express his personal belief or opinion as to the credibility of witnesses or the guilt of the accused. But the Ohio Court of Appeals in this proceeding knew of that decision when it followed State v. Mundy, 99 Ohio App.3d 275 , 650 N.E.2d 502, 520 (1994), citing State v. Price, 60 Ohio St.2d 136 , 398 N.E.2d 772 (1979), and found, as in Mundy , that the prosecution was not expressing its personal opinion about the credibility of the witnesses.
The majority criticizes the argument by the prosecution in suggesting that the jury would have to find that all of the family witnesses would be liars, in order to acquit. That obviously is an exaggeration. However, the jury in this case was intelligent enough to know that most of the evidence came down to Fenn’s testimony. Even defense counsel in his closing argument stated: “Mr. Rosenbaum is, again, correct, it comes down to one witness, Connie Fenn.” Defense counsel was able to take advantage of the prosecution to show that some of the other testimony was not that material. He went on to state: “If you believed that witness, Connie Fenn, that she saw him raping the daughter, knowing all these other things you now know about her, her credibility, et cetera, *398 then yep, you must find Demarkus Hodge guilty.” There are few cases in which one would not find some part of a closing argument to be objectionable, especially in a volatile trial involving the rape of an infant.
The majority also finds ineffective assistance by defense counsel at trial in failing to object to certain derogatory remarks by the prosecution. I believe that the three remarks quoted by the majority were improper, at least in part, so the trial court should have sustained an objection to them, had objections been made.
The statement that Hodge could pass for a twenty-three-year-old is a valid argument, as the jury could see what he looked like. The part about “how many he’s had to drink, in this period of emancipation as an adult,” describes that he could pass as an adult. However, the clause that he may have drunk alcoholic beverages is objectionable, because it has no basis in the record, but it is relatively non-prejudicial.
The statement that Hodge’s idea of supporting himself by getting “my share of supplemental income or [a] share of my family’s Social Security Supplemental Income” makes little sense. I suppose it suggests Hodge was a welfare deadbeat. But, again, there is no basis in the record for that conclusion, so the remark was objectionable. Nevertheless, it has little or no prejudice attached to it, for Fenn herself may have been on welfare. Thus, if it suggests Hodge was not credible because he was a welfare deadbeat, it would likely apply also to Fenn.
The third remark: “[H]ow would you like to put yourself in the place of someone that might run into [Hodge] at night?” also was objectionable and was the closest to being prejudicial, but by itself or in conjunction with the other remarks, did not amount to prejudice sufficient to warrant a finding of ineffective assistance of counsel. The Ohio Court of Appeals found that the trial was fair and that even in the absence of any possible prosecutorial misconduct, the jury would have found Hodge guilty anyway. It also gave some weight to the trial court’s instructions to the jury that counsel’s statements were not evidence. Nevertheless, the issues before this court are not whether the prosecutor committed misconduct and whether the trial court erred. The issues are whether defense counsel was ineffective under the standards of Strickland and whether the Ohio Court of Appeals unreasonably applied Strickland to this case.
Hodge carries a heavy burden of proof here. In Bell v. Cone, 535 U.S. 685 , 122 S.Ct. 1843 , 152 L.Ed.2d 914 (2002), the Supreme Court held:
For [petitioner] to succeed, however, he must do more than show that he would have satisfied Strickland’s test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. Rather, he must show that the [state court] applied Strickland to the facts of his case in an objectively unreasonably manner.
Id. at 698-99 , 122 S.Ct. 1843 (internal citations omitted). I do not believe that Hodge has carried that burden here.
As the majority does not discuss other issues raised, I also do not. However, assuming there were no other issues of merit raised, I would uphold the decisions of the magistrate judge and the district court in finding there is no basis for the issuance of a writ of habeas corpus, because the Ohio Court of Appeals did not *399 unreasonably apply established Federal law under Strickland .