Opinion
Civil Action No. 4:04CV137LS.
June 19, 2006
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
PROCEDURAL HISTORY
Christopher Hundley was convicted in the Circuit Court of Wayne County, Mississippi, of two counts of sale of cocaine. He was sentenced to two eight-year terms, to run consecutively, in the custody of the Mississippi Department of Corrections. Hundley appealed his conviction, and the Mississippi Court of Appeals entered an opinion on April 16, 2002, affirming the lower court. Hundley v. State, 822 So. 2d 1116 (Ms. Ct. App. 2002). A Petition for Rehearing was denied on July 23, 2002. Hundley then applied for post-conviction relief, which was denied on July 20, 2004, and this Petition for Writ of Habeas Corpus followed.
On direct appeal, Hundley argued that the trial court erred in refusing to allow him to present rebuttal evidence that would have cast doubt on his identification by an undercover agent at trial as the man from whom he purchased crack cocaine. The rebuttal witness from whom Hundley sought to offer testimony was his dentist, who would have testified as to how many gold teeth Hundley had at the time of the incident. The trial court refused to allow the testimony, holding that the dentist had not been previously identified as a witness and that his testimony would have been irrelevant. The Mississippi Court of Appeals rejected his appeal on this point, holding that the dentist was not a rebuttal witness because it was Hundley who first raised the issue of his gold teeth. The court went on to hold that the agent's identification was reliable under the applicable legal standard, and, therefore, that the dentist's testimony would not have aided the jury. Thus, the court held, the trial judge did not abuse his discretion in excluding the dentist, and his decision was affirmed.
In his Application for Leave to File Post-Conviction Relief, Hundley argued that his attorney was ineffective, for several reasons. First, Hundley asserted that his counsel should have asked that a juror who had a relative in law enforcement be stricken for cause. Second, he stated that his attorney should have properly named his dentist as a potential witness. Third, Hundley claimed that his attorney permitted the prosecutor to make improper statements during closing argument without objection. Finally, Hundley argued that his attorney was deficient on appeal for failing to properly raise the errors that occurred below. The Mississippi Supreme Court denied relief, holding that, under the rationale of Strickland v. Washington, 466 U.S. 668 (1984), Hundley had failed to show that his attorney had been ineffective.
In his Petition for Writ of Habeas Corpus, Hundley raises four grounds for relief:
1) Trial counsel was ineffective for not challenging jurors who had relatives in law enforcement, for failing to secure exculpatory evidence that would have countered the agent's identification of him, and for failing to object to improper comments by the prosecutor;
2) The prosecutor called Hundley a liar in his closing argument;
3) The prosecutor improperly vouched for the truthfulness of a state witness during closing argument; and
4) Trial counsel was ineffective in presenting the issues in Hundley's direct appeal. The undersigned has reviewed the record of the trial in this matter, as well as the pleadings and arguments of the parties. Having conducted that review, the court is of the opinion that, under the standards applicable for review of a petition for a writ of Habeas Corpus, Hundley has failed to present grounds that would entitle him to relief. Therefore, and for the reasons more fully explained below, it is the opinion of the undersigned that this case should be dismissed with prejudice.
FACTS
Hundley's conviction was based on two sales of cocaine that occurred about thirty minutes apart on February 10, 1999. On that date, Agent Greg Lea was working undercover with the East Mississippi Drug Task Force. (Tr. 52) Wayne County was in an area served by the South Mississippi Drug Task Force; however, it was a common practice for undercover agents to work in different areas in order to present a fresh face to drug dealers. (Tr. 53) Lea began working in Wayne County with a confidential informant named Adam Walker to purchase drugs in that area. While other agents performed surveillance, Lea and Walker went to an area in Waynesboro where drugs were known to be sold. (Tr. 57-59) There, they saw some men sitting on a car, and the confidential informant identified the one that approached them as "Chris Hundley." The informant introduced Agent Lea to Hundley, and Hundley sold Lea some crack cocaine. (Tr. 60)Later that day, Walker and Agent Lea returned to the same area to attempt another buy, possibly from the other men that they had seen with Hundley. (Tr. 62) They were approached by those men and told to "make the block." When Agent Lea and Walker returned, Hundley approached them and sold them more crack cocaine. (Tr. 64-65) Hundley was not arrested at that time, so that Lea could continue to work in the area without becoming known as an undercover agent.
Agent Lea wore a wire during both sales, and the conversations that took place during those sales were recorded and played to the jury. (Tr. 69-72) Neither the tape nor a transcript has been submitted to this court as part of the record in this matter. After the first transaction, Lea recorded a statement to describe the seller, and, during that statement, apparently made some comment about the seller's gold teeth. At some point following the sales, Lea was asked to review photographs of potential suspects, and he picked Christopher Hundley's picture from the group shown to him. (Tr. 76) Lea also identified Hundley at trial. (Tr. 77) He later testified that he had about seven minutes during the two sales to observe Hundley and that his face was approximately a foot from Hundley's during that time. (Tr. 94-96) Jason Waller, who was a field supervisor with the South Mississippi Drug Task Force at the time of this offense, also testified at trial. (Tr. 101) He was the person who supplied the photographs for Agent Lea to review after the sale, and he confirmed that Lea had selected Hundley's picture from the group of over 100 photographs. (Tr. 111, 117)
In later argument on the issue of the dentist's testimony, the nature of the comment was disputed, but Lea apparently stated that Hundley had either two or four gold teeth. (Tr. 148).
Page 75 from the transcript of the trial is missing from the record. Apparently, the testimony contained on that page describes exactly how Lea came to review photographs for identification purposes.
Hundley elected to testify at trial. (Tr. 135) In an attempt to discredit Lea's identification, his attorney asked him to show his teeth to the jury and describe how many gold teeth he had. (Tr. 139) Hundley testified that his dentist, Dr. Kornegay, had put the gold teeth in and that he had them since 1994. (Tr. 140) However, on cross-examination, he reviewed the photograph from which he was identified by Agent Lea, which was taken in 1995, and he admitted that he only had four gold teeth in that picture. (Tr. 142) He maintained that he had eight gold teeth in 1999, when the sale occurred, at which time the prosecutor asked him whether he had medical records to prove it. Then she asked, "Is Doctor Kornegay going to come and testify on your behalf to your knowledge?" Hundley also testified that he could not remember where he was on the day of the sale, although he was sure that he was not on the street where the sale occurred. (Tr. 143)
Apparently, Hundley's dentist's name is Hobert Kornegay. He is referred to variously in the record and in the pleadings as "Dr. Kornegay" and "Dr. Hobert."
Just before the defense rested, which occurred late in the afternoon, Hundley's attorney asked the court's permission to bring Dr. Kornegay to court the next morning to testify regarding the date that Hundley got his second set of gold teeth. (Tr. 146) The State objected, on grounds that Dr. Kornegay had not been listed as a witness, and because the issue of how many gold teeth Hundley had was not an important issue. The court denied the request primarily on grounds of the discovery issue, although the trial judge also commented that it was not "a material point. . . ." (Tr. 149)
During closing argument, the prosecutor compared the testimony from Agent Lea with Hundley's testimony. (Tr. 162) He described Lea as "just doing his job as a sworn law enforcement officer." On the other hand, he argued that Hundley had an incentive to lie to keep from going to jail. There was no objection to that comment. In rebuttal argument, the other prosecutor told the jury that it was his job to represent the people of Wayne County. (Tr. 177) Defense counsel objected to the statement, but the objection was overruled. Finally, the second prosecutor stated:
Now, the defendant, all he told you was, although he goes to Glitter Lane all the time, he knew February 10th he did not go there. And I don't think you should reward him for not asking a grandmother or a grandfather to come up here and commit perjury. Nobody wants that. But if he had an alibi, somebody could have taken the stand and you could have listened to their argument and you could have weighed it, because you are the people that decide who is telling the truth.
(Tr. 178) No objection was made to this argument.
As stated earlier, the only argument made on direct appeal was that the trial court erred in refusing to allow Dr. Kornegay to testify. The Mississippi Court of Appeals first reviewed the allegation that Kornegay should not have testified because he was not previously named as a witness, in violation of Rule 9.04 of Mississippi's Uniform Rules of Circuit and County Court Practice. Hundley had attempted to argue that he was not required to have identified Kornegay prior to trial, because he was a rebuttal witness, arguing that the State raised the issue of Hundley's gold teeth first. The court disagreed, characterizing that argument as being "in direct conflict with the trial transcript." 822 So. 2d at 1118. According to the court, it was Hundley who raised the issue by showing his teeth to the jury.
The court reserved most of its discussion, however, for the issue of relevance, stating, "Because of the sufficiency of the evidence supporting Agent Lea's eyewitness identification of Hundley, the trial judge did not abuse his discretion in ruling that Dr. Kornegay's testimony was irrelevant. Reliability has been deemed the linchpin in determining the admissibility of identification testimony." Id., citing Manson v. Brathwaite, 432 U.S. 98, 114 (1977); Gray v. State, 728 So. 2d 36 (Miss. 1998). The court went on to list the factors that determine reliability under the totality of the circumstances given in a particular case, as they were announced by the United States Supreme Court in Neil v. Biggers, 409 U.S. 188, 199-200 (1972). Reviewing the factors leading to Lea's identification of Hundley, the court found that they were sufficient to satisfy the Biggers test and further found that the trial judge did not abuse his discretion in determining that evidence regarding Hundley's teeth was irrelevant:
Whether Hundley had eight gold teeth at the time of the drug sales and only four in the photograph identified by Agent Lea is immaterial, especially as in the photograph only Hundley's upper teeth were showing. If Hundley did have eight gold teeth at the time the picture was taken, they would not show unless he revealed his upper and lower teeth.822 So. 2d at 1119. Thus, Hundley's conviction and sentence were affirmed.
STANDARD OF REVIEW
The applicable portions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. 104-32, 110 Stat. 12144, and the standard of review imposed upon this court thereby, prevent the granting of habeas relief in this action. Title I of the AEDPA modified 28 U.S.C. § 2254 by providing the following:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) 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
(2) 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).
Under the revisions to § 2254, where the state court adjudicated the petitioner's claim on the merits, this court reviews questions of fact under § 2254(d)(2), while questions of law or mixed questions of law and fact are reviewed under § 2254(d)(1). Factual findings are presumed to be correct, and the court defers to the state court's decision regarding factual determinations unless it "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000); § 2254(d)(2). The court independently reviews questions of law and mixed questions of law and fact to determine whether the state court's decision thereon was either "contrary to" or an "unreasonable application of" federal law. Williams v. Taylor, 529 U.S. 362 (2000); Hill v. Johnson, 210 F.3d at 485.
The first step in this inquiry is to determine what federal law should be applied to the state court's decision. Williams, 529 U.S. at 379. The determinations of the state courts must be tested against "clearly established Federal law, as determined by the Supreme Court of the United States." Id.; § 2254(d)(1). Next, this court must determine whether the state court's decision was "contrary to" that established Federal law. As Justice O'Connor explained in Williams, "A state-court decision will certainly be contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases." 529 U.S. at 405. Justice O'Connor went on to state, "A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." Id.
Justice O'Connor identified two situations in which a state court's application of the correct legal precedent to the particular facts of a petitioner's case could be held to be "unreasonable" within the meaning of § 2254(d)(1):
First, a state-court decision involves an unreasonable application of this Court's precedent if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case. Second, a state-court decision also involves an unreasonable application of this Court's precedent if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.Id. at 406. See also Ramdass v. Angelone, 530 U.S. 156 (2000); Chambers v. Johnson, 218 F.3d 360 (5th Cir. 2000); Penry v. Johnson, 215 F.3d 504, 507-09 (5th Cir. 2000). The Supreme Court in Williams disapproved earlier decisions basing the standard of "unreasonableness" on a subjective standard and held, instead, that the standard was an objective one. 529 U.S. at 406. The term "unreasonable," however, was distinguished in Williams from "erroneous" or "incorrect;" thus, a state court's incorrect application of the law may be permitted to stand if it was, nonetheless, "reasonable." Finally, the objectively reasonable standard applies to the outcome of the state court's decision, not the analysis through which it was reached. Neal v. Puckett, 286 F.3d 230, 245-47 (5th Cir. 2002).
DISCUSSION
1. Whether trial counsel was ineffective because Dr. Kornegay's testimony was excluded.
In his habeas petition, Hundley does not attempt to re-argue his position on Dr. Kornegay's testimony directly; instead, he claims that his attorney was ineffective at trial for failing to properly secure Kornegay's testimony and ineffective on appeal for failing to raise the issue in a manner that did not contradict the record. Thus, as presented to this court, the issue is not purely a matter of the correctness of an evidentiary record, which would be an issue of state law, not ordinarily cognizable on habeas review. Lockett v. Anderson, 230 F.3d 695, 709 (5th Cir. 2000). In its current posture, the question of whether Dr. Kornegay's testimony was improperly excluded rests on a determination of whether his attorney was constitutionally deficient in his performance by not taking the necessary steps to have Kornegay available to testify or, failing that, to preserve the issue for appeal.
The standard for determining the effectiveness of counsel during trial is the two-prong test set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Hill v. Lockhart, 474 U.S. 52 (1985). A defendant must show that counsel's representation fell below an objective standard of reasonableness, and that there is "`a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. ( quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068). To meet the prejudice prong, the defendant must affirmatively prove, and not merely allege, prejudice. Bonvillain v. Blackburn, 780 F.2d 1248, 1253 (5th Cir.), cert. denied, 476 U.S. 1143 (1986). Even where the outcome of his case would have been different, ineffectiveness will not be found if the petitioner was not denied a fundamental right at trial; e.g., where counsel refuses to present perjured testimony, or where counsel fails to advance an argument that is not supported by law. Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Fretwell, 506 U.S. 364 (1993); Young v. Dretke, 356 F.3d 616, 626(5th Cir. 2004). Finally, even where counsel commits an error in representing his client, there can be no prejudice where the evidence against his client is so overwhelming that the error could not have changed the outcome. Miller v. Dretke, 404 F.3d 908, 918-19 (5th Cir. 2005).
Here, the undersigned is of the opinion that the trial court's denial of defense counsel's request to have Dr. Kornegay testify did not prejudice Hundley; therefore, his attorney could not have been ineffective either at trial or on appeal. The Mississippi Court of Appeals correctly stated the law with regard to the reliability of in-court identifications, and, based on the factors enunciated in Neil v. Biggers, the undersigned is of the opinion that the law was properly applied to the question of whether Agent Lea's identification of Hundley was reliable. Furthermore, the court made a factual finding that the photograph from which Agent Lea identified Hundley only showed his upper teeth. The court must presume this finding to be correct, and there is no evidence presented to the contrary. Thus, the issue of whether Hundley had four or eight gold teeth would have been immaterial on the issue of whether the photograph selected by Agent Lea accurately depicted Hundley's appearance.
With regard to the manner in which the issue was raised on appeal, the undersigned likewise finds no prejudice. The question of who raised the existence of Hundley's gold teeth first is arguable, as, apparently, they were mentioned in the taped statement that Agent Lea made after the sale. The Court of Appeals found otherwise, holding that Hundley raised that issue first and, therefore, that Dr. Kornegay was not a true rebuttal witness. Nevertheless, the court appears to have based its decision primarily on the question of whether the issue was material to the reliability of Lea's identification, and the court concluded that it was not. Therefore, Hundley was not prejudiced by his counsel's characterization of this matter on appeal, and his attorney was not ineffective in a constitutional sense because Dr. Kornegay's testimony was excluded as irrelevant. There is no merit to this argument.
2. Whether counsel was ineffective in failing to strike jurors.
Hundley next contends that his attorney was ineffective for permitting jurors with relatives in law enforcement to be seated. Juror Number One, Gueen Pou, stated during voir dire that she had a brother who worked for the Laurel Police Department, and Juror Number Twenty, Teresa Johnston Lyles, was married to a security guard. (R. 29, 30) Lyles was struck from the panel by the court because she was related to Hundley. Only Ms. Pou served on the jury that convicted him.
The undersigned finds no merit to Hundley's argument on this issue. Under Strickland, "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." 466 U.S. at 690. To overcome that presumption, a habeas petitioner must show that his attorney's performance was deficient and that the deficiency affected the outcome of his trial. To make such a showing, the petitioner must allege facts that, if proved, would overcome the presumption that the contested decisions were part of counsel's reasoned trial strategy. Rushing v. Butler, 868 F.2d 800, 806 n. 6 (5th Cir. 1989) (holding that counsel was not ineffective for failing to strike a juror who knew the victim and a juror who did not want to serve).
The Respondents correctly note that Pou, along with the other members of the venire, collectively agreed to judge the case on the merits, without giving undue weight to the testimony of law enforcement officers. Certainly, Hundley points to no evidence in the record that Pou was biased, other than her relationship to a law enforcement officer from another jurisdiction. This situation is distinguishable from cases where jurors have been allowed to remain even when they were related to officers employed by an agency actually involved in the case. United States v. Munoz, 15 F.3d 395, 397 (5th Cir. 1994) ("In the present case, however, neither Rowley nor his wife had been in law enforcement and Rowley's relatives then or previously so employed were never affiliated with any of the law enforcement agencies involved in this case, nor did it arise within their area of operation.") The undersigned is of the opinion that Hundley has failed to establish that he was prejudiced by Pou's service on the jury.
A review of the record, however, yields an even more compelling reason to find that Hundley's attorney kept Pou on the jury for a strategic reason. Defense counsel made a Batson challenge to the State's use of peremptory strikes, during which it was revealed that Pou was black, as were at least two other jurors. (Tr. 39) Hundley is also black, and Agent Lea is white, and it became obvious during trial that Hundley's attorney intended to use race as part of his defense strategy. During closing argument, Hundley's attorney contended that, if Hundley had been well-educated or white, the State would not have considered the evidence to have been enough to prosecute. (Tr. 165) He also attempted to refute Lea's identification of Hundley by arguing that it is difficult for white people to identify black people, and by stating that there was no evidence as to how many pictures of black people were in the group reviewed by Lea. (Tr. 168, 170) The undersigned finds, therefore, that Hundley has failed to allege facts sufficient to overcome the presumption of Strickland that his trial counsel was effective, and that the Mississippi Supreme Court's rejection of this argument was not an unreasonable application of the rationale of that case. Habeas relief is unavailable on this issue.
Batson v. Kentucky, 476 U.S. 79 (1986).
3. Whether counsel was ineffective by permitting improper argument by prosecutors.
Hundley asserts that his trial was tainted by prosecutorial misconduct during closing argument. Although the specific statements about which he complains are not entirely clear from his habeas petition, it appears that he is contesting the statements described earlier in the recitation of the facts of this case: (1) comparing Agent Lea's motivation to lie with Hundley's; (2) telling the jury that the prosecutor represented the people of Wayne County; and (3) commenting on Hundley's failure to ask his relatives to perjure themselves to provide him an alibi. His attorney did not object to the first statement at trial, and none of the statements was raised on direct appeal. Hundley raised these arguments in his Application for Post-Conviction Relief, but only by asserting ineffectiveness, which the Mississippi Supreme Court found did not meet the Strickland standard. In the brief supporting his Application, Hundley also argued that the state court should review his allegations as plain error, but that contention was not addressed by the state court. In his habeas petition, Hundley raises these issues on the merits, as grounds for his claim that his counsel was ineffective at trial, and on grounds that his attorney was ineffective on appeal.
As stated earlier, Strickland requires that a petitioner claiming ineffectiveness of counsel show that he was prejudiced by the alleged deficient performance. If trial counsel fails to make a meritless objection, or if appellate counsel fails to raise a meritless issue, they cannot be ineffective. Shields v. Dretke, 122 Fed. Appx. 133, 151 (5th Cir. 2005) (failure to make meritless objection at trial does not amount to ineffectiveness); Williams v. Collins, 16 F.3d 626, 634 (5th Cir. 1994) (failure to raise meritless issues on appeal is not ineffectiveness.) In the opinion of the undersigned, the challenged statements by the prosecutor were not improper, and the failure to contest them at trial or on appeal did not amount to ineffective assistance of counsel.
The first challenged statement was made in the prosecutor's initial closing, in which he compared Agent Lea's motivation to lie with Hundley's. Clearly, Lea's identification of Hundley was a major component of the case against him, and Hundley took the stand in order to refute that identification. The prosecutor made his statement in the context of discussing the evidence that supported Lea's identification. As the Fifth Circuit has stated, a prosecutor may summarize the evidence and make a fair inference from it that a witness has no reason to lie. United States v. Washington, 44 F.3d 1271, 1278-79 (5th Cir. 1995). Mississippi law is in accord. Hull v. State, 687 So. 2d 708, 721 (Miss. 1996). Thus, any argument attacking this statement would have been without merit and cannot be the grounds for a finding of ineffectiveness.
The next argument that Hundley raises was in the final closing, where the prosecutor argued that she represented the people of Wayne County. That statement was made after closing argument for the defense, when Hundley's attorney told the jury, "You know, the State of Mississippi never loses. We're all the State of Mississippi: you, me, them, him, this gentleman, everybody. The State never loses when justice is done." (Tr. 173) In response, the prosecutor stated:
The State loses — I mean, wins — no matter what, the State never loses. Ladies and gentlemen, when guilty people go free, the State loses. There's just no way around it. And as the defense lawyer said, it is my job to represent my client, who are the people of Wayne County
(Tr. 177)
In this court or in Mississippi's state courts, a prosecutor's argument should be reviewed in light of the argument to which it responded. United States v. Washington, 44 F.3d at 1278; Simmons v. State, 805 So. 2d 452, 490 (Miss. 2001). Hundley has cited no authority for the proposition that such an argument, standing on its own, is improper, and it was not improper as a response to the argument of defense counsel. An objection at trial or an argument on appeal would have been without merit, and Hundley's counsel cannot be faulted for failing to raise such an objection or make such an argument. Therefore, the court finds no basis in this contention for granting habeas relief.
Finally, Hundley asserts that the prosecutor went beyond the proper bounds of argument by telling the jury that Hundley should not be rewarded by failing to produce a family member who would lie to give him an alibi. Hundley had testified during trial that he was not on Glitter Lane, the street on which the drug sales took place, on the day in question, although he could not remember where he was on that day. (Tr. 143) The prosecutor was remarking on Hundley's lack of alibi, and, in that context, the comments were permissible. Montoya v. Collins, 955 F.2d 279, 287(5th Cir. 1992).
In Montoya, the prosecutor argued in closing that the defendant's father and cousins were available to testify as to his good character, and they were not called as witnesses. He went on to say, "[Y]ou haven't heard from his family, a friend, an employer. . . . a preacher, or a priest or a minister. . . . how about anybody to come down and say anything good about the Defendant." The court held that this was a proper comment on the failure of the defense to counter or defend the evidence introduced at trial. Id. Similarly, under Mississippi law, a prosecutor may comment on the defendant's failure to offer testimony to refute the state's case, so long as other witnesses were available to do so, and the comment does not impermissibly refer to the defendant's failure to testify. Trull v. State, 811 So. 2d 243, 246 (Miss.Ct.App. 2000), citing Holland v. State, 705 So. 2d 307, 344 (Miss. 1997). Here, Hundley did testify, and the prosecutor's statements simply referred to his failure to present other witnesses to offer an alibi. The comments were not improper under federal or state law, and any objection to them would have been fruitless.
The undersigned is of the opinion that the statements of the prosecutors that are challenged by Hundley were not improper under state law; thus, any objection at trial would likely have been overruled, and Hundley could not have mounted a successful appeal based on these issues. His counsel was not ineffective for failing to object to them or include them as grounds to seek appellate relief. The remarks are likewise not improper under federal law, and they could not be challenged on the merits in this habeas action. Therefore, there is no grounds on which the court can grant habeas relief based on prosecutorial misconduct.
For all of these reasons, the undersigned finds that Christopher Hundley's Petition for Writ of Habeas Corpus contains no argument that entitles him to relief and concludes that the petition should be dismissed with prejudice. The parties are hereby notified that failure to file written objections to the proposed findings, conclusions, and recommendations contained within this report and recommendation within ten (10) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected — to proposed factual findings and legal conclusions accepted by the District Court. 28 U.S.C. § 636; Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).