Charles Everett Strong v. Department of Correction ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-10006 ELEVENTH CIRCUIT
JUNE 10, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-10020-CV-KMM
CHARLES EVERETT STRONG,
Petitioner-Appellant,
versus
DEPARTMENT OF CORRECTIONS,
Walter A. McNeil,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 10, 2009)
Before MARCUS, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Charles Everett Strong, a Florida prisoner, appeals pro se the denial of his
petition for a writ of habeas corpus. 28 U.S.C. § 2254. We granted a certificate of
appealability to resolve whether, in the light of Ferguson v. Culliver, 527 F.3d
1144 (11th Cir. 2008) (per curiam), the district court erred by relying on the
findings of the state appellate court to determine whether Strong’s due process
rights were violated by alleged prosecutorial misconduct. We vacate the denial of
Strong’s petition on this issue and remand for further proceedings.
A petitioner is entitled to a writ of habeas corpus if the state court reached a
decision that was “contrary to, or involved an unreasonable application of, clearly
established Federal law.” 28 U.S.C. § 2254(d)(1). To determine if a decision is
“contrary to” clearly established federal law, the district court must consider
whether the state court was presented with facts that are “materially
indistinguishable” from Supreme Court precedent, but reached a contrary result.
See Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001). To determine if the
state court has unreasonably applied clearly established federal law, the district
court must consider whether the state court “identifie[d] the correct legal rule from
Supreme Court case law but unreasonably applie[d] that rule to the facts of the
petitioner’s case.” Id. The findings of fact made by the state court are presumed
2
to be correct, but may rebutted by clear and convincing evidence to the contrary,
28 U.S.C. § 2254(e)(1), and may not be entitled to the same deference when the
state fails to supply “the pertinent part of the record . . . .” Id. § 2254(f). Both
grounds for relief often require the district court to examine the record of the state
proceedings. See Ferguson, 527 F.3d at 1148–49.
The district court erred when it failed to consult the trial transcript before
resolving Strong’s challenge to the closing argument made by the prosecutor. To
resolve this issue, the district court had to determine “whether the prosecutors’
comments ‘so infected the trial with unfairness as to make the resulting conviction
a denial of due process.’” Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct.
2464, 2471 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 94 S. Ct.
1868 (1974)). Although the district court examined excerpts of the comments that
Strong included in his brief to the state court on direct appeal, the district court
failed to evaluate the comments “in context based upon the defense argument that
preceded it.” Whisenhant v. Allen, 556 F.3d 1198, 1207 (11th Cir. 2009) (per
curiam) (citing Darden, 477 U.S. at 179, 106 S. Ct. at 2470); see United States v.
Young, 470 U.S. 1, 12, 105 S. Ct. 1038, 1045 (1985). Because the state omitted a
transcript of the closing arguments from its exhibits, the district court could not
have determined whether the comments of the prosecutor were a response in kind
3
or were inappropriate. If the comments were responsive, then the district court
was required to examine “the comment’s effect on the trial as a whole[,]” which
the court could not do based on the limited record before it. Whisenhant, 556 F.3d
at 1207 (citing Darden, 477 U.S. at 182, 106 S. Ct. at 2472); see Young, 470 U.S.
at 13, 105 S. Ct. at 1045. We express no opinion about whether Strong is entitled
to prevail on the merits of his petition.
We VACATE the denial of Strong’s petition for a writ of habeas corpus to
the extent that it challenges the closing comments of the prosecutor, and we
REMAND for further proceedings consistent with this opinion.
VACATED AND REMANDED.
4