Opinion
Civil No. 00-74231-DT
June 22, 2001
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
James A. White, ("petitioner"), presently confined at the Michigan Reformatory in Tonia, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner challenges his conviction on three counts of first degree criminal sexual conduct, M.C.L.A. 750.520b(1)(d); M.S.A. 28.788(2)(1) (d), and being a second felony habitual offender, M.C.L.A. 769.10; M.S.A. 28.1082. For the reasons stated below, petitioner's application for a writ of habeas corpus is DENIED.
I. BACKGROUND
Petitioner was convicted of the above offenses following a jury trial in the Saginaw County Circuit Court. The victim, Valerie Williams, testified that on the evening of February 7, 1996, petitioner, co-defendant Marvin Pulliam, and Ricky Riley arrived at her house. Williams was friends with the three men. Petitioner and the other two men appeared drunk to Williams. At one point, petitioner, Pulliam, and Riley went into Williams' backyard and fired a shotgun into the air. This frightened Williams, because her children were playing outside and she was also concerned about the neighbors. However, the men did return to the house and drank and talked with Williams for an hour. Williams agreed to go out riding and drinking alcohol with the three men, before ending up at petitioner's apartment. Upon their arrival at the apartment, Riley left with the car.
Williams sat on the bed talking to petitioner and Pulliam for an hour or two. During that time, Williams drank two forty (40) ounce beers, but claimed that she was not intoxicated. At one point, Pulliam turned out the lights and told Williams that he was going to "screw her". Williams told both petitioner and Pulliam that she did not want to have sex with either man. Petitioner and Pulliam ordered Williams to undress and she complied, claiming that she was frightened. At the time that the men ordered Williams to remove her clothes, the shotgun that the men had fired off earlier at her house was by the refrigerator in the apartment. The men had told her that there was still ammunition in the gun. Williams acknowledged that neither petitioner nor Pulliam ever pointed the gun at her during the assault.
Williams testified that petitioner and Pulliam proceeded to penetrate her vaginally, orally, and anally for several hours. Williams testified that she did not agree to have sex with either man. Williams could not recall if either petitioner or Pulliam ejaculated, but testified that there were seven or eight penetrations. Williams repeatedly asked the men during the assault why they were doing this to her.
Williams finally left the apartment at 7:55 a.m. Prior to leaving, petitioner told Williams that if she told anyone about the incident, he would hurt her and her family. Williams walked across the street to the police station and called a taxicab. Petitioner and Pulliam were outside the police station when she went in to call the cab. Although there were police officers inside the police station, Williams did not report the assault at that time. Williams explained that she was scared to tell the police and figured that petitioner and Pulliam would simply run away if she summoned help. Petitioner paid for the cab and Pulliam rode with her, dropping her off at her house. Williams called the police that night to report the incident, some twelve hours after the assault had taken place.
Officer Randi Tinglan was dispatched to the victim's house at about 7:30 p.m. on February 8, 1996. The victim told her what had happened and was taken by Officer Tinglan to the hospital to obtain a sexual assault kit. At the hospital, Williams complained of soreness to her neck, vagina, and anus. She also appeared upset and was crying. Officer Tinglan later executed a search warrant on petitioner's apartment and recovered a rifle and some ammunition, as well as the blanket and bedsheets from petitioner's bed, which were preserved for forensic evidence. Officer Tinglan testified that the refrigerator in petitioner's apartment was only two and a half to three feet from the bed.
Kyle Hoskins of the Michigan State Police crime lab testified next. Defense counsel objected to her testimony, because Hoskins had not been listed on the prosecutor's witness list and he had not been given Hoskins' report in discovery. Over defense counsel's objection, Hoskins testified that she was a laboratory scientist. Hoskins indicated that the vaginal swab and smear from the sexual assault kit were positive for seminal fluid, as were the sweat pants, sheets and blankets which had been taken from petitioner's apartment. The rectal and oral swabs were negative for the presence of semen. Petitioner was a type 0 secretor, which was within the group of possible semen donors to the stains on the blanket and sheets. Although Hoskins preserved additional swabs for DNA testing, because neither side requested that such tests be performed, none were conducted.
Linda Kress, the emergency room nurse, interviewed Williams at the hospital. Williams complained of pain in her rectum and neck and pain with urination. Williams stated that she had been penetrated vaginally, anally, and orally. Williams told Kress that the assault had occurred early in the morning of February 8th around 7:30 a.m. Williams told Kress that she objected to the lights being turned out, at which time the men said, "Bitch, you aren't going anywhere." At some point, petitioner yelled at Williams for vomiting on the floor. Williams told Kress that she begged them not to do this to her. She also told Kress that one of the men had said: "If any mother fucker comes to me about this, you and your kids will go." Williams interpreted this to be a death threat. Kress testified that Williams cried throughout the entire interview. The court excluded testimony from Kress that the victim told her she had been raped before. Kress collected samples for the sexual assault kit.
Dr. Kathleen Cowling, the emergency room doctor, assisted in the gathering of evidence for the police. Williams also told Dr. Cowling that she had been penetrated vaginally, orally, and anally. Although there was no injury to the victim's vagina, there were two "significant" tears to the anus, although there was no bleeding. Dr. Cowling could not tell whether Williams had been orally or vaginally penetrated or not. However, Dr. Cowling indicated that the significance and depth of the lacerations in the victim's rectal area was consistent with being penetrated forcefully.
Marvin Pulliam, who was subsequently acquitted of these charges at a separate trial, testified that the victim consented to have sex with the men. Pulliam indicated that he and Williams attempted consensual intercourse. Williams then voluntarily performed fellatio on Pulliam and invited petitioner to have vaginal intercourse with her at the same time. Pulliam insisted that Williams and petitioner had consensual intercourse. Afterwards, petitioner offered the victim cab fare and she called a cab from the police station across the street. While waiting for the cab, Williams told petitioner and Pulliam that she was afraid that the men would tell her boyfriend about her having sex with them. Pulliam went with Williams in the taxicab. The cab driver dropped Williams off first. According to Pulliam, Williams was still talking about them not telling her boyfriend about this incident when she got out of the cab. The cab driver subsequently ordered Pulliam out of the cab because he was tired of all the directions that Pulliam was giving him.
Petitioner testified that he had known the victim and her boyfriend for years. On February 7th, he, Pulliarn, and Ricky Riley went to Williams' house. After drinking at her house for an hour or an hour and a half, the four left the apartment to purchase more beer, before heading to petitioner's apartment. Riley left with the car. Williams remained at petitioner's apartment. Williams, Pulliam, and petitioner drank beer for about an hour. Williams and Pulliam were sitting on petitioner's bed. At some point, petitioner turned to adjust the music. When he turned back, petitioner saw Williams and Pulliam kissing and Pulliam had her breasts in his hand. Pulliam and Williams asked petitioner to turn the lights off and Pulliam got on top of Williams and the two had consensual sex. After Pulliam got up, petitioner and Williams had consensual intercourse. Petitioner used a condom during the intercourse. Petitioner believed that Pulliam had sex with Williams again after he had finished having sex with her. The three drank some more after having sex and Williams asked the men not to tell her boyfriend about her having had sex with them.
The following morning, petitioner called a cab for Williams and gave her money for the cab fare. Williams went into the police station alone to call for a cab, but then asked petitioner to come into the police station so she could get the address. Petitioner observed four police officers inside the station. After Pulliam and Williams left, petitioner went to sleep. Petitioner denied having oral or anal sex with Williams. Petitioner also claimed that several times in the past, Williams had indicated that she wanted to have sex with him.
Over defense objection, the prosecutor called the cab driver Vernon Mall, Jr. as a rebuttal witness. Mall testified that Pulliam was one of the worst passengers that he ever had. Pulliam gave Mall a general direction but no specific destination for him to take them to. Mall recalled that it took a long time for Pulliam and the woman he was with to get into the car. Pulliam and the woman talked in the car, but Mall did not pay attention to the conversation. Mall indicated that there was nothing unusual about the woman. When Mall dropped the woman off, Pulliam talked with her for a long time until Mall interrupted. Pulliam would not give Mall a specific address to be taken to, but accused Mall of taking him the long way. At this point, Mall ordered Pulliam out of the car and pushed him away from him because he felt threatened by Pulliam. There was no argument about the fare, as Pulliam had previously testified to.
Petitioner's conviction was affirmed on appeal. People v. White, 200498 (Mich.Ct.App. February 26, 1999); lv. den. 461 Mich. 919; 604 N.W.2d 683 (1999). Petitioner now seeks the issuance of a writ of habeas corpus on the following grounds:
I. Defendant was denied a fair trial where the court failed to grant a mistrial or to strike certain evidence following the prosecutors's violation of the discovery order and failed to provide any remedy.
II. Defendant is entitled to a new trial where the prosecutor was allowed over objection to split his proofs and put on an improper rebuttal witness on a collateral point.
III. The court erred in allowing the prosecutor over defense objection to put in evidence that a gun was in the room when the gun was not charged in the information and played no part in the offense.
IV. The prosecutor's acts of misconduct during closing argument denied defendant a fair trial.
V. Defense counsel was ineffective in failing to object when required.II. STANDARD OF REVIEW
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); Harpster v. State of Ohio, 128 F.3d 322, 326 (6th Cir. 1997).
A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. An "unreasonable application" occurs when the state court identifies the correct legal principle from a Supreme Court's decision but unreasonably applies that principle to the facts of the prisoner's case. Williams v. Taylor, 529 U.S. 362, 412-413 (2000). A federal habeas court may not find a state adjudication to be "unreasonable" "simply because that court concludes in its independent judgment that the relevant state — court decision applied clearly established federal law erroneously or incorrectly." Id. at 411.
III. DISCUSSION
I. Petitioner was not denied a fair trial by the prosecutor's violation of the trial court's discovery order.
Petitioner first contends that the prosecutor violated the state trial court's discovery order by failing to turn over the reports of Kyle Hoskins or Linda Kress to defense counsel prior to trial. Petitioner claims that the trial court erred in failing to either strike the testimony of these two witnesses or to declare a mistrial, which had been requested by defense counsel.
To the extent that petitioner contends that the prosecutor violated Michigan's discovery rules, he would not be entitled to federal habeas relief on this claim. Violations of state law and procedure which do not infringe specific federal constitutional protections are not cognizable claims under Section 2254. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Federal habeas relief is not concerned with the violation of state discovery rules. See Johnston v. Bowersox, 119 F. Supp.2d 971, 981 (E.D. Mo. 2000) (internal citations omitted). Thus, even if the prosecutor violated Michigan's rules of discovery, that alone would not entitle petitioner to the issuance of a writ of habeas corpus.
To the extent that petitioner is arguing that the prosecutor violated his due process rights by failing to turn these materials over to counsel prior to trial, that claim also is without merit. Suppression by the prosecution of evidence favorable to the defendant upon request violates due process, where the evidence is material to either guilt or punishment of the defendant, irrespective of the good or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87 (1963). There are three components of a true Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) the evidence must have been suppressed by the state, either willfully or inadvertently; and (3) prejudice must have ensued. Strickler v. Greene, 527 U.S. 263, 281-282 (1999). To establish a Brady violation, a defendant has the burden of establishing that the prosecution suppressed evidence, that such evidence was favorable to the defendant, and that the evidence was material. Carter v. Bell, 218 F.3d 581, 601 (6th Cir. 2000). A Brady violation is grounds for setting aside a conviction or a sentence in a habeas proceeding only if the failure to disclose the relevant material "undermines confidence in the verdict because there is a reasonable possibility that there would have been a different result had the evidence been disclosed." Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998). Stated differently, there never is a real "Brady" violation unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different result. Coleman v. Mitchell, 244 F.3d 533, 541 (6th Cir. 2001) (quoting Strickler, 527 U.S. at 281).
Petitioner's due process claim fails for several reasons. First, these reports were turned over to defense counsel during trial and each witness testified about the contents of the reports. If previously undisclosed evidence is disclosed during trial, no Brady violation occurs unless the defendant is prejudiced by its nondisclosure. United States v. Word, 806 F.2d 658, 665 (6th Cir. 1986); See also United States v. Bencs, 28 F.3d 555, 560-561 (6th Cir. 1994). Because this evidence was disclosed during trial, petitioner would be unable to establish a Brady claim unless he can show that he was somehow prejudiced by the late disclosure of the information.
Petitioner is unable to show any prejudice from the late disclosure of these reports. Petitioner's due process claim fails because he had been unable to demonstrate that either Hoskins' report or Kress's report contained any exculpatory information. There is no duty for the prosecutor to disclose evidence that is:
1. neutral, speculative, or inculpatory; 2. available to the defense from other sources; 3. not in the possession of the prosecutor; or, 4. over which the prosecutor has no actual or constructive control.United States v. Flores-Mireles, 112 F.3d 337, 340 (8th Cir. 1997).
With respect to Hoskins's report, petitioner has failed to identify anything within the report that would have exculpated petitioner. Hoskins testified that she could not include petitioner as a contributor on the oral or rectal swabs taken from the victim, but she did not indicate that she could exclude him either. Hoskins also testified that petitioner's seminal fluid was found on the blanket and sheets taken from petitioner's apartment. Since petitioner admitted having sexual intercourse with the victim, albeit with her consent, this evidence would be neither exculpatory or inculpatory. Because Hoskins' testimony was neutral, at best, petitioner is unable to establish a Brady violation by the failure of the prosecutor to turn these reports over to defense counsel prior to trial.
Petitioner's claim with regards to Linda Kress's records has even less merit. The records indicate that the victim told Kress that petitioner threatened to kill her. This evidence was actually harmful to petitioner's case. Brady does not require the government to disclose inculpatory evidence. United States v. Gonzales, 90 F.3d 1363, 1368 (8th Cir. 1996). Although petitioner claims that this statement by the victim that petitioner threatened to kill her if she reported the assault to anyone was inconsistent with the victim's in court testimony that petitioner threatened to hurt her, the Court is not convinced that this was significant impeachment testimony. Evidence is not exculpatory or impeaching under Brady where it does not contradict any testimony offered by the witness at trial. See Thompson v. Cain, 161 F.3d 802, 807 (5th Cir. 1998). The statement made by the victim to Kress that "if any mother fucker comes to me about this, you and your kids will go," was not really inconsistent with the victim's testimony that petitioner threatened to hurt her if she reported the rape to anyone. Because the victim's testimony concerning threats was inconsistent with her statement to Nurse Kress only as to minor details, there was no duty under Brady for the prosecutor to disclose these prior statements to petitioner. See United States v. Allen, 247 F.3d 741, 772 (8th Cir. 2001).
Petitioner also claims that the prosecutor should have disclosed Kress's report to him prior to trial because the victim told Kress that she had been sexually assaulted on a prior occasion. Petitioner claims that if this information had been made available to him prior to trial, he could have investigated to determine whether this prior sexual allegation by the victim was false. Petitioner, however, offers no evidence that the victim's prior sexual assault allegation was false. Allegations that are merely conclusionary or which are purely speculative can not support a Brady claim. Murphy v. Johnson, 205 F.3d 809, 814 (5th Cir. 2000); cert. den. 121 S.Ct. 380 (2000). There is nothing from Kress's report to indicate that this prior allegation was false. The government cannot be held responsible for failing to disclose merely speculative evidence. United States v. Bhutani, 175 F.3d 572, 577 (7th Cir. 1999) (citing to United States v. Agurs, 427 U.S. 97, 109, n. 16 (1976)). Because petitioner has offered no proof that this prior sexual assault allegation was false, he is unable to demonstrate that the prosecutor violated Brady or that he was deprived of a fair trial. Petitioner is not entitled to habeas relief on his first claim.
II. Petitioner is not entitled to habeas relief on the state trial court's evidentiary rulings.
Petitioner's second and third claims have been Consolidated for judicial economy. In his second claim, petitioner alleges that the trial court improperly permitted Vernon Mall, Jr. to be called as a rebuttal witness on a collateral point. In his third claim, petitioner alleges that he was deprived of due process when the trial court permitted testimony and arguments concerning a firearm that was in petitioner's room at the time of the assault.
Habeas review does not encompass state court rulings on the admission of evidence unless there is a federal constitutional violation. Clemmons v. Sowders, 34 F.3d 352, 357 (6th Cir. 1994); Fuson v. Jago, 773 F.2d 55, 59 (6th Cir. 1985). Only where the erroneous application of state law deprives a petitioner of a fundamental constitutional guarantee will a federal court inquire into the state court rulings. Donnelly v. De Christoforo, 416 U.S. 637, 642-643 (1974); Fuson v. Jago, 773 F.2d at 59. Errors by a state court in the admission of evidence are not cognizable in habeas corpus proceedings unless they so perniciously affect the prosecution of a criminal case so as to deny the defendant the fundamental right to a fair trial. Welch v. Burke, 49 F. Supp.2d 992, 1000 (E.D. Mich. 1999).
In his second claim, petitioner alleges that the prosecutor was allowed over objection to split his proofs and put on Vernon Mall as an improper rebuttal witness to testify on a collateral point involving Pulliam's behavior in the taxicab. Petitioner claims that Mall's testimony should have been presented in the prosecutor's case-in-chief, and that by presenting him instead as a rebuttal witness, the prosecutor deprived petitioner of a fair trial.
A trial court possesses particularly broad discretion to determine the permissible areas of inquiry on rebuttal. Castro v. Sullivan, 662 F. Supp. 745, 748 (S.D.N.Y. 1987). In rejecting petitioner's claim, the Michigan Court of Appeals found Mall to be an appropriate rebuttal witness because he was called to "impugn Pulliam's credibility after Pulliam testified on defendant's behalf". People v. White, Slip. Op. at *4. The Michigan Court of Appeals further noted that Mall's testimony was responsive to Pulliam's testimony in regards to his behavior and the victim's behavior during the cab ride home following the assault. Id.
The Michigan Court of Appeals' ruling upholding the propriety of calling Mall as a rebuttal witness precludes federal habeas relief, absent a showing that the ruling violated a specific constitutional provision or that it was so prejudicial that it violated due process. See Pickens v. Lockhart, 802 F. Supp. 208, 217 (E.D. Ark. 1992). In light of the "wide latitude" given to states with regards to evidentiary matters and rulings under the Due Process Clause, this Court cannot say that petitioner's due process rights were violated by the prosecutor's introduction of the testimony of Vernon Mall as a rebuttal witness. Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000); cert. den. 121 S.Ct. 1643 (2001). In this case, the Michigan Court of Appeals' determination that Vernon Mall was a proper rebuttal witness was not an unreasonable determination. "[T)he proper function of rebuttal evidence is to contradict, impeach, or defuse the impact of evidence offered by an adverse party." United States v. Levy, 904 F.2d 1026, 1031 (6th Cir. 1990) (quoting United States v. Papia, 560 F.2d 827, 848 (7th Cir. 1977)). Petitioner offered Marvin Pulliam's testimony to establish that the victim consented to have sex with both men. Part of the consent defense included testimony by both Pulliam and petitioner that they paid for the victim to take a cab home. The testimony of Mall, who drove the cab, could have been used to contradict, impeach, or defuse the impact of Pulliam's testimony concerning the circumstances surrounding the cab ride home. The state court's ruling did not therefore violate petitioner's right to a fair trial or due process.
In his third claim, petitioner claims that the trial court improperly introduced irrelevant and inflammatory evidence concerning the presence of a rifle or shotgun during the assault. Petitioner claims that evidence of a weapon was more prejudicial than probative, because petitioner was not charged with criminal sexual conduct under a theory that a weapon had been used during the assault and the victim admitted that the weapon was never pointed at her during the assault. In rejecting this claim, the Michigan Court of Appeals found that admission of the evidence concerning the firearm was not improper because even though the victim testified that the rifle had nothing to do with the sexual assaults, she testified that the gun's presence contributed to her fear during the assault. Thus, this evidence was relevant to the issue of force or coercion. People v. White, Slip. Op. at *5. The Michigan Court of Appeals further found that admission of this evidence was harmless, in light of the fact that the victim herself "minimized the importance of this evidence by testifying that the firearm had nothing to do with the instant offense." Id.
The fact that irrelevant evidence may have been admitted at petitioner's trial does not rise to a constitutional error in federal habeas review. Fuller v. Johnson, 114 F.3d 491, 498 (5th Cir. 1997); See also Robertson v. Hanks, 140 F.3d 707, 712 (7th Cir. 1998). In addition, appraisals of the probative and prejudicial value of evidence are entrusted to the sound discretion of a state trial court judge, and a federal court considering a habeas petition must not disturb that appraisal absent an error of constitutional dimensions. See United States ex. rel. Gonzalez v. DeTella, 918 F. Supp. 1214, 1220 (N.D. Ill. 1996). Whether the admission of prejudicial evidence in a criminal trial constitutes a denial of fundamental fairness, so as to warrant federal habeas relief, turns upon whether the evidence is material in the sense of a crucial, critical highly significant factor. Brown v. O'Dea, 227 F.3d 642, 645 (6th Cir. 2000); cert. den. 121 S.Ct. 1744 (2001).
In the present case, the issue of whether the victim had been forced or coerced into having sex with petitioner and Marvin Pulliam or whether she consented to sex with the two men was a highly significant factor in this case. Williams testified that earlier in the evening, the two men and a third associate had shot off the gun in her backyard and that this had scared her. Williams testified that the gun was present by the refrigerator at the time that she was being assaulted on the bed. Officer Tinglan testified that this refrigerator was only two and a half to three feet away from the bed. The victim testified that the presence of this weapon contributed to her fear during the assault and was thus relevant to whether she consented to have sex with petitioner. Petitioner is unable to show that the trial court's decision to admit evidence concerning this weapon deprived him of a fair trial or due process.
Petitioner is not entitled to habeas relief on his second or third claims.
III. Petitioner was not denied a fair trial or due process because of prosecutorial misconduct.
In his fourth claim, petitioner claims that he was deprived of a fair trial because of prosecutorial misconduct.
When a petitioner seeking habeas relief makes a claim of prosecutorial misconduct, the reviewing court must consider that the touchstone of due process is the fairness of the trial, not the culpability of the prosecutor. On habeas review, a court's role is to determine whether the conduct was so egregious as to render the entire trial fundamentally unfair. Serra v. Michigan Department of Corrections, 4 F.3d 1348, 1355-1356 (6th Cir. 1993). Because this case is a habeas case and is not a direct appeal, the inquiry into this issue is less stringent. Spalla v. Foltz, 615 F. Supp. 224, 227 (E.D. Mich. 1985). When analyzing a claim of prosecutorial misconduct, a court must initially decide whether the challenged statements were improper. Boyle v. Million, 201 F.3d 711, 717 (6th Cir. 2000). If the conduct is improper, the district court must then examine whether the statements or remarks are so flagrant as to constitute a denial of due process and warrant granting a writ. Id. In evaluating prosecutorial misconduct in a habeas case, consideration should be given to the degree to which the challenged remarks had a tendency to mislead the jury and to prejudice the accused, whether they were isolated or extensive, whether they were deliberately or accidentally placed before the jury, and, except in the sentencing phase of a capital murder case, the strength of the competent proof against the accused. Serra, 4 F.3d at 1355-1356.
Petitioner first claims that the prosecutor argued facts not in evidence and improperly appealed to the emotions of the jury and made a "civic duty" argument in his closing argument with the following remarks:
It is not an exaggeration to say in this case that Kim Williams was turned into an animal for the benefit of or the pleasure of the defendant James White and his accomplice Marvin Pulliam.
They decided some time on February 7th or 8th, 1996, to quit treating her like a person and to enslave her to whatever wishes they wanted to fulfill that night. They deprived her of her freedom, her privacy and her dignity, and then and now for the rest of her life, her peace of mind. For as long as she must remember that night and relive that night every time she remembers it, whether testifying, whether in a new relationship with someone else, or with Curlie [her boyfriend], or dealing with any issues like this, she will experience fear, anxiety —
MR. THICK [defense counsel]: Your Honor, I am going to object. There has been no testimony of this at all. This is absolutely out of the realm of this trial.
THE COURT: Well, the jury will weigh of course whether the statements of counsel are true or not, and so you may proceed.
MR. DUGGAN [the prosecutor]: Thank you Your Honor. As she must relive to this night, tears will come to her eyes, as they came to her eyes in this trial. Anger will overwhelm her, and you saw that anger even now, this is October, November, when she's testified about something that happened in February. She can't ever get even. How could she get even?
She looks to you as the jury in this case that heard her testimony and all the evidence, to arrive at justice, so that at least after your verdict is entered, if your verdict is guilty, and there is an imposition of punishment as deemed appropriate by the Court, she can at least try to put this more behind her. (Trial Tr., Vol. III, pp. 131-132).
It is improper for a prosecutor during closing arguments to bring to the jury any purported facts which have not been introduced into evidence and which are prejudicial; however, prosecutors must be given leeway to argue reasonable inferences from the evidence. Byrd v. Collins, 209 F.3d 486, 535 (6th Cir. 2000); cert. den. 121 S.Ct. 786 (2001) (internal citations omitted). A broad range of rhetorical devices are allowed in a prosecutor's closing argument without requiring reversal on federal habeas review. See Leslie v. Artuz, 72 F. Supp.2d 267, 278 (S.D.N.Y. 1999); aff'd 230 F.3d 25 (2nd Cir. 2000); cert. den. 121 S.Ct. 1206 (2001). In this case, it could be reasonable to infer from the victim's testimony about being sexually assaulted repeatedly by petitioner and his co-defendant throughout the night that she would be traumatized by this event. The prosecutor's comments do not entitle petitioner to habeas relief because the jury was free to accept or reject this inference that the victim would have no peace and would be unable to forget this incident depending upon all the evidence. Howard v. Gavin, 844 F. Supp. 173, 176 (S.D.N.Y. 1994). Moreover, even if the prosecutor's appeals to the jury's emotions was improper, this would be insufficient to render the trial fundamentally unfair, since it was likely that the nature of the crime itself would have produced juror sympathy before the prosecutor made any of these comments. See Walker v. Gibson, 228 F.3d 1217, 1243 (10th Cir. 2000).
Moreover, even if these comments were improper, they would not entitle petitioner to habeas relief. These comments were a small part of an argument that focused on the evidence in this case. ( Id. at pp. 131-151). The prosecutor at the outset of his closing argument advised the jurors that what he said wasn't evidence. ( Id. at p. 131). When defense counsel objected to the complained of remarks, the trial court interjected and indicated that it would be up to the jury to decide whether the statements of counsel were true or not. ( Id. at p. 132). The court later instructed the jury that the lawyer's statements and arguments were not evidence. ( Id. at p. 159). The trial court also advised the jury that they must not let sympathy or prejudice influence their decision. ( Id. at p. 157). Because the prosecutor's remarks were only a small part of an argument that focused heavily on summarizing the evidence and both the prosecutor and the trial judge informed the jury that the arguments were not evidence, federal habeas relief is not warranted. Byrd v. Collins, 209 F.3d at 532-533. Lastly, the trial court's instruction to the jury that they must not let prejudice or sympathy influence their decision defeats petitioner's claim that he was deprived of a fair trial because of an improper "civic duty" argument. See e.g. Cameron v. Pitcher, 2001 WL 85893, *10 (E.D. Mich. January 4, 2001).
Petitioner also claims that the prosecutor improperly shifted the burden of proof with the following remarks:
As you think how much is at stake, that should also have an impact in deciding again who do you believe and what does the evidence show. What does Kim Williams get by coming in here and saying he raped me and his buddy raped me over and over again on February 8, 1996 at 210 South Weadock, unless it happened? What value is that to her? What's been shown that that helps her life to say that happened if it didn't happen? And all the evidence says that it did happen. ( Id. at p. 150).
Although a prosecutor may not comment on the failure of a defendant to produce evidence, the prosecutor may summarize the evidence and comment on its quantitative and qualitative significance. United States v. Bond, 22 F.3d 662, 669 (6th Cir. 1994); Byrd v. Collins, 209 F.3d at 534, fn. 41. It is permissible for a prosecutor to point to an absence of evidence that might reflect negatively on her witness, so long as that she does not suggest the existence of undisclosed facts that would support a favorable credibility determination. United States v. Walker, 155 F.3d 180, 188 (3rd Cir. 1998).
In the present case, the prosecutor did not shift the burden of proof because his argument merely pointed to the absence of any evidence that pointed to a reason for the victim to fabricate this story. Moreover, at the outset of his closing argument, the prosecutor indicated that he had the burden of proof. ( Id. at p. 131). The trial court instructed the jury that petitioner was presumed innocent and that the prosecutor had the entire burden of proving petitioner guilty beyond a reasonable doubt. ( Id. at p. 158). The prosecutor's argument did not shift the burden of proof to petitioner because any possible prejudice which might otherwise have resulted from the comment was cured by the trial court's instructions regarding the burden of proof. Lugo v. Kuhlmann, 68 F. Supp.2d 347, 369 (S.D.N.Y. 1999); Russ v. Stegall, 2000 WL 791753, *4 (E.D. Mich. June 8, 2000).
Petitioner's fourth claim is without merit.
IV. Petitioner was not deprived of the effective assistance of counsel.
In his fifth and final claim, petitioner claims that he was deprived of the effective assistance of counsel because his counsel failed to object to all of the prosecutor's improper arguments and for failing to reiterate his objection to the rebuttal testimony of Vernon Mall.
To show that he was denied the effective assistance of counsel under federal constitutional standards, a defendant must satisfy a two prong test. First, the defendant must demonstrate that, considering all of the circumstances, counsel's performance was so deficient that the attorney was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, the defendant must overcome a strong presumption that counsel's behavior lies within the wide range of reasonable professional assistance. Id.; O'Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994). In other words, petitioner must overcome the presumption that, under the circumstances, the challenged action might be sound trial strategy. Strickland, 466 U.S. at 689. Second, the defendant must show that such performance prejudiced his defense. Id. To demonstrate prejudice, the defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.
Petitioner first claims that counsel was ineffective for failing to object to some of the instances of prosecutorial misconduct that he raised in this petition. Because this Court concludes that the prosecutor's remarks in closing argument did not prejudice petitioner so as to deprive him of a fair trial, petitioner's claim that counsel rendered ineffective assistance of counsel by failing to object to the prosecutor's remarks must also be rejected. United States v. Nwankwo, 2 F. Supp.2d 765, 770 (D. Md. 1998); Rich v. Curtis, 2000 WL 1772628, *8 (E.D. Mich. October 24, 2000).
Petitioner lastly claims that counsel was ineffective for failing to reiterate his earlier objection to the rebuttal testimony of Vernon Mall. Trial counsel's failure to object to Mall's testimony did not amount to the ineffective assistance of counsel, where Mall was a true rebuttal witness. See Green v. Norris, 12 F.3d 821, 823 (8th Cir. 1993). Petitioner is not entitled to habeas relief on his final claim.
IV. CONCLUSION
The Court will deny the petition for writ of habeas corpus. The Court will also deny a certificate of appealability to petitioner. In order to obtain a certificate of appealability, a prisoner must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253 (c) (2). To demonstrate this denial, the applicant is required to show that reasonable jurists could debate whether, or agree that, the petition should have been resolved in a different manner, or that the issues presented were adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 S.Ct. 473, 483-484 (2000). When a district court rejects a habeas petitioner's constitutional claims on the merits, the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims to be debatable or wrong. Id. at 484. For the reasons stated in this opinion, the Court will deny petitioner a certificate of appealability because he has failed to make a substantial showing of the denial of a federal constitutional right. The Court will also deny petitioner leave to appeal in forma pauperis. A habeas petitioner seeking to appeal the denial of a habeas petition will not be permitted to proceed in forma pauperis, where the appeal would be frivolous. Hence v. Smith, 49 F. Supp.2d 547, 549 (E.D. Mich. 1999) (Gadola, J.).
V. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED That a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that petitioner will be DENIED leave to appeal in forma pauperis.