Derrick Grant v. Darrel Vannoy, Warden

Case: 19-30289 Document: 00515584414 Page: 1 Date Filed: 09/30/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
September 30, 2020
No. 19-30289 Lyle W. Cayce
Clerk
Derrick Dewayne Grant,
Petitioner—Appellant,
versus
Darrel Vannoy, Warden, Louisiana State Penitentiary,
Respondent—Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:16-CV-77
Before Owen, Chief Judge, and Davis and Southwick, Circuit Judges.
Per Curiam:*
Derrick Grant was convicted in state court of attempted murder. In
this habeas suit, he argues that the prosecutor violated his right to remain
silent by suggesting at trial that his silence at the time of his arrest was
evidence of guilt. Those facts also lead to a claim of ineffective assistance of
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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trial counsel based on his counsel’s the failure to object to the prosecutor’s
efforts. The district court denied relief. We AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
Derrick Grant was convicted of attempted second-degree murder in
Louisiana state court. State v. Grant, 105 So. 3d 81, 83 (La. Ct. App. 2d Cir.
2012). Our factual discussion is drawn largely from the Louisiana Court of
Appeal’s opinion on direct review of Grant’s conviction. In October 2003,
three men were playing dominoes on the front porch of a house in
Shreveport, Louisiana. An SUV stopped in front of that house. One person
remained in the SUV while two others exited the vehicle and began firing
assault rifles at the house. One of the men on the porch was injured by the
gunfire.
Across the street, an off-duty fireman heard the gunfire and observed
two men outside a tan SUV shooting at a house. When the SUV sped away,
the fireman called the police and followed the vehicle until officers caught up.
Officer John Stratton was the first to reach the SUV and took over the chase.
One or more of those in the SUV fired at Stratton’s car while they sped down
an interstate highway. Officer Stratton never lost sight of the SUV, which
eventually stopped in a ditch. The three men in the vehicle then fled through
a thicket of bamboo and a razor-wire fence, guns in hand.
Other officers arrived on the scene. A K-9 unit tracked the scent to a
home where an assault rifle was discovered but no suspects. Then, the
tracking led officers to a second house where three men – Grant, William
Hall, and Ira Ross – were found. Officers saw that Grant had a fresh cut on
his face. Grant gave permission for officers to make a protective sweep of the
home. Another assault rifle was found under this house.
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During the sweep, officers also discovered muddy clothes in the
laundry and tennis shoes similarly covered in mud. At this point, officers
arrested the three men and provided warnings of their constitutional rights,
including the right to remain silent. The investigation revealed that the SUV
involved in the shooting had been rented under Grant’s girlfriend’s name.
Hall and Ross were tried and convicted of attempted second-degree
murder. After those convictions, Grant’s jury trial was conducted in June
2006. He testified that he was not the third man involved in the shooting.
Instead, the by-then-deceased Jackie Sanders committed the crime with Hall
and Ross. Grant’s testimony on direct examination was that Hall and Ross
came to the house where Grant lived with his girlfriend and immediately
asked where Sanders was. Grant testified that he allowed the two men to
place their muddy clothes in the laundry and provided them with clean ones.
Grant also stated that when the officers arrived at the home, he was trying to
be helpful by allowing them to conduct the protective sweep.
On cross-examination, the prosecutor attempted to cast doubt on
Grant’s story with the following line of questions:
Q. And with respect to this Jackie Sanders stuff going on, all
that, the first time we’re hearing about it is here at your trial,
right?
A. Yes, sir.
Q. Okay. And I believe you said that, “How can you not tell
the police” — you know, talking about when they’re coming
in. “How can you not tell them what’s going on” in response
to one of your questions to [defense counsel]; do you recall
saying that?
A. Yes, sir.
Q. Well, how come you didn’t tell the police about Jackie
Sanders and all that at the time?
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A. Because I hadn’t actually laid eyes on Jackie Sanders. I
mean, I wasn’t going to tell the police that, “Hey, you got
another guy next door.”
Q. Well, you didn’t tell the police anything, did you?
A. No, sir. All I told them is that they can search the house.
These questions, Grant has argued in state and federal court, violated his
rights because they commented on his silence after being informed that he
had a right to be silent.
Grant has also argued that the state committed error in its closing
arguments. During the rebuttal portion of closing argument, the prosecution
again attacked Grant’s theory of the case. The prosecutor said:
Who in the world would be most interested in getting to the
bottom of it? An innocent man. An innocent man would stand
before the police and go, “Look, I didn’t have anything to do
with it. These guys just came in. They just did a murder. I
don’t want to be involved in this. I don’t want to do anything.
You know, y’all have arrested me. Y’all have taken me to jail,
accused me of killing somebody; but I’m going to be quiet about
it. I’ll tell you what. We’ll come up with this whole defense
and, you know, use the oldest defense in the world and blame
it on the dead guy. And I’m going to spring it on the jury the
day of trial.” That’s just stupid. That’s all that is. And that’s
exactly what they’ve given you.
The jury found Grant guilty. The court entered a judgment of conviction and
sentenced him to life imprisonment as a recidivist.
Grant appealed. Two of the issues that Grant argued mandated
reversal of his conviction were (1) whether the prosecutor’s arguments
violated Grant’s right to remain silent and (2) whether Grant’s trial counsel
was ineffective in failing to object. The Louisiana Second Circuit Court of
Appeal held there was no error because the prosecutor’s arguments were
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about Grant’s pre-arrest silence. Grant, 105 So. 3d at 89. That court also
held that the trial attorney’s representation was neither ineffective nor
prejudicial to Grant. Id. at 89–90. The Louisiana Supreme Court denied a
writ of certiorari. State v. Grant, 110 So. 3d 1073 (La. 2013) (mem.).
Grant then sought a writ of habeas corpus in state district court. He
presented five grounds for relief that did not include the claims made on
direct appeal regarding his right to remain silent. He was denied relief in May
2014. Both the court of appeal in August 2014 and the supreme court in
January 2016 denied his applications for further review.
The case we are deciding today started with an application under 28
U.S.C. § 2254, which Grant filed in the United States District Court for the
Western District of Louisiana in January 2016. Among the claims were the
ones presented on direct appeal from his conviction, namely, that the
prosecutor’s cross-examination and closing argument violated his
constitutional right to remain silent and that his trial counsel was ineffective
for not objecting.
A magistrate judge issued a report and recommendation that
concluded the Section 2254 application should be denied. The district court
accepted the magistrate’s recommendations “with the exception of the
findings regarding the prosecution’s comments on [Grant’s] post-arrest
silence.” The district court determined that neither the Louisiana court of
appeal nor the magistrate judge had actually considered the second set of
statements, those made during the prosecution’s closing argument. The
district court found that these comments did refer to Grant’s post-arrest
silence. The district court then held that the closing argument had violated
Grant’s rights, but he had failed to show the error was prejudicial.
The district court sua sponte granted a certificate of appealability
(“COA”). In explaining the COA, the court stated that Grant “has made a
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substantial showing of the denial of a constitutional right” regarding the
references that the prosecution made during closing argument about his post-
arrest silence. Grant appealed.
DISCUSSION
Grant is a state prisoner who is seeking relief in federal court for
alleged violations of federal law in his conviction. Under the Antiterrorism
and Effective Death Penalty Act (“AEDPA”), we will grant relief when the
state habeas proceedings resulted in a decision that (1) “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court” or (2) “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).
We highlight the standard for reviewing factual findings: “a
determination of a factual issue made by a State court shall be presumed to
be correct,” and the applicant for relief “shall have the burden of rebutting
the presumption of correctness by clear and convincing evidence.”
§ 2254(e)(1).
Grant, proceeding pro se, seeks relief based on both the prosecution’s
questioning and its closing argument. Additionally, Grant maintains his
ineffective-assistance-of-counsel claim on appeal. We proceed in two steps.
First, we determine the scope of the COA and whether amending it is
appropriate. Second, we analyze whether Grant is entitled to relief on the
claims that we hold are encompassed by the COA.
I. Certificate of appealability
“[N]o automatic right to appeal a district court’s denial or dismissal”
of a Section 2254 application exists under the AEDPA. Miller-El v. Cockrell,
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537 U.S. 322, 327 (2003). When a district court issues a final order under
Section 2254, it may issue a COA “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(a), (c)(2). The COA “shall indicate which specific issue or issues
satisfy the [required] showing.” § 2253(c)(3).
The issuing of a COA is a jurisdictional requirement for this court to
hear the appeal. United States v. Smith, 945 F.3d 860, 863 (5th Cir. 2019).
The COA exists for Grant’s appeal, so we have jurisdiction.
We next consider what has been encompassed within the COA, and
whether Grant has shown any additional issues that satisfy the COA standard
of a “substantial showing” that a constitutional right was denied. See id.A. Scope of the current certificate of appealability
The district court agreed with the magistrate judge’s “Report and
Recommendation with the exception of the findings regarding the
prosecution’s comments on [Grant’s] post-arrest silence.” The district
court concluded that the magistrate judge “only addressed the references
that the prosecution made during cross-examination.” Accordingly, the
district court assessed whether the closing argument statements violated the
rule that prosecutors may not impeach a defendant by using his silence after
being given Miranda warnings. See Doyle v. Ohio, 426 U.S. 610, 619 (1976).
The district court concluded that the closing argument statements violated
Doyle but then held that these statements “did not have a ‘substantial and
injurious effect or influence in determining the jury’s verdict,’” quoting
Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). Consequently, it concluded
that the conviction should not be overturned. The COA the district court
granted is limited to that claim, as it stated that Grant has “made a substantial
showing of the denial of a constitutional right regarding the references that
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the prosecution made during closing argument about his post-arrest silence.”
The court rejected the claim but found sufficient grounds to allow this appeal.
B. Amending the certificate of appealability
Grant’s additional claims concerning the cross-examination questions
and his ineffective assistance of counsel are not included within the COA.
We examine whether we should amend the COA.
A COA should cover those issues for which the applicant for habeas
relief “has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). Further, if the state court rejected the constitutional
claim on the merits, the applicant must show “that reasonable jurists would
find the . . . court’s assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In determining the
proper state-court decision to assess, we seek “the last explained state-court
judgment” resolving the claim. Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991)
(emphasis removed). The Louisiana court of appeal’s direct-appeal decision
from the 2012 conviction provides that state-court judgment.
The Louisiana court of appeal clearly concluded (1) there was no
ineffective assistance of counsel and (2) there was no Doyle violation for the
cross-examination questions. Grant, 105 So. 3d at 87–89, 89–90. We will
discuss how the claim about the closing argument was addressed later. The
magistrate judge’s recommendation was for a finding that these two issues
were adjudicated on the merits in state court and that there was no error
under the deferential AEDPA standard. The district court adopted the
magistrate’s report and recommendation as to these two issues. No COA
was granted as to them.
Because those two issues were adjudicated on the merits, Grant must
show that reasonable jurists would differ as to the state court’s holding before
we would consider enlarging the scope of the COA. See Slack, 529 U.S. at
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484. We have quoted the challenged cross-examination questions. What is
of particular importance is this portion: “And I believe you said that, ‘How
can you not tell the police’ — you know, talking about when they’re coming
in. ‘How can you not tell them what’s going on’ in response to one of your
questions to [defense counsel]; do you recall saying that?” Grant had already
said on direct examination that he had felt it necessary to tell police his
version of events, including explaining the muddy clothes, the scratch on his
face, and other matters. That helpful, good-citizen cooperation with police
could be seen as occurring before Grant’s arrest. It is in that context that the
cross-examination inquiry was focused — why Grant had failed to mention
so significant a matter as the escaped third shooter when he claimed he was
trying to assist police in the investigation.
The court of appeal concluded that these “addressed a time period
pre-arrest, when the defendant allowed them to come in for a protective
sweep.” Grant, 105 So. 3d at 89. We consider that to be a factual finding, as
it results from the state court examining the record and analyzing the
implications of the question. Any “determination of a factual issue made by
a State court shall be presumed to be correct,” and Grant needs “clear and
convincing evidence” to rebut that presumption. 28 U.S.C. § 2254(e)(1).
The fact finding is reasonable, and nothing before us rebuts it. Thus, a COA
should not be granted as to issues arising from the cross-examination.
The other issue not within the COA is whether Grant’s trial counsel
was constitutionally ineffective for not objecting to the cross-examination or
to the closing argument. The state court of appeal identified the argument as
being that “his attorney did not object to all of these violations of his rights
as they were occurring during trial.” Grant, 105 So. 3d at 89. The
“violations” included the Doyle issue regarding cross-examination, which
could not amount to ineffective assistance because of the state court’s
decision that the questioning was not in violation of Doyle. That is what the
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state court concluded, and that conclusion would be sustained even if the
deferential review standards of the AEDPA did not apply.
There is no reason to expand the COA to include the issue of
ineffective assistance of trial counsel for failure to object to proper cross-
examination. That leaves the question of expanding the COA to cover the
claim of trial-counsel ineffectiveness for failure to object to closing argument.
We do not see, and the district court was equally unseeing, that the state
court of appeal discussed that part of the claim. We will need to discuss how
the AEDPA guides our consideration of claims not explicitly addressed by
the state court. That consideration applies both to the claim about the
prosecutor’s closing argument, which is covered by the COA, and about
defense counsel’s failure to object to it, which is beyond the COA. Our
analysis of both will be considered together.
II. Claims concerning closing argument
We earlier quoted a lengthy portion of the closing argument. The
prosecutor referred to the defense theory at trial that the now-deceased
Sanders was the actual third person in the SUV. Some of the closing
argument could be seen as making nothing more than the same point we have
already accepted as being pre-arrest silence, but there is one part of the
argument that goes beyond. The prosecutor made one clear reference to
post-arrest silence by suggesting that the following is what Grant effectively
was saying: “You know, y’all have arrested me. Y’all have taken me to jail,
accused me of killing somebody; but I’m going to be quiet about it.”
The reasoned decision by the Louisiana court of appeal did not
specifically address the closing-argument claims, either as to the argument
itself or counsel’s failure to object. The court reviewed Grant’s Doyle
argument generally, but the court’s only quote from the closing argument
was this: that is “‘the oldest defense in the world . . . blame it on the dead
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guy. And I’m going to spring it on the jury on the day of trial.’ The
prosecutor said, ‘That’s just stupid. That’s all that it is. And that’s exactly
what they’ve given you.’” Grant, 105 So. 3d at 87. The part of the argument
where the prosecutor hypothesizes about what Grant was in effect saying
after his arrest was not quoted by the state court of appeal.
We have guidance on what to do when we need to read between the
lines of state court opinions. A rebuttable presumption exists that claims
presented to a state court have been adjudicated on the merits when relief is
denied; the presumption applies to unreasoned decisions and decisions that
address only some claims and omit references to others. Johnson v. Williams,
568 U.S. 289, 293 (2013). The important question for us is not what the state
court did not say, but what the applicant for relief did say to that court.
Grant’s briefing on direct appeal first discussed at some length the
claims we already resolved about cross-examination. That brief said: “The
prosecutor concluded this assault on the defendant’s post-arrest silence in
his closing argument.” The brief then quoted the entirety of what we quoted
in this opinion about closing argument. Later, under the issue of trial
counsel’s ineffectiveness, the brief to the court of appeal stated: “Defense
counsel failed to even object to the prosecutor’s impeachment of Mr. Grant’s
post-arrest silence or his closing argument referencing same.”
The issue, both as to the closing argument itself and as to counsel’s
silence as the argument was delivered, was presented to the state court. We
conclude that the presumption arises that the state court resolved both on the
merits. Grant has the burden of rebutting it. Hoffman v. Cain, 752 F.3d 430,
439 (5th Cir. 2014). Rebuttal involves addressing these questions:
(1) what the state courts have done in similar cases; (2) whether
the history of the case suggests that the state court was aware
of any ground for not adjudicating the case on the merits; and
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(3) whether the state courts’ opinions suggest reliance upon
procedural grounds rather than a determination on the merits.
Woodfox v. Cain, 772 F.3d 358, 371 (5th Cir. 2014).
Though Grant is proceeding pro se, and we liberally construe such
briefing, he “must still brief the issues” to preserve his arguments. Grant v.
Cuellar, 59 F.3d 523, 524 (5th Cir. 1995). On the other hand, when the state
does not argue that an issue was decided on the merits, there at least is no
argument about a presumption to be rebutted. Nonetheless, we conclude
there is no justification for rejecting the presumption that the claim was
resolved on the merits. The claim was before the state court and is not easily
differentiated from what that court did reject as grounds for reversal.
We conclude that the claims about closing argument were resolved on
the merits. We now examine whether the resolution satisfies deferential
review. The extent of the Louisiana Second Circuit Court of Appeal’s
explanation is that Grant “put Jackie Sanders and his alleged role in the
instant crime at issue in his opening statement, during his questioning of state
witnesses, and in his own testimony on direct examination by defense
counsel.” Grant, 105 So. 3d at 88–89. Of course, even if Grant injected the
theory of a then-deceased perpetrator into the trial, the state still could not
use Grant’s post-arrest silence about Sanders against him. The court of
appeal discussed Doyle and made a factual finding that the cross-examination
questions “addressed a time period pre-arrest.” Id. at 89. We have already
held that our review under the AEDPA requires us to deny relief as to that.
We hold on, analytically, to that part of the state court’s opinion as we
move to the unaddressed arguments that were before the state court. The
state court accurately commented that “Doyle error is subject to a harmless
error review. The harmless error inquiry is whether the guilty verdict
actually rendered in this trial was surely unattributable to the error.” Id. at
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88 (quotation marks omitted). We have already upheld the state court
decision that the cross-examination was not a violation of Doyle. That
questioning validly stressed for jurors that Grant had passed up pre-arrest
opportunities to mention an elusive third culprit. Consequently, we see no
prejudice when the prosecutor expanded the rhetorical net in one sentence
of his closing argument, suggesting that the unbelievability of Grant’s silence
also applied as he was being taken to jail.
Implicitly, the Louisiana court of appeal was holding that the closing
argument did not prejudice Grant. In so holding, the court did not reach “a
decision that was contrary to, or involved an unreasonable application of,
clearly established Federal law,” nor one “that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1), (2).
We do not expand the COA. As to the issue on which a COA was
granted, we AFFIRM.
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