John Loveman Reese v. Secretary, Florida Department of Corrections

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
March 30, 2012
JOHN LEY
No. 11-12178 CLERK
________________________
D. C. Docket No.:3:09-cv-01145-HLA-MCR
JOHN LOVEMAN REESE,
Petitioner - Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 30, 2012)
Before CARNES, PRYOR, and MARTIN, Circuit Judges.
PRYOR, Circuit Judge:
John Loveman Reese, a Florida prisoner sentenced to death for the murder
and sexual battery of Charlene Austin, appeals the denial of his petition for a writ
of habeas corpus. Reese contends that, during the sentencing phase of his trial, the
lead prosecutor made several improper arguments that persuaded the jury to
recommend a death sentence, in violation of his right to due process, and that the
decision of the Supreme Court of Florida to deny him relief was contrary to or an
unreasonable application of clearly established federal law or an unreasonable
determination of the facts. 28 U.S.C. § 2254(d). The prosecutor argued that
Reese’s crime involved “every woman’s wors[t] nightmare,” explained that there
were no mandatory minimum sentences for burglary and rape and the minimum
sentence for first-degree murder was life imprisonment with no parole for 25
years, compared Reese with a “cute little puppy” who grew up to become a
“vicious dog,” and urged the jury to show Reese the “same mercy” he had shown
Austin. The Supreme Court of Florida concluded that none of the prosecutor’s
arguments rose to the level of misconduct that would violate Reese’s
constitutional right to due process. Because no decision of the United States
Supreme Court clearly establishes otherwise, we cannot say that the Supreme
Court of Florida unreasonably applied federal law. Moreover, even under a de
novo review, none of the prosecutor’s comments were improper. We affirm.
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I. BACKGROUND
Twenty-five year old Charlene Austin had a lot to live for. She was an
attractive and athletic young woman who enjoyed a rich social life filled with
family and friends. Austin saw her best friend, Jackie Grier, almost every day and
enjoyed spending time with her boyfriend, Nick Olson, a soldier stationed at Fort
Stewart, Georgia. Grier had recently ended a relationship with an abusive
boyfriend, John Loveman Reese, and Grier too was dating a soldier stationed at
Fort Stewart. On weekends, Austin traveled from her home in Jacksonville,
Florida, to Fort Stewart, to visit Olson and often stopped en route to visit her
parents and cousins. Grier and Austin often traveled together to visit their
boyfriends.
On Tuesday, January 28, 1992, Austin went to work after having returned
from a trip to Fort Stewart. As a single woman living alone, Austin was conscious
of her security and had burglar bars on her windows. But her home would not be a
safe place when she returned.
Unbeknownst to Austin, Jackie Grier’s former boyfriend, Reese, broke into
Austin’s home, while she was at work. Reese entered Austin’s home around noon
by using a pocket knife to open the back door. Reese then hid in a closet and
waited for Austin to return from work for the evening.
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After Austin arrived home around four o’clock in the afternoon, Reese for
hours remained hidden, where he thought about the reasons Grier had ended their
relationship. While Reese waited, Austin used the bathroom, took off her work
clothes, chatted on the phone with Grier, took a nap, and watched television.
Meanwhile, convinced that Austin had something to do with the break-up of his
relationship with Grier, Reese steeled himself to attack and murder Austin.
Around ten in the evening, Reese felt confident that Austin had fallen asleep
on her sofa so he emerged from the closet. Reese attacked the defenseless Austin
and choked her, and she awoke. Austin struggled against Reese while he beat and
dragged her to the bedroom. Reese threw Austin onto her bed and continued to
choke her until she submitted to his sexual assault. After Reese raped Austin, he
strangled her until she was unconscious. Reese then placed Austin, face down, on
the floor. Spying an electrical cord near the foot of the bed, Reese grabbed it and
wrapped the cord around Austin’s neck. Reese pulled the ends of the electrical
cord for three to five minutes to slowly choke the life out of Austin. After Reese
was sure that Austin was dead, he left her naked body on the floor and went to a
nearby Winn-Dixie to buy groceries.
The next day, Grier could not reach Austin, and she began to worry. Grier
called her neighbor, Steve Watson, who agreed to accompany her to Austin’s
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house. Grier and Watson found the back door of Austin’s house unlocked and
entered the home.
Grier immediately noticed that Austin’s living room was in a state of
disarray: broken pieces of knickknacks littered the floor, couch pillows were
ruffled and appeared out of place, and the living room table had been carelessly
pushed aside. With what must have been a deep sense of dread, Grier moved
toward Austin’s bedroom.
What Grier found confirmed her worst fears. Austin laid dead on the floor,
covered with a blanket. Grier called the police, who later determined that Austin
had been strangled with an electrical extension cord that was doubled and wrapped
around her neck twice with the ends pulled through the loop.
When Grier returned to her home distraught to meet with Austin’s parents,
she was surprised to find Reese waiting for her. Reese professed his love for Grier
and asked her to stick by him because something had happened, but Grier was too
rattled from seeing Austin’s dead body to ask him what he meant.
Grier told Reese that Austin had been murdered and invited him to go
outside with her to console Austin’s parents. Reese refused. Grier noticed that
Reese had fresh scratches on his neck, forearm, and back.
5
After the police found Reese’s palm print on Austin’s bed, the police
questioned Reese, and he confessed to the burglary, rape, and murder. Reese
stated initially that he had broken into Austin’s home to talk with her about Grier,
but Reese admitted later that, before Austin had returned home, he had planned to
hurt her. Reese confessed that he had hidden before Austin returned home. Reese
also confessed that he emerged from hiding after Austin fell asleep on the sofa,
grabbed her around the neck, dragged her into the bedroom, raped her, and then
strangled her to death with an electrical cord.
The police arrested Reese, and while awaiting trial, Reese confessed to
Grier that he had raped and killed Austin. A grand jury charged Reese with first
degree murder, sexual battery with great force, and burglary with assault.
Multiple parties testified at Reese’s trial, including Grier, a medical
examiner, a forensic expert, and two detectives who stated that, when they had
asked Reese if he had decided to hurt Austin while waiting for her to come home,
Reese had replied “yes.” Reese also testified and confessed to the crimes. The
jury found Reese guilty of all three crimes, and the trial court then conducted a
separate sentencing proceeding before the jury.
In his closing argument that the murder was “especially heinous, atrocious,
or cruel,” the prosecutor stated, “I would submit to you that the way that that
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defendant chose to kill Charlene Austin, what he forced Charlene Austin to
experience is every woman’s wors[t] nightmare.” The defense counsel objected
on the ground that the prosecutor’s argument violated the “golden rule,” which
forbids counsel from asking the jury to place itself in the victim’s shoes. Although
the defense argued that the comment was improper because over half of the
members of the jury were women, the court overruled the objection because the
prosecutor did not literally ask the jurors to place themselves in the victim’s shoes.
The prosecutor continued to describe how Reese’s crime was especially heinous,
atrocious, or cruel:
Charlene Austin was awaken[ed] from that deep sleep that the
defendant had waited for her to fall into when he grabbed her from
behind, she didn’t know who was grabbing her.
Here was a stranger in her dark house grabbing her. It was too
dark for her to see, to be beaten, to be raped, and then to be slowly
strangled. That was her wors[t] nightmare come true.
And I ask you to look back[] and . . . reflect . . . on the evidence
. . . . Was that especially heinous, was that especially atrocious and
cruel?
. . . . I would submit to you that you must determine from the
evidence what was going on in Charlene Austin’s mind when the
defendant was forcing her to endure that nightmare. Ask yourself
from the evidence what she was experiencing, what was going
through her mind. . . .
....
7
[Reese] wants you to forgive what was going through Charlene
Austin’s mind when she was brutally awakened by that defendant
when he grabbed her around the neck. He wants you to forget the
horror, the horror that must have been going through her mind as she
fought for her life . . . .
. . . [H]e wants you to forget the questions that may have been
going through her mind: Who is this? What is he doing to me?
What’s going on? Why is he pulling me to my bedroom?
He wants you to forget those questions that you know must
have been going through your mind . . . .
....
. . . . That struggle with that defendant lasted, I would submit
to you, for longer than 30 to 60 seconds. . . . [That time where]
Charlene Austin . . . was fighting for her life would have seemed like
hours . . . .
....
Now at some point in time, at some point in time after she had
been beaten, after she had been raped, she had hoped that she was
going to live through this. That he would let her live. That he was
going to show mercy on her . . . .
. . . . His treatment of Charlene Austin in his violence . . . from
the facts of this murder, and that’s what I ask you to look at, the facts
going on in Charlene Austin’s mind.
The prosecutor explained to the jury that there were no minimum sentences
for rape and burglary, and that the minimum sentence for murder was life
imprisonment with the possibility of parole in 25 years:
8
[Y]ou’re going to be told that on first degree murder, the
defendant can get . . . if there is a recommendation of life . . . no
chance of parole for 25 years.
The judge is going to tell you this, that on the sexual battery
and burglary, that the defendant can face up to live [sic] in prison on
those two offenses. But you need to know this, there’s no mandatory
minimum on these lives [sic]. No minimum mandatory on the
murder, there is a minimum mandatory of 25 years, on these other
lifes [sic], there’s no minimum mandatory, and no one really knows
what that means.
The defense objected on the grounds that the comments were misleading, but the
prosecutor continued to discuss the lack of mandatory minimums after the court
overruled the objection:
There are no minimum mandatory sentences that apply to
sexual battery and burglary. The maximum sentence . . . on either one
of these is a life sentence. That is, the judge can go from one day in
jail up to a life sentence on each of these two offenses with no
minimum mandatory.
Now, I expect that the defense is going to argue to you . . . that
the judge can give the defendants three life sentences. And that’s a
possibility. . . . But only that judge can make that decision, and that’s
the judge’s decision if a recommendation of life is given.
Again, I mention to you, there’s no minimum mandatory. I
would submit to you that the facts relating to a possible prison
sentence on these two offenses—the sexual battery and burglary—is
not . . . a mitigating circumstance.
9
Then the prosecutor attempted to discredit the defense’s mitigation
evidence, especially the testimonies of two teachers that Reese had been a nice,
respectful student. The prosecutor told a story about a cute little puppy who grew
into a vicious dog. The prosecutor began to compare Reese to the dog, and the
defense counsel objected on the ground that further comments of this nature would
denigrate Reese. The judge overruled the objection, and the prosecutor continued
to compare Reese to the dog in the story: “The person that those people knew
years ago no longer exists . . . . Like that cute little puppy, this defendant, like the
cute little puppy that [be]came a rabid dog, it became a vicious dog, this
defendant, by his actions with Charlene Austin, show him to be a vicious person.”
At the end of his closing statement, the prosecutor asked the jury to consider
the aggravating and mitigating circumstances and stated that, if the jury applied
the law, it would “clearly see that the aggravating circumstances outweigh the
mitigating circumstances, and death [is] the proper recommendation.” The
prosecutor then stated, “I ask you not to be swayed by pity or sympathy for the
defendant. What pity or sympathy did he show to Charlene Austin?” The
prosecutor continued, “[I]f you are to . . . show pity or mercy or sympathy to this
defendant, I ask you to do this: I ask you to show that defendant the same
10
sympathy, the same mercy, the same pity that he showed to Charlene Austin, and
that was none.” The defense did not object.
The trial court entered a sentence of death, based on the recommendation of
the jury, for the conviction of first-degree murder; a consecutive sentence of 22
years of imprisonment for the conviction of sexual battery with great force; and a
consecutive sentence of 22 years imprisonment for the conviction of burglary with
assault. The trial court found, as an aggravated circumstance, that Reese had
committed the murder while engaged in the commission of the crimes of sexual
battery and burglary. The trial court also found that the murder involved two more
statutory aggravating factors: Reese had committed the murder in a cold,
calculated, and premeditated manner, and the murder was especially heinous,
atrocious, and cruel.
The Supreme Court of Florida affirmed Reese’s conviction. Reese v. State,
694 So. 2d 678 (Fla. 1997) (Reese I). The court ruled that Reese’s argument that
the prosecutor had improperly persuaded the jury to recommend a sentence of
death in violation of his right to due process was “without merit” because none of
the prosecutor’s comments were improper:
We have reviewed the closing argument, and find that the prosecutor
neither implored the jury to place themselves in the victim’s shoes nor
impermissibly influenced the jury by suggesting Reese could be
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paroled if the jury recommended life. Reese argues that the
prosecutor’s use of a story about a “cute little puppy” who “grew into
a vicious dog” was prejudicial. However, evidence of Reese’s past
character was presented to the jury, so it was not inappropriate for the
prosecutor to argue that past character was not a determinant of
present character. The story did not constitute name calling, and was
not prejudicial. The closing argument did not rise to the level of
misconduct. There was no error.
Reese I, 694 So. 2d at 685.
The Supreme Court of Florida affirmed the conviction, but remanded to the
trial court to reconsider its sentence of death because its explanation in support of
that sentence was deficient. Id. On remand, the trial court revised its sentencing
order to explain its reasons in support of its decision to sentence Reese to death.
Reese appealed, and the Supreme Court of Florida ordered the trial court to hold a
hearing where counsel from both sides could present written and oral arguments.
Reese v. State, 728 So. 2d 727 (Fla. 1999) (Reese II). The trial court held a
hearing to consider the written and oral arguments of counsel, considered the
mitigating evidence, and found the same three statutory aggravating factors that it
had found before, no statutory mitigating factors, and seven nonstatutory
mitigators: (1) good jail record; (2) positive character traits; (3) support of Jackie
Grier and her children; (4) possessive relationship with Jackie Grier; (5) emotional
immaturity; (6) possible use of drugs and alcohol around the time of the murder;
12
and (7) lack of a significant criminal record. The trial court imposed a sentence of
death after it determined that “the weight of the three statutory aggravating factors
is greater than the combined weight of all the mitigating factors. . . . [and] the
weight of each of the individual statutory aggravating factors would independently
outweigh the combined weight of all of the mitigating factors.”
The Supreme Court of Florida affirmed Reese’s sentence on August 17,
2000. Reese v. State, 768 So. 2d 1057 (Fla. 2000) (Reese III). On January 8,
2001, Reese petitioned for a writ of certiorari from the United States Supreme
Court, but the Court denied that petition. Reese v. Florida, 532 U.S. 910, 121 S.
Ct. 1239 (2001) (Reese IV).
Reese filed in Florida court a motion for post-conviction relief and twice
amended the motion. The trial court denied relief. Reese appealed, and the
Supreme Court of Florida affirmed the decision of the trial court to deny relief.
Reese v. State, 14 So. 3d 913 (Fla. 2009) (Reese V).
Reese then filed in the district court a petition for a writ of habeas corpus.
28 U.S.C. § 2254. Reese again alleged that, during the sentencing stage of his
trial, the prosecutor had improperly appealed to the jury to recommend a death
sentence, and had denied him due process of law as established in Greer v. Miller,
483 U.S. 756, 107 S. Ct. 3102 (1987), and Darden v. Wainwright, 477 U.S. 168,
13
106 S. Ct. 2464 (1986). The district court denied Reese’s petition, but granted
Reese a certificate of appealability with respect to that claim. The district court
denied Reese’s motion to expand the certificate of appealability.
II. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 governs Reese’s
petition and limits our review of the decision of the Supreme Court of Florida. 28
U.S.C. § 2254(d). Under section 2254(d), we may not grant habeas corpus relief
with respect to any claim that has been adjudicated on the merits in state court
proceedings unless the decision of the state court to deny relief “was contrary to
federal law then clearly established in the holdings of [the United States Supreme
Court]; or . . . involved an unreasonable application of such law; or . . . was based
on an unreasonable determination of the facts in light of the record before the state
court.” Harrington v. Richter, __ U.S. __, 131 S. Ct. 770, 785 (2011) (internal
citations and quotation marks omitted). The phrase “clearly established federal
law” in section 2254(d) “refers to the holdings, as opposed to the dicta, of [the
decisions of the United States Supreme Court] as of the time of the relevant state-
court decision.” Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 1523
(2000). “A state court acts contrary to clearly established federal law if it
confronts a set of facts that are materially indistinguishable from a decision of the
14
Supreme Court of the United States and nevertheless arrives at a result different
from its precedent.” Greene v. Upton, 644 F.3d 1145, 1154 (11th Cir. 2011)
(internal citations and quotation marks omitted). “The decision of a state court
involves an unreasonable application of clearly established federal law if the state
court identifies the correct governing legal rule but unreasonably applies it to the
facts of the particular state prisoner’s case, or when it unreasonably extends, or
unreasonably declines to extend, a legal principle from Supreme Court case law to
a new context.” Id. (internal citations and quotation marks omitted).
“[A] federal habeas court may not issue the writ simply because that court
concludes in its independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or incorrectly. Rather, that
application must also be unreasonable.” Williams, 529 U.S. at 411, 120 S. Ct. at
1522. The “pivotal question” in a federal habeas proceeding is “whether the state
court’s application of [clearly established federal law] was unreasonable.”
Harrington, __ U.S. at __, 131 S. Ct. at 785. This inquiry is different from
determining whether we would decide de novo that the petitioner’s claim had
merit. Id. To obtain habeas relief “a state prisoner must show that the state
court’s ruling on the claim being presented in federal court was so lacking in
15
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Id. at 786–87.
The Supreme Court has made clear that “a habeas court must determine
what arguments or theories supported or, [if none were stated], could have
supported[] the state court’s decision; and then it must ask whether it is possible
fairminded jurists could disagree that those arguments or theories are inconsistent
with the holding in a prior decision of [the Supreme Court].” Harrington, __ U.S.
at __, 131 S. Ct. at 786; see also Johnson v. Sec’y, Dep’t of Corr., 643 F.3d 907,
910 (11th Cir. 2011). “[E]valuating whether a rule application was unreasonable
requires considering the rule’s specificity. The more general the rule, the more
leeway courts have in reaching outcomes in case-by-case determinations.”
Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S. Ct. 2140, 2149 (2004). “[I]t is
not an unreasonable application of clearly established Federal law for a state court
to decline to apply a specific legal rule that has not been squarely established by
[the United States Supreme Court].” Knowles v. Mirzayance, 556 U.S. 111, 122,
129 S. Ct. 1411, 1419 (2009) (internal quotation marks omitted). The standard
established in section 2254(d) is “difficult to meet because the purpose of AEDPA
is to ensure that federal habeas relief functions as a guard against extreme
malfunctions in the state criminal justice systems, and not as a means of error
16
correction.” Greene v. Fisher, __U.S. __, 132 S. Ct. 38, 43 (2011) (citations and
internal quotation marks omitted).
“The question whether a state court errs in determining the facts is a
different question from whether it errs in applying the law.” Rice v. Collins, 546
U.S. 333, 342, 126 S. Ct. 969, 976 (2006). But our standard of review is again
deferential. In a habeas proceeding, “[o]ur review of findings of fact by the state
court is even more deferential than under a clearly erroneous standard of review.”
Stephens v. Hall, 407 F.3d 1195, 1201 (11th Cir. 2005).
III. DISCUSSION
Reese contends that the prosecutor engaged in misconduct when he told the
jury that Austin’s experience was “every woman’s wors[t] nightmare,” suggested
that Reese would be released on parole absent a sentence of death, compared
Reese with a “cute little puppy” who grew up to become a “vicious dog,” and
urged the jury to show Reese “the same sympathy, the same pity that he showed to
Charlene Austin, and that was none.” Reese argues that, when measured against
the decisions of the Supreme Court in Donnelly v. DeChristoforo, 416 U.S. 637,
94 S. Ct. 1868 (1974), United States v. Young, 470 U.S. 1, 105 S. Ct. 1038 (1985),
Darden v. Wainwright, 477 U.S. 168, 106 S. Ct. 2464 (1986), and Greer v. Miller,
483 U.S. 756, 107 S. Ct. 3102 (1987), the Supreme Court of Florida unreasonably
17
concluded that the prosecutor’s comments did not “so infect[] the trial with
unfairness as to make the resulting conviction a denial of due process,” Darden,
477 U.S. at 181, 106 S. Ct. at 2471 (quoting Donnelly, 416 U.S. at 643, 94 S. Ct.
at 1871). We disagree.
Reese’s argument fails for two separate reasons. First, the Supreme Court
of Florida did not unreasonably apply any clearly established federal rule when it
rejected Reese’s claim of prosecutorial misconduct. Second, even under de novo
review, Reese’s claim fails because no misconduct occurred as a matter of federal
law.
A. The Supreme Court of Florida Did Not Unreasonably Apply Federal Law.
Our inquiry is limited to whether the state court unreasonably applied a
holding of the Supreme Court, Williams, 529 U.S. at 412, 120 S. Ct. at 1523, and
the Supreme Court has never held that a prosecutor’s closing arguments were so
unfair as to violate the right of a defendant to due process. Reese is not entitled to
habeas relief because “it is not an unreasonable application of clearly established
Federal law for a state court to decline to apply a specific legal rule that has not
been squarely established by [the Supreme Court].” Knowles, 556 U.S. at 122,
129 S. Ct. at 1419 (internal quotation marks omitted). The Supreme Court has
reiterated, time and again, that, in the absence of a clear answer—that is, a holding
18
by the Supreme Court—about an issue of federal law, we cannot say that a
decision of a state court about that unsettled issue was an unreasonable application
of clearly established federal law. Wright v. Van Patten, 552 U.S. 120, 126, 128
S. Ct. 743, 747 (2008) (“Because our cases give no clear answer to the question
presented, let alone one in Van Patten’s favor, it cannot be said that the state court
unreasonably applied clearly established federal law.”) (internal quotation marks
omitted); Schriro v. Landrigan, 550 U.S. 465, 478, 127 S. Ct. 1933, 1942 (2007)
(The Arizona Supreme Court did not unreasonably apply federal law because “we
have never addressed a situation like this.”); Carey v. Musladin, 549 U.S. 70, 77,
127 S. Ct. 649, 654 (2006) (“Given the lack of holdings from this Court regarding
the potentially prejudicial effect of spectators’ courtroom conduct of the kind
involved here,” the denial of relief by the California Court of Appeal “was not
contrary to or an unreasonable application of clearly established federal law.”).
None of the decisions of the Supreme Court cited by Reese suggest that the
Supreme Court of Florida unreasonably applied federal law. In fact, in every
decision, the Supreme Court held that the prosecutor’s comments had not violated
the defendant’s federal rights. Reese has not established “that the state court’s
ruling on [his due process] claim . . . was so lacking in justification that there was
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an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Harrington, 131 S. Ct. at 786–87.
In Darden, every court that reviewed the prosecutor’s closing argument—
including the Supreme Court of Florida, this Court, and the Supreme
Court—condemned it, but “no court . . . held that the argument rendered the trial
unfair.” 477 U.S. at 179, 106 S. Ct. at 2471. The prosecutor’s argument included
an invitation to blame state prison officials for the defendant’s capital murder
because he “was on a weekend furlough from a prison sentence when the crime
occurred,” statements that “implied that the death penalty would be the only
guarantee against a future similar act,” references to the defendant as an “animal”
who should be on the end of “a leash,” and statements that the prosecutor wished
someone had “blown away” the defendant with a shotgun. Id. at 180–81 & nn. 9,
10, 11, & 12, 106 S. Ct. at 2471 & nn. 9, 10, 11, & 12. The Supreme Court
nevertheless held that the argument “did not deprive the petitioner of a fair trial.”
Id. at 181, 106 S. Ct. at 2471. The Court explained that, when the prosecutor’s
improper closing argument was considered in the context of the whole trial, the
petitioner’s trial was fair:
The prosecutors’ argument did not manipulate or misstate the
evidence, nor did it implicate other specific rights of the accused such
as the right to counsel or the right to remain silent. Much of the
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objectionable content was invited by or was responsive to the opening
summation of the defense. . . . The trial court instructed the jurors
several times that their decision was to be made on the basis of the
evidence alone, and that the arguments of counsel were not evidence.
The weight of the evidence against petitioner was heavy; the
“overwhelming eyewitness and circumstantial evidence to support a
finding of guilt on all charges,” reduced the likelihood that the jury’s
decision was influenced by argument. . . . Defense counsel were able
to use the opportunity for rebuttal very effectively, turning much of
the prosecutors’ closing argument against them by placing many of
the prosecutors’ comments and actions in a light that was more likely
to engender strong disapproval than result in inflamed passions
against petitioner. For these reasons, we agree with the District Court
below that “Darden’s trial was not perfect—few are—but neither was
it fundamentally unfair.”
Id. at 181–83, 106 S. Ct. 2471–72 (citations omitted).
Darden offers Reese no assistance in establishing that the Supreme Court of
Florida unreasonably applied clearly established federal law when it held that the
prosecutor’s closing argument, which no court has condemned, did not violate
Reese’s right to due process. Only a holding of the Supreme Court can clearly
establish federal law, and the Darden Court held that the prosecutor’s argument
did not deprive the petitioner of a fair trial. Under Darden, Reese has not
established that the ruling of the state court on his due process claim “was so
lacking in justification that there was an error well understood and comprehended
in existing law beyond any possibility for fairminded disagreement.” Harrington,
131 S. Ct. at 786–87.
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Young involved “advocacy . . . [that] has no place in the administration of
justice and should neither be permitted nor rewarded,” 470 U.S. at 9, 105 S. Ct. at
1043, but the Supreme Court held, on direct appeal, that the prosecutor’s improper
closing arguments did not rise “to the level of ‘plain error’ when he responded to
defense counsel,” id. at 14, 105 S. Ct. at 1046. In rebuttal, the prosecutor
“responded to defense counsel’s claim that the Government did not believe in its
own case,” by offering personal expressions of belief in the defendant’s guilt. Id.
at 5, 105 S. Ct. at 1041. “Viewed in context, the prosecutor’s statements, although
inappropriate and amounting to error, were not such as to undermine the
fundamental fairness of the trial and contribute to a miscarriage of justice.” Id. at
16, 105 S. Ct. at 1047.
Young established no rule of federal law that the Supreme Court of Florida
unreasonably applied. Only a holding of the Supreme Court can clearly establish
federal law, and the Young Court held that the prosecutor’s statements did not
undermine the fundamental fairness of the trial or contribute to a miscarriage of
justice. Under Young, Reese has not established that the ruling of the state court
on his due process claim “was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington, 131 S. Ct. at 786–87.
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Donnelly involved a prosecutor’s closing argument that the Supreme
Judicial Court of Massachusetts determined was improper, but that the United
States Supreme Court nevertheless held did not deprive the petitioner of a fair
trial. In response to defense counsel’s expression of hope that the jury would find
the defendant not guilty, the prosecutor argued that he thought the defense
“frankly . . . hope[d] that [the jury would] find [the defendant] guilty of something
a little less than first-degree murder.” Donnelly, 416 U.S. at 640, 94 S. Ct. at
1870. The trial court sustained an objection to the argument, and the Supreme
Court described the argument as “but one moment in an extended trial [that] was
followed by specific disapproving instructions.” Id. at 645, 94 S. Ct. at 1872.
Donnelly offers Reese no help in establishing that the Supreme Court of
Florida unreasonably applied clearly established federal law. Only a holding of
the Supreme Court can clearly establish federal law, and the Donnelly Court held
that the prosecutor’s closing argument did not deprive the petitioner of a fair trial.
Under Donnelly, Reese has not established that the ruling of the state court on his
due process claim “was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington, 131 S. Ct. at 786–87.
23
Greer involved an improper, but unanswered, question about the
defendant’s postarrest silence, not an improper closing argument, and the Supreme
Court held that “[t]he sequence of events in this case—a single question, an
immediate objection, and two curative instructions—clearly indicates that the
prosecutor’s improper question did not violate [the defendant’s] due process
rights.” 483 U.S. at 766, 107 S. Ct. at 3109. The Court explained that, although
the prosecutor attempted to violate the defendant’s right against self-incrimnation,
under the Fifth and Fourteenth Amendments, as interpreted in Doyle v. Ohio, 426
U.S. 610, 96 S. Ct. 2240 (1976), the prosecutor failed, and “no Doyle violation
occurred.” Greer, 483 U.S. at 765, 107 S. Ct. at 3108. “The fact of [the
defendant’s] postarrest silence was not submitted to the jury as evidence from
which it was allowed to draw any permissible inference.” Id. at 764–65, 107 S.
Ct. at 3108.
Greer established no rule that the Supreme Court of Florida unreasonably
applied in Reese’s appeal. Only a holding of the Supreme Court can clearly
establish federal law, and the Greer Court held that the prosecutor’s question did
not violate the defendant’s due process rights. Under Greer, Reese has not
established that the ruling of the state court on his due process claim “was so
lacking in justification that there was an error well understood and comprehended
24
in existing law beyond any possibility for fairminded disagreement.” Harrington,
131 S. Ct. at 786–87.
Reese also argues that several decisions of the Supreme Court of Florida, in
other criminal appeals, establish that the prosecutor’s arguments in Reese’s trial
were improper under Florida law, but those decisions are irrelevant to our analysis.
“Necessary to [Reese’s] success . . . is the proposition that the Florida Supreme
Court erred in construing the laws of Florida. In fact, [Reese’s] claim involves a
pure question of state law. Questions of pure state law do not raise issues of
constitutional dimension for federal habeas corpus purposes.” Carrizales v.
Wainwright, 699 F.2d 1053, 1054–55 (11th Cir. 1983). A precedent of a state
court about an issue of state law can never establish an entitlement to a federal
writ of habeas corpus. Moreover, even if a decision of a state court interprets
federal law, Reese cannot rely on that decision because “under AEDPA, our
review is limited to examining whether the highest state court’s resolution of a
petitioner’s claim is contrary to, or an unreasonable application of, clearly
established law, as set forth by the United States Supreme Court.” Shere v. Sec’y,
Fla. Dep’t of Corr., 537 F.3d 1304, 1310 (11th Cir. 2008).
Reese also argues that the Supreme Court of Florida unreasonably
determined the facts in the light of the evidence before it, but this argument fails
25
too. Reese never identifies what facts the state court incorrectly construed or
overlooked.
B. Under De Novo Review, Reese’s Claim of Prosecutorial Misconduct Fails.
“Even if [Reese’s claim] were eligible for de novo review, it would still
fail.” Knowles, 556 U.S. at 123, 129 S. Ct. at 1420. The Supreme Court has made
clear that we are entitled to affirm the denial of habeas relief in this manner: “a
habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim
is rejected on de novo review.” Berghuis v. Thompkins, ___ U.S. ___, ___, 130 S.
Ct. 2250, 2265 (2010); see, e.g., Knowles, 566 U.S. at 114, 129 S. Ct. at 1415
(holding that petitioner failed to establish that his counsel’s performance was
ineffective under both section 2254(d) and de novo review). Like the Supreme
Court in Knowles, we have employed this approach even when it was clear that
the deference afforded by section 2254(d) applied. See, e.g., Allen v. Sec’y, Fla.
Dep’t of Corr., 611 F.3d 740, 753 (11th Cir. 2010) (“Alternatively, even if no
deference were due the state collateral trial court’s decision on the performance
element, we would conclude on de novo review that [petitioner] had failed to
establish it.”).
26
Darden explains that a defendant must establish that the “prosecutors’
comments so infected the trial with unfairness as to make the resulting conviction
a denial of due process.” 477 U.S. at 181, 106 S. Ct. at 2471 (citations and
internal quotation marks omitted). To determine whether a prosecutor’s
statements during the sentencing phase are “sufficiently egregious to result in the
denial of due process,” we consider the comments in the context of the entire trial
and examine “(1) whether the remarks were isolated, ambiguous, or unintentional;
(2) whether there was a contemporaneous objection by defense counsel; (3) the
trial court’s instructions; and (4) the weight of aggravating and mitigating factors.”
Land v. Allen, 573 F.3d 1211, 1219–20 (11th Cir. 2009) (relying on Romine v.
Head, 253 F.3d 1349, 1369–70 (11th Cir. 2001)). Reese cannot satisfy that
standard.
The fundamental problem with Reese’s claim of prosecutorial misconduct is
that none of the prosecutor’s comments in closing argument were improper. “A
permissible argument, no matter how ‘prejudicial’ or ‘persuasive,’ can never be
unconstitutional.” Brooks v. Kemp, 762 F.2d 1383, 1403 (11th Cir. 1985) (en
banc), vacated on other grounds by 478 U.S. 1016, 106 S. Ct. 3325 (1986),
reinstated by 809 F.2d 700 (11th Cir. 1987) (en banc); Romine, 253 F.3d at 1366
(“[N]o matter how outcome-determinative it is a proper argument cannot render
27
the proceedings fundamentally unfair and therefore cannot be the basis for a
constitutional violation.”); Spivey v. Head, 207 F.3d 1263, 1276 (11th Cir. 2000)
(“Proper arguments, regardless of their impact on the outcome of the case, do not
render a trial unfair.”). “[P]rosecutorial arguments will not warrant habeas corpus
relief unless they . . . have encouraged the jury to take into account matters that are
not legitimate sentencing considerations.” Johnson v. Wainwright, 778 F.2d 623,
630 (11th Cir. 1985).
When we consider whether the prosecutor urged the jury to evaluate
legitimate considerations, we must recall that capital sentencing is inevitably an
emotional exercise that demands the consideration of morality. Capital sentencing
is not a detached and clinical exercise in pure reason:
[C]apital sentencing is still an emotional issue. Necessarily it will
always be so. “Reason” alone cannot adequately explain a jury’s
decision to grant mercy to a person convicted of a serious murder
because of that person’s youth or troubling personal problems. Nor
can reason alone fully explain the reaction of a juror upon hearing the
facts of a particular crime described in their specifically tragic detail.
Empathy for a defendant’s individual circumstance or revulsion at the
moral affront of his crime, reactions accepted as bases for capital
sentencing decisions, are not susceptible to full explanation without
recourse to human emotion. Thus, the fact that an argument by a
defense counsel or prosecutor has emotional overtones does not
independently indict it as improper. The propriety of argument rests
primarily in the relation of its content to issues relevant to the
sentencing jury’s concern.
28
Brooks, 762 F.2d at 1404–05 (citation omitted).
Reese argues that the prosecutor’s comments about Austin experiencing
“every woman’s wors[t] nightmare” were improper “golden rule” arguments.
Reese argues that the prosecutor invited the jurors to place themselves in the
position of Austin because the prosecutor told the jurors that what “Reese forced
Charlene Austin to experience is every woman’s nightmare”; asked the jurors to
“determine from the evidence what was going on in Charlene Austin’s mind”;
suggested that a series of questions raced through Austin’s mind, such as “Who is
this? What is he doing to me? What’s going on? Why is he pulling me to my
bedroom?”; stated that Reese “wants you to forget those questions that you know
must have been going through your mind”; and asked the jury to ask themselves
“what did Charlene Austin feel after—feel after that rape?” Reese’s contention
fails.
We agree with the Supreme Court of Florida that the prosecutor did not
impermissibly invite “the jury to place themselves in the victim’s shoes.” Reese I,
694 So. 2d at 685. The prosecutor instead legitimately urged the jury to consider
the victim’s experience to determine whether the offense was “especially heinous,
atrocious, or cruel” under Florida law. To prove that statutory aggravating factor,
the State had to prove, beyond a reasonable doubt, that Reese’s murder of Austin
29
was “extremely wicked or shockingly evil”; “outrageously wicked and vile”; or
effected by means “designed to inflict a high degree of pain with utter indifference
to, or even enjoyment of, the suffering of others.” State v. Dixon, 283 So. 2d 1, 9
(Fla. 1973). The victim’s fear, pain, and emotional strain before her death are all
relevant to the heinous nature of a murder. “The State has a legitimate interest in
counteracting the mitigating evidence which the defendant is entitled to put in, by
reminding the sentencer that just as the murderer should be considered as an
individual, so too the victim is an individual whose death represents a unique loss
to society and in particular to his family.” Payne v. Tennessee, 501 U.S. 808, 825,
111 S. Ct. 2597, 2608 (1991) (internal quotation marks omitted).
We have ruled that similar comments are permissible. In Kennedy v.
Dugger, 933 F.2d 905, 913, 916 (11th Cir. 1991), for example, we denied habeas
relief on de novo review where the prosecutor stated, “Can you imagine, in your
own living room not bothering a soul on a Saturday afternoon? [The defendant]
stopped up at his relative’s house and had a beer and he walked back down to your
house, and a total stranger, because you got in his way, destroys you.” In Davis v.
Kemp, 829 F.2d 1522, 1528–29 (11th Cir. 1987), we upheld the following
comment as a permissible argument about future dangerousness:
30
The death penalty is called for. Ask yourselves this question, how
would you feel living in this community if you looked out of your
window one night and saw [the defendant] walking down the street
coming up toward your house. If that wouldn’t put a feeling of cold
terror in your heart, what would?
In Cargill v. Turpin, 120 F.3d 1366, 1381 (11th Cir. 1997), we ruled that a
prosecutor’s argument at sentencing about “a bunch of little boys” at Christmas
thinking about their dead parents was permissible because “the prosecutor was
attempting to convey the gravity of the crime and its consequences—the murder of
the [boys’ parents] left four young boys without parents—to convince the jury that
life imprisonment, i.e., allowing [the defendant] to continue to live, would be too
lenient a sentence.” And in Brooks, 762 F.2d at 1396, 1416, we denied habeas
relief where the prosecutor asked the jurors, “Whose daughter will it be next
time?”
Reese also argues that the prosecutor’s comments about sentencing law
were improper, but we disagree. The prosecutor accurately stated that, under
Florida law, Reese would have been eligible for parole, if the jury had
recommended a life sentence, because capital defendants then faced a minimum
sentence of twenty-five years. See State v. Coban, 520 So. 2d 40, 41(Fla. 1988).
A correct statement of the law is a permissible argument. Cf. Spivey, 207 F.3d at
1277.
31
Reese contends that the prosecutor impermissibly denigrated Reese by
comparing him with a “vicious dog” and referring to him as “violent,” “pitiless,”
and “conscienceless.” The concurrence agrees that the prosecutor’s use of the
word “animal” was improper as a matter of federal law. But the prosecutor’s
comments were permissible because, unlike the prosecutor in Darden, the
prosecutor at Reese’s trial did not call Reese a “vicious animal.” Instead, the
prosecutor compared Reese to a “cute little puppy” who “grew into a vicious dog”
to argue that past character was not a determinant of present character. Because
“evidence of Reese’s past character was presented to the jury,” Reese I, 694 So. 2d
at 685, the prosecutor was entitled to remind the jury that the defense witnesses
who testified that Reese had been a well-behaved child did not know Reese as an
adult, and the prosecutor was entitled to urge the jury to consider Reese’s heinous
offense.
Reese argues that the prosecutor’s “same mercy” argument was improper,
but the prosecutor did not suggest that mercy was an inappropriate factor to
consider. Cf. Wilson v. Kemp, 777 F.2d 621, 626 (11th Cir. 1985). The
prosecutor’s comment presupposed that the jury would consider showing Reese
mercy, but the prosecutor legitimately argued that Reese did not deserve mercy.
Reese’s counsel also failed to object to the “same mercy” comment.
32
IV. CONCLUSION
The denial of Reese’s petition for a writ of habeas corpus is AFFIRMED.
33
MARTIN, Circuit Judge, concurring in the result only:
While I agree with the majority that this is not a case for habeas relief, I do
not agree with all of the reasons given by the majority to affirm the District
Court’s denial of Mr. Reese’s habeas petition.
To begin, after concluding that the Florida Supreme Court’s decision was
not an unreasonable application of federal law under 28 U.S.C. § 2254(d), I think
it unnecessary to also conduct a de novo review of the prosecutor’s comments in
this case. This is not a case where it is “unclear whether AEDPA deference
applies.” See Berghuis v. Thompkins, ___ U.S. ___, ___, 130 S. Ct. 2250, 2265
(2010) (stating courts may “deny writs of habeas corpus under § 2254 by engaging
in de novo review when it is unclear whether AEDPA deference applies”). Thus,
a de novo review is not called for by AEDPA, and it is not necessary for us to
affirm the denial of Mr. Reese’s habeas petition. Indeed, the Supreme Court has
repudiated the notion that AEDPA’s “unreasonableness question” is the same as
an appellate court’s “confidence in the result it would reach under de novo
review.” Harrington v. Richter, 562 U.S. ___, ___, 131 S. Ct. 770, 786 (2011); cf.
Brooks v. Kemp, 762 F.2d 1383, 1403 n.31 (11th Cir.1985) (en banc) (“A court
need not determine whether specific [prosecutorial] arguments are proper or
improper if, taken as a whole, they would not require relief.”) (citation omitted),
34
vacated on other grounds, 478 U.S. 1016, 106 S. Ct. 3325 (1986), reinstated on
remand, 809 F.2d 700 (1987) (en banc).
Also, while I agree that the state court’s determination cannot be viewed as
“objectively unreasonable,” Renico v. Lett, 559 U.S. ___, ___, 130 S. Ct. 1855,
1862 (2010) (quoting Williams v. Taylor, 529 U.S. 362, 409, 120 S. Ct. 1495,
1521 (2000)), I assume that the majority’s opinion does not question the premise
that the Supreme Court has clearly established federal law with respect to habeas
claims asserting that a prosecutor’s comments during penalty phase closing
arguments denied the petitioner due process. Where a state court has adjudicated
such a claim on the merits, habeas petitioners must demonstrate that the state
court’s decision is contrary to, or involves an unreasonable application of, the
Supreme Court’s clearly established standard — that “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, 643, 94 S. Ct. 1868,
1871 (1974)). There can be little doubt that a holding of the Supreme Court
squarely established this specific due process standard within the meaning of
AEDPA. See generally Knowles v. Mirzayance, 556 U.S. 111, 122, 129 S. Ct.
1411, 1419 (2009).
35
It is true that the Supreme Court has never granted habeas relief based upon
a prosecutor’s closing argument. But that fact alone does not mean the Supreme
Court has not clearly established a standard by which such claims should be
evaluated. Said another way, the Supreme Court can clearly establish federal law
sufficient to support relief under AEDPA by establishing standards even in cases
where the habeas petition is denied under that standard.
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), is a good
example. Strickland established the now often cited standard for evaluating
ineffective assistance of counsel claims — deficient performance and prejudice.
Id. at 687, 104 S. Ct. at 2064. Yet, in Strickland, the Supreme Court affirmed the
denial of habeas relief to the petitioner, David Washington, because he failed to
make the required showing of either deficient performance or sufficient prejudice
to prove his ineffective assistance of counsel claim. Id. at 700–01, 104 S. Ct. at
2071. We know that the Supreme Court has granted habeas relief under AEDPA
and based upon Strickland’s standard.1
1
See, e.g., Lafler v. Cooper, ___ U.S. ___, ___, No. 10–209, 2012 WL 932019, at *11–12
(Mar. 21, 2012); Porter v. McCollum, ___ U.S. ___, ___, 130 S. Ct. 447, 455–56 (2009) (granting
habeas relief under AEDPA based on Strickland); Rompilla v. Beard, 545 U.S. 374, 380–81, 393,
125 S. Ct. 2456, 2462, 2469 (2005) (same); Wiggins v. Smith, 539 U.S. 510, 520, 534–38, 123 S.
Ct. 2527, 2534, 2542–44 (2003) (same); Williams, 529 U.S. at 367, 120 S. Ct. at 1499 (same). We
have followed the Supreme Court’s lead. See Cooper v. Sec’y, Dep’t of Corr., 646 F.3d 1328, 1356
(11th Cir. 2011); Johnson v. Sec’y, DOC, 643 F.3d 907, 910–11 (11th Cir. 2011); Ferrell v. Hall,
640 F.3d 1199, 1203 (11th Cir. 2011).
36
It seems equally true that the Supreme Court has clearly announced a
constitutional standard by which a prosecutor’s arguments must be measured. It
bears emphasis, the clearly established standard is “whether the prosecutors’
comments ‘so infected the trial with unfairness as to make the resulting conviction
a denial of due process.’” Darden, 477 U.S. at 181, 106 S. Ct. at 2471 (quoting
Donnelly, 416 U.S. at 643, 94 S. Ct. at 1871)); see also Greene v. Upton, 644 F.3d
1145, 1157 (11th Cir. 2011) (applying the Darden standard). I therefore
understand the majority’s opinion to conclude that Mr. Reese has failed to satisfy
this rigorous standard, not that Donnelly and Darden can never provide the basis
for habeas relief merely because the defendants in those cases got no habeas relief.
See also Hammond v. Hall, 586 F.3d 1289, 1322 (11th Cir. 2009) (Carnes, J.)
(“The Supreme Court has held that a death sentence can be rendered
unconstitutional if the prosecutor’s comments ‘so infected the trial with unfairness
as to make the resulting conviction a denial of due process.’” (quoting Darden,
477 U.S. at 181, 106 S. Ct. at 2471, and citing Payne v. Tennessee, 501 U.S. 808,
825, 111 S. Ct. 2608 (1991), for the proposition that “the same due process
standard of fundamental fairness exists at the sentencing phase of a capital trial”).
Our Circuit precedent recognizes that the Supreme Court may establish
constitutional due process standards even in cases where the Court finds no
37
constitutional error. For example, in United States v. Bissell, 866 F.2d 1343 (11th
Cir. 1989), this Court applied the Supreme Court’s analytical framework from
Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972) (identifying four
factors to consider for Sixth Amendment speedy trial claim), to determine when a
defendant is entitled to a post-indictment, pretrial forfeiture hearing as a matter of
Fifth Amendment due process. Bissell, 866 F.2d at 1352–53. In doing so, this
Court relied upon the Supreme Court’s decision in United States v. Eight
Thousand Eight Hundred and Fifty Dollars ($8,850) in United States Currency,
461 U.S. 555, 103 S. Ct. 2005 (1983), which applied Barker’s four factors to reject
the argument that an eighteen month delay between seizure of assets and a civil
forfeiture hearing violated Fifth Amendment Due Process, id. at 574, 103 S. Ct. at
2012. See Bissell, 866 F.2d at 1352–53. Bissell, like $8,850, ultimately rejected
the due process claim after applying Barker’s test. Id. at 1354. After Bissell, we
made clear in United States v. Kaley, 579 F.3d 1246 (11th Cir. 2009), that the
Barker test was part of the holding of Bissell:
Bissell’s determination that the Barker factors should be used to
evaluate when a defendant is entitled to a post-indictment, pretrial
hearing under due process of law is holding, not dicta. As our cases
frequently have observed, dicta is defined as those portions of an
opinion that are “not necessary to deciding the case then before us.”
Conversely, the holding of a case is, as the Supreme Court observed,
comprised both of the result of the case and “those portions of the
38
opinion necessary to that result by which we are bound.” Bissell’s
conclusion that there was no violation of the defendants’ Fifth
Amendment due process rights was necessary to its ultimate decision.
In fact, Bissell’s adoption and use of the Barker test forms a critical part
of the case’s holding. Our conclusion that the defendants’ due process
rights were not violated was driven by, and cannot be understood apart
from our application of the Barker test to the facts of the case. While it
is true that the court could have decided the case on other grounds, such
as plain error, the panel resolved the defendant[s’] due process claim by
explicating and applying the Barker v. Wingo analysis.
Kaley, 579 F.3d at 1253 n.10 (citations omitted). Similarly, while Darden
concluded that the petitioner’s due process rights were not violated by the
prosecutor’s comments, the result in Darden expressly relied upon the Supreme
Court’s application of Donnelly’s due process test to the facts in Darden. Again,
that is, “whether the prosecutors’ comments ‘so infected the trial with unfairness
as to make the resulting conviction a denial of due process.’” Darden, 477 U.S. at
181, 106 S. Ct. at 2471 (quoting Donnelly, 416 U.S. at 643, 94 S. Ct. at 1871)).
Thus, the Donnelly and Darden test is part of the holding in those cases because it
was “necessary to [the Court’s] ultimate decision,” formed “a critical part of the
case[’s] holding,” and “cannot be understood apart” from the Court’s ultimate
resolution of those cases. Kaley, 579 F.3d at 1253 n.10 (citations omitted). We
must therefore recognize it as clearly established federal law.
39
It is also worth noting that to the extent Darden and Donnelly establish only
a general standard, that does not immunize a state court’s decision from scrutiny
under AEDPA. Of course, the “more general the rule, the more leeway courts
have in reaching outcomes in case-by-case determinations.” Majority Op. at 17
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S. Ct. 2140, 2149
(2004)). For example, Strickland is a general standard. Premo v. Moore, ___U.S.
___, ___, 131 S. Ct. 733, 740 (2011) (“The Strickland standard is a general one, so
the range of reasonable applications is substantial.”) (quotation marks omitted);
accord Knowles, 556 U.S. at 123, 129 S. Ct. at 1420. Yet, as far as I am aware,
the first time the Supreme Court found a violation of Strickland’s general standard
occurring at a capital penalty phase was under AEDPA. See Williams, 529 U.S. at
396–97, 120 S. Ct. at 1514–15 (concluding state court’s application of Strickland
to petitioner’s penalty phase claim was both contrary to and an unreasonable
application of clearly established federal law). Since Williams, the Supreme Court
has repeatedly found state court decisions applying Strickland’s general standard
unreasonable under AEDPA. See Lafler, 2012 WL 932019, at *11–12; Porter,
130 S. Ct. at 455–56; Rompilla, 545 U.S. at 380–81, 393, 125 S. Ct. at 2462, 2469;
Wiggins, 539 U.S. at 520, 537–38, 123 S. Ct. at 2534, 2542–44. And the Supreme
Court recently reversed a Georgia Supreme Court opinion on direct review for
40
failing to properly apply Strickland’s prejudice analysis. See Sears v. Upton, ___
U.S. ___, ___, 130 S. Ct. 3259, 3261 (2010). These cases show that a state
court’s decision can be contrary to or an unreasonable application of even a
general constitutional standard, such as that stated in Darden, in an appropriate
case.
I agree that Mr. Reese’s case is not such a case, but my conclusion is based
upon the totality of the record and looking to Donnelly and Darden as having
clearly established the relevant standard.
Finally, I disagree with the majority’s holding that none of the prosecutor’s
comments in this case were improper. As an example, in Darden itself, the
Supreme Court recognized that the prosecutor’s use of the word “animal” to
describe the defendant “undoubtedly were improper,” even though the
prosecutor’s comments were incorporating the defense’s use of the word “animal.”
477 U.S. at 180, 106 S. Ct. at 2471. The prosecutor here referred to Mr. Reese as
a “vicious dog” and a “rabid dog.” Thus, while I agree with the majority’s
ultimate conclusion that it was not objectively unreasonable for the Florida
Supreme Court to conclude the prosecutor’s comments did not “so infect[] the trial
with unfairness as to make the resulting [death sentence] a denial of due process,”
41
id. at 181, 106 S. Ct. at 2471 (quotation marks omitted), I cannot agree that none
of the prosecutor’s comments here were improper as a matter of federal law.
42