O'Bryant v. Nunn ( 2022 )

Appellate Case: 22-6098 Document: 010110784513 Date Filed: 12/16/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 16, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
ALEN DEAN O’BRYANT,
Petitioner - Appellant,
v. No. 22-6098
(D.C. No. 5:21-CV-00153-R)
SCOTT NUNN, Warden, (W.D. Okla.)
Respondent - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before HARTZ, BALDOCK, and McHUGH, Circuit Judges.
_________________________________
An Oklahoma jury convicted petitioner Alen Dean O’Bryant of four counts of
child sexual abuse and the state court sentenced him to four consecutive terms of life
imprisonment. Mr. O’Bryant argues his convictions violated his constitutional rights
because he received ineffective assistance of trial counsel, state witnesses and the
prosecutor impermissibly vouched for the victim and otherwise prejudiced
Mr. O’Bryant, and cumulative error rendered the trial fundamentally unfair.
After failing to obtain relief in the state courts, Mr. O’Bryant submitted a
federal habeas corpus petition under 28 U.S.C. § 2254. The district court denied the
*
This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.
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petition and declined to issue a certificate of appealability (“COA”). Mr. O’Bryant
subsequently applied for a COA from this court. Because Mr. O’Bryant fails to make
a substantial showing of a constitutional violation, we decline to issue a COA and we
dismiss this matter.
I. BACKGROUND
In 2018, an Oklahoma jury convicted Mr. O’Bryant of four counts of child
sexual abuse. The jury heard testimony from the child, her mother, and individuals to
whom she allegedly disclosed the abuse: her school principal, her school counselor,
the Department of Human Services (“DHS”) caseworker handling her case, the
medical examiner, and the forensic interviewer. The jury also heard from two defense
witnesses: a friend of the child’s family, who was also the child’s pediatrician, and an
expert witness who was a pediatric psychologist. The court sentenced Mr. O’Bryant
to four consecutive life sentences.
On direct appeal, Mr. O’Bryant argued he received ineffective assistance of
counsel in violation of his Sixth and Fourteenth Amendment rights. As relevant here,
he argued counsel performed deficiently by failing to (1) present extrinsic evidence
to impeach the child’s mother, who testified she believed her daughter’s allegations
against Mr. O’Bryant after an initial period of doubt; (2) object to the introduction of
a video recording of the forensic interview of the child as cumulative; (3) object to
testimony by various witnesses who improperly vouched for the child’s credibility,
particularly the medical examiner, who testified she found the child’s statements to
be consistent with her statements in the forensic interview; and (4) adequately advise
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Mr. O’Bryant of his right to testify by failing to prepare him to testify, perform mock
examinations or cross-examinations, or discuss what to expect if he did choose to
testify, rendering his waiver of his right to testify involuntary and unknowing.
Mr. O’Bryant argued these failures prejudiced him.
As relevant here, Mr. O’Bryant also argued the trial court allowed testimony
by various witnesses that bolstered the child’s credibility in violation of state
evidentiary law. He particularly objected to the medical examiner’s testimony that in
the majority of cases, children do not lie about sexual abuse; that she found the
child’s statements reliable because they were consistent with her statements in the
forensic interview; and that in 95% of cases in which sexual abuse has occurred there
are no abnormal medical findings that would indicate abuse. Mr. O’Bryant also
argued the prosecutor improperly vouched for the child’s truthfulness and called
Mr. O’Bryant a liar, rendering his trial fundamentally unfair in violation of the Fifth
and Fourteenth Amendments. Finally, he argued cumulative error denied him a fair
trial.1
The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed Mr. O’Bryant’s
conviction in a Summary Opinion. The OCCA concluded Mr. O’Bryant was not
denied the effective assistance of counsel under Strickland v. Washington, 466 U.S.
668, 687 (1984), because counsel’s actions did not fall below reasonable standards of
1
Mr. O’Bryant also argued the trial court erred under state evidentiary law by
admitting hearsay evidence and the state statute allowing child hearsay evidence to
be introduced violated the Sixth Amendment. Mr. O’Bryant does not renew these
arguments in his habeas petition.
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professional conduct and any objections to the complained-of evidence would have
been overruled. It also concluded the medical examiner did not impermissibly vouch
for the child. The OCCA further determined Mr. O’Bryant had forfeited his
arguments as to other witnesses and the prosecutor by failing to object at trial, and on
plain error review, the OCCA determined the statements were not improper. Finally,
the OCCA concluded there were no individual errors that could have contributed to
cumulative error.
Mr. O’Bryant sought relief under 28 U.S.C. § 2254 in the United States District
Court for the Western District of Oklahoma. After reviewing the petition on the merits
and receiving the recommendation of a magistrate judge, the district court denied
relief and declined to issue a COA.
As to the ineffective assistance of counsel claim, the district court concluded
the OCCA’s determination that Mr. O’Bryant suffered no such deprivation to be
reasonable because (1) the decision not to introduce extrinsic evidence was a
reasonable tactical decision, (2) any objection to the complained-of testimony would
have been overruled, and (3) Mr. O’Bryant cannot show he was unaware of his right
to testify because he explicitly waived that right and alleged no facts showing his
counsel stopped him from exercising it.
The district court also determined that the OCCA’s conclusion the allegedly
vouching testimony did not deny Mr. O’Bryant a fair trial was reasonable. As to the
medical examiner’s testimony, the district court reasoned that even if it constituted
“vouching” it did not deny Mr. O’Bryant a fair trial because (1) it was not used to
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bolster the child’s credibility; instead, it was given in response to the defense’s
theory that the lack of medical findings meant lack of abuse, and that is the only
purpose for which the prosecution used it; and (2) the jury had a chance to evaluate
the child’s credibility for itself by hearing her testify and undergo cross-examination.
The district court found the OCCA’s decision as to the other witnesses’ allegedly
vouching testimony reasonable for similar reasons: the jury heard from the child
herself in direct and cross-examination, and the prosecutor’s statements were not
made to bolster the child’s credibility but to respond to a theory the defense had put
forward that the child. had fabricated the allegations.
As to the alleged prosecutorial misconduct, the district court determined the
OCCA’s decision was reasonable because it was not improper for the prosecutor to
draw “‘the jury’s attention to evidence that would enhance or diminish a witness’s
credibility’”; the prosecutor was not making the statements to bolster credibility but
to show that the defense theory made no sense; and the prosecutor did not indicate
any personal belief in the witnesses’ credibility or indicate he knew something more
than the evidence showed. ROA Vol. I at 248 (quoting Thornburg v. Mullin, 422 F.3d
1113, 1132 (10th Cir. 2005)). Furthermore, the district court noted the trial court
instructed the jurors that they “alone were to determine the credibility of witnesses.”
Id. The district court further indicated that the prosecutor’s referring to Mr. O’Bryant
as a liar was intended to point out an inconsistency in the defendant’s story and
therefore within the bounds of proper prosecutorial conduct. The district court also
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noted that, even if these acts constituted misconduct, they were not so inappropriate
as to render the trial fundamentally unfair.
Finally, the district court concluded the OCCA’s decision on cumulative error
was not contrary to or an unreasonable application of clearly established federal law
because Mr. O’Bryant had not established the existence of two or more errors. The
district court declined to issue a COA because Mr. O’Bryant had not demonstrated
that reasonable jurists would find the constitutional claims debatable.
Mr. O’Bryant now seeks a COA from this court.
II. DISCUSSION
A federal court may grant habeas relief only if the state court decision was
“contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States,” or “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)(1), (2). This is a highly deferential standard
designed to allow federal courts to interfere with state-court decisions only in cases
of “‘extreme malfunctions in the state criminal justice systems’” on issues of federal
law. Harrington v. Richter, 562 U.S. 86, 102 (2011) (quoting Jackson v. Virginia,
443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in judgment)). “Federal habeas
relief is not available to correct state law errors.” Leatherwood v. Allbaugh, 861 F.3d
1034, 1043 (10th Cir. 2017) (citing Estelle v. McGuire, 502 U.S. 62, 67–68 (1991)).
Where the state court decision rested on an independent and adequate state
procedural ground, such as failure to make a trial objection, the claim is procedurally
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barred from habeas review unless the state court proceeded to review for plain error
and denied relief because the claim lacked merit under federal law. Cargle v. Mullin,
317 F.3d 1196, 1206 (10th Cir. 2003) (“In such a case, there is no independent state
ground of decision and, thus, no basis for procedural bar. Consistent with that
conclusion, the state court’s disposition would be entitled to § 2254(d) deference
because it was a form of merits review.” (internal citation omitted)). Because
Oklahoma’s plain error test is virtually identical to a federal due process analysis, the
OCCA’s application of its plain error test “constitute[s] an adjudication on the merits
of [a] due process claim.” Hancock v. Trammell, 798 F.3d 1002, 1011–12 (10th Cir.
2015).
Before this court may examine the merits of a § 2254 petition, the petitioner
must obtain a COA from either the district court or this court. 28 U.S.C.
§ 2253(c)(1)(A). “A [COA] may issue . . . only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To show the
denial of a constitutional right, the “applicant should ‘include reference to a specific
federal constitutional guarantee, as well as a statement of the facts that entitle [him]
to relief.’” Leatherwood, 861 F.3d at 1043 (quoting Gray v. Netherland, 518 U.S.
152, 162–63 (1996)). We will grant a COA only if the petitioner “‘sho[ws] that
reasonable jurists could debate whether (or, for that matter, 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.’” Miller-El v. Cockrell, 537
U.S. 322, 336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
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The district court declined to issue a COA, so we must consider
Mr. O’Bryant’s application for a COA at the outset. Fed. R. App. P. 22(b)(2).
A. Ineffective Assistance of Counsel
Mr. O’Bryant first seeks a COA on whether he was denied the effective
assistance of counsel in violation of his Sixth and Fourteenth Amendment rights. He
contends trial counsel performed deficiently by failing to present impeachment
evidence, object to prejudicial testimony, and adequately advise him of his right to
testify.
To show ineffective assistance of counsel, a petitioner must show both that
counsel’s performance “fell below an objective standard of reasonableness” and “the
deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687–88. “Our
review of counsel’s performance under the first prong of Strickland is a highly
deferential one” and “the petitioner bears a heavy burden when it comes to
overcoming that presumption.” Harmon v. Sharp, 936 F.3d 1044, 1058 (10th Cir.
2019) (brackets and internal quotation marks omitted). “To be deficient, the
performance must be outside the wide range of professionally competent assistance.
In other words, it must have been completely unreasonable, not merely wrong.” Id.(quotation marks omitted). The Strickland standard “calls for an inquiry into the
objective reasonableness of counsel’s performance, not counsel’s subjective state of
mind.” Harrington, 562 U.S. at 110. Finally, to show prejudice, a petitioner must
demonstrate “that there is a reasonable probability that, but for counsel’s
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unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
In the § 2254 context, a state prisoner’s task in showing ineffective assistance is
even greater because we also defer to the state court’s determination that counsel’s
performance was not deficient. See Harmon, 936 F.3d at 1058 (describing review of
ineffective assistance claims in § 2254 petitions as “doubly deferential” (quoting
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009))). “When § 2254(d) applies, the
question is not whether counsel’s actions were reasonable. The question is whether
there is any reasonable argument that counsel satisfied Strickland’s deferential
standard.” Harrington, 562 U.S. at 105.
The OCCA determined trial counsel’s actions did not fall below reasonable
standards of professional conduct and trial counsel had not chosen a deficient
strategy. Reasonable jurists would agree that the district court properly denied habeas
relief under our highly deferential standard.
1. Failure to Present Extrinsic Evidence
Mr. O’Bryant argues counsel ought to have presented extrinsic evidence to try
to impeach the child’s mother. At trial, the child’s mother testified she had initially
disbelieved her daughter’s allegations but had come to believe them when she
watched the video of the forensic interview in which the child described the abuse in
detail. Mr. O’Bryant suggests counsel ought to have presented evidence implying the
child’s mother in fact never believed the child; she had only claimed to do so to get
her children back from state custody. The proffered evidence, Mr. O’Bryant
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maintains, would have included a statement from the child’s mother about her initial
disbelief of the allegations and the pressure she felt from DHS to say she believed the
child as well as affidavits, photographs, and text messages showing the child’s
mother continuing a relationship with Mr. O’Bryant even after she claimed to believe
he had sexually abused the child.
As the district court correctly found, the OCCA’s decision that these omissions
did not constitute ineffective assistance of counsel was consistent with Strickland
because the omissions were not unreasonable. Strickland, 466 U.S. at 687–88. To be
constitutionally deficient, the actions of counsel must be “completely unreasonable,
not merely wrong, so that they bear no relationship to a possible defense strategy.”
Fox v. Ward, 200 F.3d 1286, 1296 (10th Cir. 2000) (quotation marks, citation, and
brackets omitted). The alleged evidence would have been largely redundant of the
child’s mother’s live testimony—she admitted her initial and prolonged disbelief of
her daughter’s story, testified extensively about the pressure she felt from DHS to say
she believed her daughter to get her children back, and explained she did not want to
separate from Mr. O’Bryant but felt intense pressure from DHS to do so. Deciding
not to introduce duplicative evidence is a reasonable tactical decision. See DeRosa v.
Workman, 679 F.3d 1196, 1218–19 (10th Cir. 2012).
Moreover, there is no reasonable probability this evidence would have led
jurors to acquit Mr. O’Bryant. Duplicative evidence is “of only marginal value” and
we generally refuse to find its omission prejudicial. Hanson v. Sherrod, 797 F.3d
810, 832 (10th Cir. 2015). Furthermore, the jurors had plenty of evidence with which
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to make their own determination of the child’s credibility regardless of whether her
mother believed her: they heard the child testify about the abuse, saw the video
recording of the forensic interview, and heard other witnesses testify about the
child’s disclosures of abuse.
Because counsel’s failure to introduce extrinsic evidence was neither deficient
nor prejudicial, reasonable jurists would not debate that the district court properly
denied habeas relief on this basis.
2. Failure to Object to Cumulative and “Vouching” Testimony
Mr. O’Bryant next argues counsel was ineffective for failing to object to
certain evidence including (1) the video recording of the forensic interview as
cumulative of the child’s live testimony, and (2) the medical examiner’s testimony as
impermissibly “vouching” for the child under state law.
As the district court rightly determined, the OCCA’s decision that counsel was
not deficient on these grounds was reasonable because these objections would have
been futile. The OCCA found the video recording was not cumulative and the
challenged testimony did not constitute impermissible vouching under Oklahoma
law. Thus, any such objection would have been overruled, and failing to make futile
objections is neither deficient nor prejudicial. See Sperry v. McKune, 445 F.3d 1268,
1275 (10th Cir. 2006) (explaining failure to make meritless argument at trial was not
ineffective); Parker v. Scott, 394 F.3d 1302, 1321 (10th Cir. 2005) (denying habeas
relief where counsel failed to object to allegedly vouching statements because the
statements did not impermissibly vouch for the witness under Oklahoma law);
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Jackson v. Shanks, 143 F.3d 1313, 1320 (10th Cir. 1998) (explaining counsel’s
failure to make futile argument was neither deficient nor prejudicial).
3. Failure to Advise Mr. O’Bryant of His Right to Testify
Mr. O’Bryant argues trial counsel failed to advise him adequately regarding his
right to testify in his defense. He admits he acknowledged at trial that he had discussed
his right to testify with counsel and waived his right to do so, but he argues now he
was not fully informed because “there was no mock direct examination, and no
sample cross-examination, no discussion of what questions to expect, from either
defense counsel or the State, and no preparation at all for what that might have been
like or why it was important.” COA Request at 19.
The OCCA’s determination that counsel performed adequately is entitled to
deference. Harmon, 936 F.3d at 1058. But even if the OCCA’s decision was
unreasonable and counsel should have done more to prepare Mr. O’Bryant to testify,
Mr. O’Bryant has not shown that failure to do so prejudiced him. He suggests he
would have chosen to testify if he had been better informed because he was
defenseless without his own testimony. But he was not defenseless—defense counsel
vigorously cross-examined the State’s witnesses throughout the trial and put on two
defense witnesses to undermine the State’s evidence and raise doubts about
Mr. O’Bryant’s guilt. Furthermore, Mr. O’Bryant does not explain what testimony he
would have given or why it would have overcome the extensive evidence the jury
ultimately found credible. In sum, he has not shown a reasonable probability of a
different outcome had his counsel further discussed the possibility of testifying.
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Because reasonable jurists would not debate the district court’s denial of
habeas relief due to counsel’s failure to more fully inform him of his right to testify,
Mr. O’Bryant is not entitled to a COA on this issue.
B. Due Process
Mr. O’Bryant argues that various trial court failures and prosecutorial misconduct
rendered his trial fundamentally unfair in violation of his due process rights.
A criminal trial is fundamentally unfair in violation of due process if it is “fatally
infected” with acts “of such quality as necessarily prevents a fair trial.” Lisenba v.
California, 314 U.S. 219, 236 (1941). “[A]part from trials conducted in violation of
express constitutional mandates, a constitutionally unfair trial takes place only where the
barriers and safeguards are so relaxed or forgotten . . . that the proceeding is more a
spectacle or trial by ordeal than a disciplined contest.” United States v. Augenblick, 393
U.S. 348, 356 (1969) (first citing Moore v. Dempsey, 261 U.S. 86, 91 (1923) (explaining
trial would be constitutionally void if “counsel, jury and judge were swept to the fatal end
by an irresistible wave of public passion”); then citing Rideau v. Louisiana, 373 U.S. 723,
726 (1963) (finding due process violation where court denied change of venue because
local television program showed defendant confessing such that a local trial “could be but
a hollow formality”), overruled on other grounds by Brecht v. Abrahamson, 507 U.S. 619(1993); and then citing Brown v. Mississippi, 297 U.S. 278, 285–87 (1936) (holding
conviction and sentence based on brutally coerced confession to violate due process)).
The district court properly concluded Mr. O’Bryant showed no denial of due
process to justify habeas relief.
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1. Vouching for the Child
Mr. O’Bryant argues he was deprived of due process because the trial court
allowed various witnesses to vouch for the credibility of the child—i.e., the witnesses
allegedly told the jury whom to believe and thereby invaded the province of the jury
as the arbiters of credibility. He primarily objects to the medical examiner’s
testimony that (1) most children’s disclosures of sexual abuse are true, (2) she found
the child’s statements to her to be consistent with what she had been told of the
forensic interview, and (3) the lack of medical findings indicating sexual abuse did
not rule out sexual abuse but was in fact the norm in sexual abuse cases. He also
objects to (1) the DHS caseworker’s testimony that she did not think the child was
lying because the child never faltered in her story; (2) the forensic interviewer’s
statements that the acts described by the child were not something a child would talk
about unless they actually happened; and (3) the child’s mother’s statement that she
eventually came to believe the child’s allegations.
Mr. O’Bryant argued this claim to the OCCA exclusively under state law.
Analyzing the claim under state law, the OCCA found these witnesses did not engage
in impermissible vouching. The OCCA explained that the medical examiner’s
testimony “incidentally corroborated the other evidence but it did not tell jurors what
result to reach.” ROA Vol. I at 153. As for the other witnesses, the OCCA found the
objection to their testimony waived for lack of objection at trial. Proceeding to
review for plain error, the court determined the testimony did not improperly vouch
for the victim or tell the jury what result to reach.
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Mr. O’Bryant has not shown that the OCCA’s resolution of this issue was
contrary to established federal constitutional law. At the state-court level,
Mr. O’Bryant based his objection exclusively on state evidentiary rules, and “[a]
habeas applicant cannot transform a state law claim into a federal one merely by
attaching a due process label.” Leatherwood, 861 F.3d at 1043; see also Marshall v.
Lonberger, 459 U.S. 422, 438 n.6 (1983) (“[T]he Due Process Clause does not permit the
federal courts to engage in a finely tuned review of the wisdom of state evidentiary
rules”).
To the extent the OCCA reviewed for plain error, its decision was not contrary
to or an unreasonable application of any clearly established federal due process
standard. Mr. O’Bryant points to no Supreme Court case clearly establishing that
vouching testimony violates the Due Process Clause or renders a trial fundamentally
unfair. Cf. Parker, 394 F.3d at 1310 (rejecting argument by habeas petitioner that
vouching testimony violated due process because no Supreme Court case was on
point). The only Supreme Court case Mr. O’Bryant cites in support of his argument is
Aetna Life Ins. Co. v. Ward, 140 U.S. 76, 88–89 (1891), which upheld a jury
instruction that the jury could reject a diagnosis made by a medical expert if it did not
find it credible, explaining that it was the jury’s province to determine the credibility
of testimony and weigh it against contrary evidence. Aetna stands for the general
principle that the jury is the arbiter of credibility; Aetna does not discuss “vouching”
testimony at all or establish that such testimony violates due process.
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Furthermore, even if the challenged testimony constituted impermissible
vouching, it did not render the trial fundamentally unfair because these statements
had minimal, if any, effect on the trial’s outcome. See Hanson, 797 F.3d at 843 (“An
inquiry into the fundamental fairness of the trial requires an examination of the entire
proceedings, including the strength of the evidence against the [petitioner].”). The
jury heard from the child herself and could make its own credibility determinations
based on the child’s testimony and other testimony corroborating it, including others’
testimony about the child’s disclosures to them and about their professional
experiences with and/or understanding of childhood disclosures of sexual abuse.
Furthermore, the judge provided cautionary instructions to the jury about their role as
the sole arbiters of credibility.
Mr. O’Bryant attempts to shore up his argument with cases from this and other
circuits about the impermissibility of vouching testimony. Such authority cannot
substitute for a Supreme Court case on point. See Grant v. Trammell, 727 F.3d 1006,
1020 (10th Cir. 2013) (“‘[C]ircuit precedent may [not] be used to refine or sharpen a
general principle of Supreme Court jurisprudence into a specific legal rule.” (quoting
Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (per curiam))). Furthermore, vouching
testimony could be impermissible for any number of reasons without rendering the trial
fundamentally unfair.2 See, e.g., United States v. Vest, 116 F.3d 1179, 1185 (7th Cir.
2
None of the circuit court cases Mr. O’Bryant cites determined vouching
testimony rose to the level of a constitutional error. See United States v. Hill, 749 F.3d
1250, 1263 (10th Cir. 2014) (determining such testimony violated only the Federal
Rules of Evidence); Parker v. Scott, 394 F.3d 1302, 1310–12 (10th Cir. 2005)
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1997) (finding such testimony improper under the Federal Rules of Evidence but
concluding it did not render the trial unfair).
Finally, even if vouching testimony might render a trial fundamentally unfair,
Mr. O’Bryant has not shown it rendered his trial fundamentally unfair. The Supreme
Court has found trials fundamentally unfair in circumstances in which the unfairness
so pervaded every aspect of the trial that it rendered the trial a sham. See Lisenba,
314 U.S. at 236–37 (explaining use of a coerced confession to obtain a guilty verdict
rendered a trial fundamentally unfair); Moore, 261 U.S. at 89–92 (concluding a trial
was fundamentally unfair where petitioners were convicted of murder and sentenced
to death at a time of inflamed public opinion due to a race riot and they were
represented by an attorney appointed at the beginning of the forty-five-minute trial).
The challenged evidence here—limited in scope and duration, largely offered to rebut
defense theories rather than bolster credibility, and tempered by instructions from the
court—did not undermine the trial’s basic integrity.
(determining that the OCCA had not ruled unreasonably by denying relief based on
allegedly vouching testimony very similar to the testimony here); Nimely v. City of New
York, 414 F.3d 381, 398 (2d Cir. 2005) (determining vouching testimony violated the
Federal Rules of Evidence); United States v. Vest, 116 F.3d 1179, 1185 (7th Cir.
1997) (finding such testimony improper under the Federal Rules of Evidence but
concluding the district court did not plainly err because of the judge’s cautionary
instructions and the limited duration of the testimony); Engesser v. Dooley, 457 F.3d
731, 736–38 (8th Cir. 2006) (finding it reasonable for the state court to find witness’s
testimony about another witness’s credibility not to render the trial fundamentally
unfair); United States v. Alcantara-Castillo, 788 F.3d 1186, 1197–98 (9th Cir. 2005)
(finding a due process error based on prosecutorial misconduct in eliciting vouching
testimony but not based on the presence of the vouching testimony itself).
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In sum, reasonable jurists would agree that the district court properly denied
habeas relief on this ground because there is no clearly established constitutional rule
against vouching testimony, and even if the challenged testimony was improper, it
did not render the trial fundamentally unfair.
2. Prosecutorial Misconduct
Mr. O’Bryant contends that several statements by the prosecutor in closing
arguments violated his due process rights, including (1) vouching for the child by
calling her description of abuse unexpected and shocking and suggesting her mother
was being truthful when she said she believed the child, and (2) calling Mr. O’Bryant
a liar for telling a police officer he could not have abused the child because he was
impotent while his ex-wife testified his impotence was successfully treated at the
time.
The OCCA noted that none of the alleged misconduct was objected to at trial
and determined there was no plain error because the prosecutor’s statements were
proper comments on the evidence or were made in response to the arguments of
defense counsel.
The district court correctly determined the OCCA’s rejection of the
prosecutorial misconduct claim was not contrary to clearly established constitutional
law. To be sure, the Supreme Court has been clear that prosecutors must not inject
their personal opinions about evidence into a trial. See Darden v. Wainwright, 477
U.S. 168, 180–83 (1986); id. at 189–92 (Blackmun, Brennan, Marshall and Stevens,
JJ., dissenting); United States v. Young, 470 U.S. 1, 8–9 (1985); Donnelly v.
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DeChristoforo, 416 U.S. 637, 647, 648 n.23 (1974). The purpose of this rule is to
prevent the jury’s misapprehension that the prosecutor possesses evidence not
presented at trial and to avoid inducing the jury to trust the government’s judgment
rather than its own. Young, 470 U.S. at 13. However, in Darden, Young, and
Donnelly, even egregious violations of this rule were held not to render the trial
fundamentally unfair because, in context, they would not have prejudiced the jury.
Darden, 477 U.S. at 181–82; Young, 470 U.S. at 16–20; Donnelly, 416 U.S. at 643–
48. This is because “the touchstone of due process analysis in cases of alleged
prosecutorial misconduct is the fairness of the trial, not the culpability of the
prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982).
The only case Mr. O’Bryant cites in which the Supreme Court has held that a
prosecutor’s comments rendered a trial fundamentally unfair involved pervasive
misbehavior presenting an intolerable risk of prejudice. In Berger v. United States,
295 U.S. 78 (1935), the prosecutor misstated the facts and the testimony, suggested
statements had been made to him personally out of court, and assumed prejudicial facts
not in evidence. See 295 U.S. at 85–89. The Court reiterated that a prosecutor’s
obligation “in a criminal prosecution is not that it shall win a case, but that justice shall be
done” and a prosecutor must “refrain from improper methods calculated to produce a
wrongful conviction,” especially given jurors’ general faith that prosecutors are behaving
with integrity. Id. at 88. This was especially true in a weak case that depended on the
testimony of an accomplice with a long criminal record. Id. at 88–89. In such
circumstances, “prejudice to the cause of the accused is so highly probable that we are
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not justified in assuming its nonexistence.” Id. at 89. The Court noted the “misconduct
was pronounced and persistent,” not “slight or confined to a single instance.” Id.Here, to determine that the OCCA’s rejection of the prosecutorial misconduct
claim was unreasonable, a jurist would need to view the prosecutor’s few isolated
comments in closing arguments as not just improper but capable of overpowering the
jury’s ability to make its own credibility determination. In the context of this trial, no
reasonable jurist would take that view. On the contrary, all reasonable jurists would
agree that the district court properly denied habeas relief on this issue.
3. Cumulative Error
Mr. O’Bryant contends that the cumulative effect of the errors at trial rendered
the trial fundamentally unfair. The OCCA disagreed, determining there could be no
accumulated error because there was no individual error. Reasonable jurists would
not quarrel with the district court’s denial of habeas relief on this ground because, if
there were errors, they were insufficient to render the trial fundamentally unfair.
Thus, Mr. O’Bryant is not entitled to a COA on this issue.
III. CONCLUSION
Mr. O’Bryant has not made a substantial showing of denial of a constitutional
right. Reasonable jurists would therefore agree that the district court properly denied
his habeas petition. Thus, we DENY Mr. O’Bryant’s application for a COA and
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DISMISS this matter.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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