Alidani v. Dooley, 03-1372.

• Decision Date: 23 April 2004
• Docket Number: No. 03-1372.,03-1372.
• Citation: 365 F.3d 635
• Parties: Moyad Abdullah ALIDANI, Appellant, v. Bob DOOLEY, Warden of the Durfee State Prison, Springfield, South Dakota, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

365 F.3d 635

Moyad Abdullah ALIDANI, Appellant, v. Bob DOOLEY, Warden of the Durfee State Prison, Springfield, South Dakota, Appellee.

No. 03-1372.

United States Court of Appeals, Eighth Circuit.

Submitted: February 10, 2004.

Filed: April 23, 2004.

Steven K. Rabuck, argued, Sioux Falls, SD, for appellant.

Grant Gormley, argued, Pierre, SD (Lawrence E. Long, on the brief), for appellee.

Before RILEY and RICHARD S. ARNOLD, Circuit Judges, and HOVLAND,¹ District Judge.

HOVLAND, District Judge.

Moyad Abdullah Alidani appeals the denial of his 28 U.S.C. § 2254 habeas corpus petition. Alidani claims that the district court² erred by dismissing his petition and that he was denied due process and a fair trial due to the trial judge's comments and the ineffective assistance of counsel because his attorney failed to make an immediate motion for mistrial based on the trial judge's comments. For the reasons stated below, we affirm.

I. FACTUAL BACKGROUND

The record reveals that the defendant, Moyad Abdullah Alidani, lived with his brother, Mansour Alidani, in an apartment in Sioux Falls, South Dakota. A woman by the name of Roxanne Helm and her husband, along with Helm's children (the seven-year-old victim and her younger brother) lived in an apartment directly above the Alidanis in August of 1997. In October of 1997, Roxanne Helm and her children moved into the Alidanis' one-bedroom apartment after a marital dispute and, within a short period of time, Roxanne Helm developed a romantic relationship with Mansour Alidani.

In early November 1997, the Alidani brothers, Roxanne Helm, and her two children moved into another apartment complex in Sioux Falls. Alidani's sexual contact with the victim took place in the apartment when the victim was alone with Alidani. The victim was seven years old at the time the sexual contact occurred. Moyad Abdullahh Alidani was 29 years old.

In April of 1998, the victim was visiting at her grandmother's house when the grandmother noticed that the victim was scratching her vaginal area. The grandmother took the victim into the bathroom and noted that her vaginal area was "all chapped and raw" "almost to the point of bleeding." The victim then reluctantly told her grandmother that Alidani had inappropriately touched her. The record reveals that Alidani had exposed himself to the minor victim and also had the victim touch his penis and masturbate him to ejaculation.

Alidani was indicted by a Minnehaha County, South Dakota, grand jury for sexual contact with a minor in violation of South Dakota Codified Laws Section 22-22-7. A jury trial was held in state court in South Dakota in December 1998, and Alidani was found guilty as charged. On April 19, 2000, Alidani's conviction and sentence were affirmed by the South Dakota Supreme Court. State v. Alidani, 609 N.W.2d 152 (S.D.2000). Alidani then filed an application for writ of habeas corpus in state court which was denied on the merits. On June 12, 2001, the South Dakota Supreme Court denied Alidani's motion for certificate of probable cause to appeal the denial of his petition for habeas corpus relief.

On August 2, 2001, Alidani filed a federal 28 U.S.C. § 2254 habeas petition in the district court of South Dakota asserting that he was denied due process and a fair trial, and that he received ineffective assistance of counsel. On December 24, 2002, the district court issued a Memorandum Opinion and Order denying Alidani's petition for habeas corpus relief.

On April 22, 2003, the district court issued a certificate of appealability under 28 U.S.C. § 2253(c). Alidani contends that his constitutional right to due process and a fair trial were violated because of the trial judge's comments to the minor victim that she did not have to take the oath again and by saying to her, "I know you're going to tell the truth." Alidani asserts that he received ineffective assistance of counsel because his attorney failed to make an immediate motion for mistrial based upon the trial judge's comments to the victim.

During the trial, the seven-year-old victim testified during the state's case-in-chief and was also called by the state to testify on rebuttal. At the time the victim was called as a rebuttal witness, the victim had already testified twice under oath — once at a pretrial hearing to determine her capacity for truthfulness and a second time at the trial. At trial, during her first appearance as a witness, the victim's testimony was directed to the issue of the sexual contact. The following day the victim again took the witness stand on rebuttal. The victim's rebuttal testimony was directed to the issue of whether anyone had made any promises to her. When the victim took the witness stand on rebuttal, she immediately put her hand in the air to take the oath again. The trial court apparently felt that it was unnecessary to again render the oath to her and made the following statement to the victim: "When you were here yesterday we gave you an oath to tell the truth, and remember, that just means that everything that you saw with your eyes and that you heard with your ears. Are you all set? You don't have to do it again. I know you're going to tell the truth."

The victim then testified briefly on rebuttal and said that her mother had promised her that if the defendant, Moyad Abdullah Alidani, did not go to jail, his brother, Mansour Alidani, would buy her "lots of toys." There was no cross-examination of the witness and no objection made to the trial court's comments.

The following morning, and prior to the submission of the case to the jury, counsel for Alidani moved for a mistrial based on the trial court's comments. The basis for the motion was the contention that the trial court had vouched for the truthfulness of the victim. The trial court denied the motion and stated on the record as follows:

The court: Okay. I would state that my statement to her when — after we had gone through the swearing and everything she raised her hand again. We all understand that she raised her hand again and I wanted her to know that she did not need to take another oath. My comments to her that we know that you're going to tell truth is an expectation we have of all witnesses. In addition, I would say that when we are dealing with seven-or an eight-year-old child that just turned eight, we deal a little different with that witness than anybody else. But frankly, that's a comment that I would make to any witness in terms of my expectation of that witness. When we say we know you are going to tell the truth as an expectation on the part of the witness, and I think the jury views it as such, particularly when you are dealing with a girl who's just turning eight. So in addition I think it went by so quickly that there's no way that it would have any significant impact on this trial. I'm not even sure that, frankly, that it registered with the jury in light of what's happening at the time. So your motion is noted and I don't feel it has in any way infringed on your client's right to a fair trial, particularly in light of the fact that I was present when it occurred and I think it surprised us all when she suddenly stuck her hand up in the air again to take the oath, either for the second or third time. And I wanted her to know that, you know, we trust you, [the victim], and this is not an aggressive, alien, unpleasant atmosphere and you should be comfortable here, and that's what my comment went to.

The trial court gave the jury the following cautionary instructions at the conclusion of the trial:

My actions during the trial and ruling on objections by counsel, or in comments to counsel, were in setting forth the law and these instructions are not to be taken by you as my opinion as to how this jury should determine the issues of fact. What the verdict shall be is your sole and exclusive responsibility.

Two judges preside over this case; the judge of the facts-you, the jury and the judge of the law, who is I. My function will be to preside over this trial to see that it proceeds in a fair, orderly, and efficient manner. I must also rule on questions of law arising during the trial and instruct you as to the law of the case. I am neutral in this case. You should not take anything I may say or do during the trial as indicating what I think of the evidence or what I think your verdict should be.

Alidani did not request any special instructions to the jury regarding the trial court's comments.

Alidani was ultimately found guilty and sentenced to serve 15 years in the state penitentiary with 8 years suspended. Alidani contends that the trial court's statement ("I know you're going to tell the truth") put the court's stamp of authority on the victim's testimony, which he asserts is a violation of due process and his right to a fair trial.

II. LEGAL DISCUSSION

28 U.S.C. § 2254(d) provides that an application from a state prisoner for a writ of habeas corpus shall not be granted unless the state adjudication 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 of the United States" 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)(1) and (2). To satisfy the "contrary to" test under 28 U.S.C. § 2254(d)(1), the applicant must present a case which reaches a different result from governing United States Supreme Court precedent "on materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Alidani has acknowledged that this case is materially distinguishable from any governing United States Supreme Court precedent. We agree. However, the United States Supreme Court decision in Quercia v. United States, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321 (1933), raises some questions that warrant discussion.

In ...