Opinion
CIVIL ACTION FILE NO. 1:00-CV-1360-TWT.
April 6, 2001.
ORDER
This is an pro se Petition for the Writ of Habeas Corpus. It is before the Court on the Report and Recommendation [Doc. 15] of the Magistrate Judge recommending dismissing the Petition. The facts are set forth in the thorough and well reasoned Report and Recommendation, a copy of which is attached hereto as Appendix A. The Court approves and adopts the Report and Recommendation as the judgment of the Court. After the Petition was filed, an attorney entered an appearance on behalf of Petitioner. She filed a timely Objection to the Report and Recommendation. The Objection addresses the most difficult issue in this case. On the first day of trial, a Doraville police officer on two occasions testified without objection that Petitioner was given his Miranda warnings and chose to remain silent.(Transcript, Vol. I, pp. 78-81) [Doc. 13]. This testimony was clearly objectionable under Doyle v. Ohio, 426 U.S. 610, 611 (1976). It is well established that after Miranda warnings have been given, the government cannot fairly use a defendant's silence against him at trial as evidence of guilt. Wainwright v. Greenfield, 474 U.S. 284, 292 (1986) (silence cannot be used as affirmative proof of a fact in issue); Griffin v. California, 380 U.S. 609 (1965) (Fifth Amendment prohibits prosecutorial comment on defendant's silence); United States v. Rivera, 944 F.2d 1563, 1567 (11th Cir. 1991) (silence cannot be used as evidence of guilt). Recent Eleventh Circuit cases on this issue include United States v. Tenorio, 69 F.3d 1103, 1106 (11th Cir. 1995) and Hill v. Turpin, 135 F.3d 1411, 1413-14 (11th Cir. 1998). In the context of 28 U.S.C. § 2254, this is clearly established law determined by the Supreme Court of the United States.
As noted in the Report and Recommendation, Petitioner raised this claim of ineffective assistance of counsel in his direct appeal to the Georgia Supreme Court. That court held:
Yi fails to show that his trial counsel's performance prejudiced him. An investigating officer testified twice at trial that he read the defendant his rights under Miranda v. Arizona and the defendant stated that he did not want to talk to police at that time. This testimony was improper, but trial counsel failed to object to it. Even if trial counsel performed deficiently in failing to object, Yi has not shown prejudice. Contrary to the defendant's argument, the prosecutor never referred to the defendant's post-arrest silence during closing argument. More important, no witness or physical evidence corroborated Yi's testimony that he shot the victim in self-defense during mutual combat. Without any evidence to support Yi's self-defense theory, he has failed to show that the jury would have reached a different result but for his trial counsel's error. Therefore, we affirm.Yi v. State, 267 Ga. 171, 172-73 (1996).
Considered in isolation, the penultimate sentence of the Georgia Supreme Court's opinion might indicate that the court applied the wrong legal standard in evaluating Petitioner's claim of ineffective assistance of counsel. The legal standard for granting relief is a reasonable probability that without counsel's errors the jury would have had a reasonable doubt concerning guilt. Strickland v. Washington, 466 U.S. 668, 694 (1984). As the United States Supreme Court recently held:
If a state court were to reject a prisoner's claim of ineffective assistance of counsel on the grounds that the prisoner had not established by a preponderance of the evidence that the result of his criminal proceeding would have been different, that decision would be "diametrically different," "opposite in character or nature," and "mutually opposed" to our clearly established precedent because we held in Strickland that the prisoner need only demonstrate a "reasonable probability that . . . the result of the proceeding would have been different."Williams v. Taylor, 529 U.S. 362, 405-06 (2000) (O'Connor, J. writing for the Court in Part II). The penultimate sentence of the opinion of the Georgia Supreme Court would appear to fall squarely within Justice O'Connor's hypothetical. Nevertheless, earlier in the opinion, the Georgia Supreme Court correctly cited Strickland for the rule that "[i]n considering prejudice, the defendant has the burden of showing a reasonable probability that without counsel's errors the jury would have had a reasonable doubt concerning guilt." Yi, 267 Ga. at 172. It seems unlikely that the Georgia Supreme Court would articulate the correct standard and then apply an incorrect rule. It is the judgment of this Court that the Georgia Supreme Court applied the correct rule of law in ruling upon the issue of prejudice due to ineffective assistance of counsel.
Notwithstanding this conclusion, this Court has carefully and independently reviewed the transcript of Petitioner's trial to determine whether there was a "reasonable probability" that the outcome would have been different but for the failure of counsel to object to the inadmissable testimony of the officer that Petitioner chose to exercise his right to remain silent. The evidence overwhelmingly pointed to Petitioner's guilt; that evidence is summarized in the Report and Recommendation. The inadmissible evidence consists of 2 sentences in a transcript containing 620 pages of testimony. This is not a case where Petitioner's "silence was the touchstone of the government's case-in-chief, its cross-examination of the defendant, and its closing argument during this trial of short duration." United States v. Tenorio, 69 F.3d 1103, 1107 (11th Cir. 1995). After the officer's testimony, there was no further reference to Petitioner's silence in the State's direct evidence, cross examination of Petitioner or closing argument. This is not a case where the "repeated and deliberate nature of the prosecution's Doyle violations and the significant weaknesses in the state's case" lead to the conclusion that the errors "had a substantial influence in determining the jury's verdict." Hill v. Turpin, 135 F.3d 1411, 1416-17 (11th Cir. 1998). Petitioner has not shown a "reasonable probability" that the outcome would have been different but for the failure of counsel to object to the inadmissable testimony of the officer that Petitioner chose to exercise his right to remain silent. The remaining claims are without merit for the reasons stated in the Report and Recommendation. The Petition [Doc. 1] is DISMISSED.