Opinion
CV 99-127-BR
June 26, 2001
Attorneys for Petitioner :
STEVEN T. WAX, Federal Public Defender, CHRISTOPHER J. SCHATZ, Assistant Federal Public Defender, Portland, OR
Attorneys for Respondent :
HARDY MYERS, Attorney General, LYNN DAVID LARSEN, Assistant Attorney General Department of Justice, Salem, OR
OPINION AND ORDER
Petitioner, an inmate at the Oregon State Correctional Institution, brings this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the legality of his 1992 Multnomah County Circuit Court conviction for Murder. Currently before the Court is the Petition for Writ of Habeas Corpus (#2). For the following reasons, the Petition is DENIED.
SUMMARY OF FACTS
On June 21, 1991, Petitioner was a passenger in a white Volkswagen driven by Michael Foster. The two were traveling on N.E. Beech Street near Union Avenue in northeast Portland when Foster saw Darryl Glass driving in the opposite direction. Foster had an earlier disagreement with Glass concerning Glass's conduct in connection with a fight between two women a few days before, and Foster wanted to talk with Glass. Passengers with Glass were Anthony Baker, Ricardo Branch, Eddie Horton, and Veronica Carney. Baker was sitting in the back seat on the driver's side behind Glass, Carney was sitting next to him in the back seat in the middle, Branch was on the passenger side in the back, and Horton was in front in the passenger seat.
Glass stopped his green Oldsmobile at a stop sign. When he started into the intersection, Foster pulled his Volkswagen alongside at a distance of three to four feet. Foster told Glass not to come back to his neighborhood and to watch himself next time. Although Foster had earlier told Petitioner about a problem with Glass, Petitioner did not participate in the Foster's car side statements.
Foster directed Petitioner to show Petitioner's gun to Glass. Petitioner withdrew a handgun and, at first, held it pointed up inside the car. Foster then looked to his left to make a u-turn, and, while looking away, he felt the Glass vehicle collide with the side of his Volkswagen and heard a gunshot. Foster saw Glass's car hit a telephone pole and heard Petitioner saying, "Go, go, go." As Foster pulled away, he asked Petitioner, "Did the gun go off?" Petitioner said, "Yeah, I think it did." Foster did not see Petitioner fire a shot.
While in the Glass vehicle, Anthony Baker saw a white car drive up beside Glass's vehicle. As they were traveling on Beech, Baker saw a gun come out of the passenger window of the Volkswagen. Baker ducked down in the seat. It appeared to Baker that the gun was even with Glass.
Ricardo Branch also saw the white Volkswagen pull alongside the Glass vehicle at or in the intersection of Sixth and Beech. Branch saw two black individuals in the white car. When the two vehicles were approximately five to ten feet apart, Branch saw a gun, and he ducked down. The gun came from the passenger side of the Volkswagen. According to Branch, the two cars did not touch one another. Branch heard a shot, and Glass's vehicle then ran into a telephone pole. After the vehicle hit the telephone pole, it went in reverse until it hit a fire hydrant. When Glass's vehicle came to a complete stop, Branch and the other passengers got out and left the scene.
Both Foster and Petitioner are African-American.
According to Eddie Horton, who had been seated as the front passenger in Glass's vehicle, the Glass vehicle was approaching Sixth and Beech when Glass stated, "Wait just a minute, I got to talk to this person right here" and "I got into a fight with this girl's mother yesterday." Glass began slowing down his car as it entered the intersection. When Glass's car came to a stop, Horton looked past Glass out the driver's side window and saw a revolver pointed out of the car that had come up next to Glass's vehicle. The revolver was approximately three to four feet from Glass. Horton also ducked. He heard the gun go off and felt a burn across his head as he was hit by a bullet fragment. Although Horton could not identify the person who fired the gun, he saw the person was black and male.
Cameron Ruff, 16 years old, was looking out the upstairs window of his house at the corner of Sixth and Beech when he saw the two cars enter the intersection, both heading eastbound. According to Ruff, as the vehicles were going through the intersection, the "white bug pulled up next to the green car and bumped him and then started to pull away, and the gun came out of the passenger window and shot, shot the driver of the green car." From Ruff's vantage point, the person holding the gun appeared to be a black male, and the gun was completely outside of the vehicle on the passenger side of the white Volkswagen when it was discharged. After Ruff heard the shot, the green car swerved off the road to the right and hit a pole.
Darryl Glass was struck by the bullet fired from the white Volkswagen and died as a result. An autopsy disclosed that a single bullet larger than .25 caliber had passed through and out of his head near both temporal lobes on a nearly level plane from left to right, moving slightly from front to back. There was no gun powder residue or stippling, thereby indicating the firearm was greater than 30 inches away from Glass's head at the time it was discharged.
Following the shooting, Foster and Petitioner had contact with several people. Both Foster and Petitioner went to Tammy Robinson's house. Later, as Petitioner was leaving, Foster told him, "Don't say nothing to nobody."
Petitioner also went to the house of Deborah Marcell, where he had been living. Marcell recalled it was late in the afternoon, and Petitioner looked "upset or something, you could tell something was wrong." Petitioner told her he had to leave. He went upstairs, got his clothes, and came back downstairs with his clothes in a bag. Petitioner told Marcell there had been a shooting, stating "they shot someone." He did not tell her who had done the shooting. Petitioner then left. Later that night Foster appeared at Marcell's house, and he also told her he had to leave and that there had been a shooting.
A little after 6:00 p.m. that night, Foster also went to Betty Gultry's house. According to Gultry, Foster was nervous and scared. Although Foster smelled of alcohol, Gultry did not think he was intoxicated. Foster stayed at Gultry's house approximately ten minutes.
Petitioner and Foster later ended up at a house shared by Faye Brown and Tracey Jones, Petitioner's girlfriend. They both were waiting for their respective rides either out of the area or to the bus station. While at Brown's house, Petitioner handed the gun to Foster in a brown paper bag. Foster stuck it in Brown's trash.
Foster left Portland and went to Ohio where his mother lived. Later, while speaking with Portland Police Detective Larry Findling by telephone, Foster lied about knowing the person who fired the gun at Glass. Approximately five days after the incident, Foster surrendered to officials in Ohio.
Ultimately, Foster entered into a plea agreement with the State of Oregon, by which it was agreed he would plead guilty to Manslaughter in the Second Degree. It was understood the plea would not be accepted until after he testified against the perpetrator of the homicide at trial. After the plea offer had been proposed, Foster met with Detective Findling and disclosed it was Petitioner who was seated next to Foster in the white Volkswagen at the time of the incident.
Following the shooting, Foster stated to several people, including Betty Gultry, there had been an "accident" and someone had been hurt. Foster was not allowed to testify at trial that he thought the shooting was accidental. The trial court, however, allowed the defense to present evidence that Foster made statements to other individuals that the shooting was an accident.
This evidence was allowed as impeachment evidence with respect to Foster's statement on direct examination that he spoke with nobody after the incident and had very little conversation with Petitioner concerning the nature of the incident.
PROCEDURAL BACKGROUND
Petitioner was indicted on February 3, 1992, on two felony counts. Count 1 charged that on or about June 21, 1991, Petitioner unlawfully and intentionally caused the death of Darrell Glass by shooting Darrell Glass with a firearm. Count 2 charged that on or about June 21, 1991, Petitioner committed the offense of Menacing by unlawfully and intentionally attempting to place Darrell Glass in fear of imminent serious physical injury by pointing a firearm at him.
Following his extradition from California, Petitioner entered a plea of not guilty. The case came on for trial to a jury before Multnomah County Circuit Court Judge William C. Snouffer on October 22, 1992. At the commencement of the trial, the court permitted the state to dismiss Count 2, the menacing charge. Following the state's case-in-chief, the defense rested without presenting any evidence or testimony; thus, Petitioner did not take the stand.
The jury found Petitioner guilty of Murder on October 27, 1992, and on February 24, 1993, the trial court sentenced him to a term of 200 months imprisonment.
Petitioner filed a direct appeal, assigning the following errors:
1. The trial court erred when it denied the defendant's motion for judgment of acquittal.
2. The trial court erred when it denied an objection by defendant during the state's closing argument.
3. The trial court erred when it denied the defense motion for mistrial following the state's closing argument.
The second and third assignments of error were combined for the purposes of argument in Petitioner's brief on appeal, and the question was framed: "Were the prosecutor's repeated references to defendant as the only source of information for the reason why the crime occurred, an impermissible comment upon his failure to testify?"
The Oregon Court of Appeals affirmed from the bench without opinion. On a petition for review advancing the same issues, the Oregon Supreme Court denied review. State v. Gaston, 129 Or. App. 642, 881 P.2d 183, rev. denied, 320 Or. 453, 887 P.2d 792 (1994).
Petitioner then commenced state post-conviction proceedings.
In his Formal Petition for Post-Conviction Relief, Petitioner alleged he had been denied his constitutional rights to a fair trial and against self-incrimination by the prosecutor's closing argument, which he construed as an impermissible comment on Petitioner's failure to testify. Petitioner also challenged the sentence departure on the ground there was "no evidence of compelling and substantial reason to impose an upward departure."
In response to the filing of the formal petition, the state filed a motion for summary judgment in which it contended the issues set forth in the petition had been or should have been raised on direct appeal and, therefore, could not form the basis for post-conviction relief. The state's motion was granted, and summary judgment was entered in the state's favor on the claims raised in the formal petition for post-conviction relief. Petitioner appealed. In Petitioner's appellate brief, counsel charged the post-conviction court erred by "refusing to consider the petitioner's constitutional claims because those claims were not the subject of an appellate court opinion and thus have not been fully and fairly disposed of." The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. Gaston v. Johnson, 135 Or. App. 702, 957 P.2d 1230, rev. denied, 327 Or. 305, 966 P.2d 219 (1998).
Petitioner filed this action on January 28, 1999. In his Petition, he alleges six claims of error that he contends invalidate the constitutional legitimacy of his conviction:
Ground One: Petitioner alleges his conviction was obtained in violation of his Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendment rights due to the insufficiency of the evidence as to proof of the element of "intent" necessary to sustain a conviction for murder under Or. Rev. Stat. § 163.115.
Ground Two: Petitioner alleges his conviction was obtained in violation of his Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendment rights due to improper statements by the prosecutor concerning Petitioner's failure to testify.
Ground Three: Petitioner alleges his conviction was obtained in violation of his Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendment rights due to ineffective assistance of trial counsel in several respects.
Ground Four: Petitioner alleges his conviction was obtained in violation of his Sixth, Eighth, Ninth, and Fourteenth Amendment rights due to ineffective assistance of appellate counsel in several respects.
Ground Five: Petitioner alleges his conviction was obtained in violation of his Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendment rights due to misconduct by the prosecutor.
Ground Six: Petitioner alleges his conviction was obtained in violation of his Fourth, Eighth, and Fourteenth Amendment rights due to the trial court's failure to restrain the prosecutor's statements, failure to grant Petitioner's motion for acquittal, and failure to take other appropriate action to protect Petitioner's right to a fair trial.
Respondent contends the only federal claims presented by Petitioner in his habeas petition that are not procedurally defaulted are: (1) Petitioner's claim as to the insufficiency of the evidence submitted at his trial to prove intent to commit murder; and (2) Petitioner's claim that the trial court improperly denied his motion for mistrial based on the prosecutor's allegedly impermissible comments about Petitioner's failure to testify. Moreover, Respondent argues the determinations of the Oregon state courts regarding these two claims are entitled to deference by the federal district court in accordance with 28 U.S.C. § 2254(d), and Petitioner is not entitled to relief on the merits of these claims.
DISCUSSION
I. Procedural Default
A. Legal Standards
A state prisoner must exhaust all available state court remedies either on direct appeal or through collateral proceedings before a federal court may consider granting habeas corpus relief. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). See also Coleman v. Thompson, 501 U.S. 722, 731 (1991); Picard v. Connor, 404 U.S. 270, 275 (1971).
A prisoner satisfies the exhaustion requirement by providing the state courts with a "full and fair" opportunity to consider his claims. O'Sullivan, 526 U.S. at 844-45. See also Keeney v. Tamayo-Reyes, 504 U.S. 1, 10 (1992); Picard, 404 U.S. at 275-76. A petitioner "fairly" presents his federal claims by alerting the state courts that he is asserting a claim under the United States Constitution. Duncan v. Henry, 513 U.S. 364, 365-66 (1995).
If it is clear that no state remedies remain available to the petitioner, the exhaustion requirement is satisfied. See Coleman v. Thompson, 501 U.S. at 732. See also Kellotat v. Cupp, 719 F.2d 1027, 1029 (9th Cir. 1983). Habeas corpus relief, nevertheless, must be denied if the petitioner has procedurally defaulted a claim in state court. When a habeas petitioner at one time could have raised his federal claim in state court but failed to do so and is then barred from doing so by a state procedural rule, he has procedurally defaulted that claim. Murray v. Carrier, 477 U.S. 478, 485 (1986).
When a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review is barred unless the prisoner can demonstrate cause for the procedural default and actual prejudice or demonstrate the failure to consider the claims will result in a miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451(2000). See also Coleman, 501 U.S. at 750.
B. Analysis
1. Prosecutor's Closing Argument
Respondent contends the claims of prosecutorial misconduct alleged by Petitioner in Ground Two are procedurally defaulted because Petitioner did not allege any claims of such misconduct on direct appeal. Respondent argues Petitioner's direct appeal claims were phrased solely as trial court errors.
In Petitioner's appellate brief on direct appeal, the second question presented for review was stated as follows: "Were the prosecutor's repeated references to defendant as the only source of information for the reason why the crime occurred, an impermissible comment upon his failure to testify?" This question and the ensuing argument essentially consolidated two separate assignments of error: (1) the trial court's denial of defense counsel's objection to the prosecutor's comments, and (2) the trial court's denial of the motion for mistrial as a result of those comments. These same claims were repeated when Petitioner sought review before the Oregon Supreme Court. The arguments throughout the appellate briefs were presented in the context of the prosecutor's alleged improper comments as well as the trial court's failure to grant a mistrial. Petitioner fairly presented his federal constitutional claim of prosecutorial misconduct to the highest Oregon court; therefore, that claim is not procedurally defaulted.
2. Remaining Grounds
Respondent contends, and Petitioner acknowledges, the claims of error stated in Grounds Three, Four, Five, and Six (other than the trial court's alleged error in denying the motion for mistrial) fail under the doctrine of procedural bar due to the lack of presentation of those claims to the state courts in the first instance. Moreover, Petitioner does not argue that cause and prejudice or a fundamental miscarriage of justice exist sufficient to excuse the procedural default of these claims. Accordingly, with the exception of the trial court's failure to sanction the prosecutor for his allegedly improper statements made in closing argument concerning Petitioner's failure to testify, Petitioner cannot obtain habeas corpus relief on the claims raised in Grounds Three, Four, Five, and Six.
II. Relief on the Merits
A. Legal Standards
An application for a writ of habeas corpus shall not be granted unless adjudication of the claim in state court resulted in a decision that was (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or (2) "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).
A state court acts "contrary to" clearly-established federal law if it arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if it decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 120 S. ct. 1495, 1523 (2000). See also Ramdass v. Angelone, 530 U.S. 156, 120 S.Ct. 2113, 2119-20 (2000); Tran v. Lindsey, 212 F.3d 1143, 1150 (9th Cir.), cert. denied, 121 S.Ct. 340 (2000).
A state court unreasonably applies clearly-established federal law if the court identifies the correct governing legal principle from Supreme Court decisions, but unreasonably applies that principle to the facts of the prisoner's case or unreasonably refuses to extend the governing legal principle. Williams, 120 S. Ct. at 1523. See also Ramdass, 120 S.Ct. at 2120; Tran, 212 F.3d at 1120. Under this standard of review, a federal court may not issue a writ simply because it concludes in its independent judgment that the state court applied clearly-established federal law erroneously or incorrectly. Williams, 120 S.Ct. at 1522. The state court decision must be objectively "unreasonable." Id. In order for a state court's application of federal law to be unreasonable, it must have been clearly erroneous. Tran, 212 F.3d at 1153.
When a state court does not articulate a rationale for its determination, a review of that court's application of clearly-established law is difficult. As the Ninth Circuit recently explained: "[f]ederal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law." Delgado v. Lewis, 223 F.3d 976, 982 (2000) (citation omitted).
B. Analysis
1. Sufficiency of the Evidence
The Due Process Clause of the Fourteenth Amendment protects the "accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). In reviewing the sufficiency of evidence to support a petitioner's state conviction, a federal habeas court must determine whether, after considering all of the evidence in the light most favorable to the prosecution, a rational trier of fact could have found each of the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). See also Walters v. Maas, 45 F.3d 1355, 1358 (9th Cir. 1995). The court must look to state law to determine the elements of the crime and the appropriate definition or parameters of such elements. Jackson v. Virginia, 443 U.S. at 324.
If the evidence is unclear or would support conflicting inferences, a presumption arises that the trier of fact resolved any such conflicts in favor of the prosecution. Payne v. Borg, 982 F.2d 335, 338 (9th Cir.), cert. denied, 510 U.S. 843 (1993). The reviewing federal court must respect the province of the jury to determine credibility of witnesses, to resolve evidentiary conflicts, and to draw inferences from proven facts by assuming the jury resolved all conflicts in a manner that supports the verdict. Walters, 45 F.3d at 1358.
Under Oregon state law, criminal homicide is defined by Or. Rev. Stat. § 163.005(1) as follows:
A person commits criminal homicide if, without justification or excuse, the person intentionally, knowingly, recklessly, or with criminal negligence causes the death of another human being.
Criminal homicide constitutes murder when it is committed intentionally. Or. Rev. Stat. § 163.115(1)(a). The term "intentionally," when used with respect to a result or to conduct described by a statute defining an offense, "means that a person acts with a conscious objective to cause the result or to engage in the conduct so described." Or. Rev. Stat. § 161.085(7).
Petitioner contends the evidence at trial was constitutionally insufficient to prove the element of intent necessary to sustain his conviction for Murder. Instead, Petitioner argues the evidence demonstrates the weapon discharged by accident.
Respondent counters that the state demonstrated the existence of a conscious objective to cause the victim's death on the basis of the following:
1. Petitioner raised the gun in order to "scare" the victim;
2. Witnesses saw Petitioner point the loaded revolver out the car window at the victim's head;
3. Petitioner applied sufficient pressure to the trigger to discharge the weapon and shot the victim at close range; and
4. Petitioner left the scene instead of giving aid to the victim.
Upon an independent review of the record, including both the transcribed portions of the trial and the videotape recording of the remainder of the trial, and viewing the evidence in the light most favorable to the prosecution, this Court finds the jury, as rational triers of fact, easily could have found Petitioner acted with a conscious objective to fire a handgun at Glass's head and, thus, to cause his death. Accordingly, the decisions of the state courts were not contrary to nor an unreasonable application of clearly-established federal law, and Petitioner is not entitled to relief on this claim.
2. Prosecutor's Closing Argument
The Fifth Amendment protection against self-incrimination as applied to the states through the Fourteenth Amendment forbids prosecutorial comment on a defendant's decision not to testify. Griffin v. California, 380 U.S. 609, 615 (1965). The relevant question is whether the prosecutor's comment so infected the trial with unfairness as to make the resulting conviction a denial of due process. Darden v. Wainwright, 477 U.S. 168, 181 (1986).
Improper comment on a defendant's silence at trial is examined under the harmless error standard and does not require the automatic reversal of a conviction. Chapman v. California, 386 U.S. 18, 22 (1967). See also Arizona v. Fulminante, 499 U.S. 279, 307 (1990). In federal habeas corpus actions, the harmless error standard requires reversal only if the improper comments "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 638 (1993), citing Kotteakos v. United States, 328 U.S. 750, 776 (1945). Such error is not harmless when the federal court has "grave doubt" as to whether the error had substantial and injurious effect or influence on the jury's verdict. O'Neal v. McAninch, 513 U.S. 432, 433 (1995). "Grave doubt" means "in the judge's mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error." Id.
Petitioner contends the prosecutor repeatedly vilified Petitioner during closing argument and suggested Petitioner possessed a "criminal mind" that rendered his thought processes completely unlike those of the jurors so that information about his thought processes at the time of the homicide, an issue pertinent to the element of intent, could only come from Petitioner himself. Petitioner argues the prosecutor, in so doing, indirectly but emphatically and improperly, drew the jury's attention to the fact Petitioner had not testified.
The prosecutor's closing argument is preserved on the videotape record of Petitioner's trial, and this Court has viewed it in its entirety, including the following relevant excerpts:
Deputy District Attorney Heyworth:. . . . [W]e began this case, at jury selection, talking about elements. Defense talked to you about elements, the state needed to prove elements of the crime of murder before you could return a verdict of guilty. . . .
We talked about what the state didn't need to prove to you. We have proven to you unequivocally, that Maurice Gaston was the man who held a gun out the window of a car on June 21st, and killed Darryl Glass. We have proven that to you. We've proved the who, the when, June 21st, the where, in Multnomah County, the who Maurice Gaston, and the what. That he intentionally killed Darryl Glass with a firearm. But you know? Inside of you I bet, that you still want the State of Oregon to prove to you why. . . . The why in this case, the motive if you will, is not something that is required by law. And you took an oath, and you told us, each of you, that you wouldn't require us to do that. Because who can prove why? Who can prove why something as senseless as the death of Darrell Glass took place on the 21st of June. Who can prove why? How can you know why? You can't know why, because the only person who knows why, the only living breathing, human being who knows why is this man right here, Maurice Gaston, and you can't understand why, because you cannot sit in his mind, you cannot fathom in your mind what would make a young man kill another young man, for some reason, or for no good reason at all. And you can't understand why, because you aren't like Maurice Gaston, your closest friends aren't like Maurice Gaston, the people who you buy things from at the grocery store are not like Maurice Gaston, the doctors that you see are not like Maurice Gaston, the man or woman who comes and delivers the paper in the morning at your house is not like Maurice Gaston. But those people are like you. . . . They dress like you, they talk like you and they think like you. . . . But you can't understand that a man can get up in the morning, a man with criminal intent, a man such as Maurice Gaston, and he equipped himself with the clothing of a murderer, equipped himself with an instrument of death, and because he gets up in the morning, and he wears the instrument of death, he is not understandable, you can never know why, and you can never relate to him, you cannot relate to the fact that somebody would take a long revolver, loaded, and as part of their garb, as part of their being, tuck it inside a jacket, loaded, ready, willing to kill. Why do you know that? Because why, why would somebody place a gun in their pocket, loaded, ready to go, why would they do that? Because they had a criminal mind, because they're going to use it . . . and this man over here chose to wear that as his work clothes, on the 21st of June. It's not a wonder that we cannot understand why, because the only person who can understand why he could do something as senseless, as deliberate, as to arm himself with something that would kill a young man, is this man here, and you are very different than he, and so is everybody that you know, very different, he is far. . . .
Attorney Lai: Your honor, I'd object, may I have a conference.
Court: Objection overruled.
Deputy District Attorney Heyworth: He is born out of a bent warped mind, a criminal mind.
Attorney Lai: Object your honor!
Court: Objection overruled.
Several minutes later, the prosecutor concluded her closing argument with the following statement:
Deputy District Attorney Heyworth:. . . . It's not an accident. You can't know why. There are no answers. To ask yourself why, is to ask yourself who really is that man? [Pointing to Defendant.] To ask yourself why is to really find no answers at all. Maurice Gaston may have had a reason to kill on that day. He may have had no reason at all. But you have a reason, ladies and gentlemen, to convict him, and to hold him responsible for what he has done.
In response to Petitioner's contentions concerning the contents of the closing statement, Respondent maintains the references made by the prosecutor did not intrude on Petitioner's Fifth Amendment privilege. Respondent argues, alternatively, any improper prejudice that may have accrued to Petitioner as a result of the prosecutor's comments was cured by the trial court's following closing jury instructions:
A defendant in a criminal case has an absolute constitutional right not to testify. Therefore, a defendant's decision not to testify cannot be considered as an indication of guilt. It should not be commented upon or in any way considered by you in your deliberations.
A defendant also 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 guilt. It should not be commented upon or in any way considered by you in your deliberations.
As noted above, no Oregon court issued a written opinion on Petitioner's Griffin claim. After a thorough and independent review of the record, this Court does not find unreasonable the trial court's denial of Petitioner's motion for mistrial based upon the prosecutor's closing argument. The prosecutor directly asserted in her argument that Petitioner acted intentionally. In the part of the argument Petitioner challenges, the prosecutor emphasized that an intentional mental state might not be within the jurors' common experiences. The prosecutor did not comment expressly on Petitioner's decision not to testify, and her statements did not cross the line as an indirect comment on that decision. This Court finds the prosecutor's closing argument did not violate Petitioner's due process rights under the standards of Brecht, 507 U.S. at 637. Having considered the context and occasion of the argument, the weight of the evidence against Petitioner, and the trial court's instructions on which the jury presumptively relied in its deliberations, this Court concludes the state court disposition was not contrary to nor did it involve an unreasonable application of "governing legal principles from [the Supreme Court's] decisions." Williams, 529 U.S. at 413. Accordingly, Petitioner is not entitled to habeas corpus relief on his claims that the prosecutor made constitutionally improper comments on Petitioner's failure to testify or the trial court erred when it denied Petitioner's motion for mistrial on this basis.
CONCLUSION
Based upon the foregoing, the Petition for Writ of Habeas Corpus (#2) is DENIED.
IT IS SO ORDERED.