Duke v. Allen

• Decision Date: 26 May 2011
• Docket Number: No. 09–16011.,09–16011.
• Citation: 641 F.3d 1289,22 Fla. L. Weekly Fed. C 2103
• Parties: Mark DUKE, Petitioner–Appellant,v.Richard ALLEN, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

641 F.3d 1289

22 Fla. L. Weekly Fed. C 2103

Mark DUKE, Petitioner–Appellant,

v.Richard ALLEN, Respondent–Appellee.

No. 09–16011.

United States Court of Appeals, Eleventh Circuit.

May 26, 2011.

Randall S. Susskind (Court–Appointed), Equal Justice Initiative of AL, Montgomery, AL, for Petitioner–Appellant.J. Thomas Leverette, Montgomery, AL, for Respondent–Appellee.

Appeal from the United States District Court for the Northern District of Alabama.Before DUBINA, Chief Judge, and EDMONDSON and WILSON, Circuit Judges.EDMONDSON, Circuit Judge:

Petitioner Mark Duke seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. We conclude that Petitioner is entitled to no relief under section 2254 and affirm the district court's grant of summary judgment for Respondent.

I. BACKGROUND

In 1999, Petitioner was prosecuted in Alabama state court for the murders of his father and three other persons.¹ At Petitioner's trial, Petitioner's defense was that he had killed only his father, Randy Duke, and had no role in the other three murders. Had Petitioner's defense succeeded, he would have avoided a sentence of death or of life imprisonment without parole.

During closing arguments at Petitioner's trial, the prosecutor summarized the prosecution's theory of the case and said these words:

[Petitioner's co-defendant] told you all of this. They want you to believe that he is a liar. They did their best to call him a liar when he testified. I wrote down what he said, “The truth needed to come out. Nobody else is going to tell it. I'm telling you the truth.” He told the truth, ladies and gentlemen, and here is how we know it, there's a witness that you heard from but he didn't come in here and talk to you from this witness stand. After he shot, stabbed, and cut the throat of Randy Duke, he took Randy Duke's blood with him throughout that house.

Closing Argument Transcript 6–7 (emphasis added).

Petitioner's counsel objected, moved for a mistrial, and then (later outside the presence of the jury) also said these words: “Let the record reflect that the district attorney pointed straight at the defendant when he said that.” Id. at 7.

The trial court denied the motion for a mistrial; the court never mentioned the motion to let the record reflect the prosecutor's supposed pointing gesture. Petitioner was convicted of capital murder and sentenced to death.

Petitioner directly appealed his conviction; he contended that the prosecutor violated state and federal law by commenting on Petitioner's decision not to testify at trial. The Alabama Court of Criminal Appeals affirmed Petitioner's conviction. See Duke v. State, 889 So.2d 1 (Ala.Crim.App.2002). The Alabama Supreme Court declined to hear the case. The U.S. Supreme Court vacated the judgment against Petitioner following its decision in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), that the Federal Constitution prohibits the execution of defendants for crimes they committed while under the age of eighteen.

On remand, the Alabama Court of Criminal Appeals instructed the state trial court to resentence Petitioner to life imprisonment without the possibility of parole; this was done. The Alabama Court of Criminal Appeals later affirmed Petitioner's sentence. See Duke v. State, 922 So.2d 179 (Ala.Crim.App.2005).

Petitioner then filed in state court a petition for post-conviction relief. The Alabama state trial court denied relief; the state appellate court affirmed. The Alabama Supreme Court again declined to hear Petitioner's case.

Petitioner then filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in federal district court. Respondent filed an answer arguing that the petition should be dismissed. The district court treated Respondent's answer as a motion for summary judgment and dismissed Petitioner's petition. This Court granted a certificate of appealability; Petitioner appealed. We affirm the dismissal.

II. DISCUSSION

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) “prohibits federal habeas relief for any claim adjudicated on the merits in state court, unless one of the exceptions listed in § 2254(d) obtains.” Premo v. Moore, ––– U.S. ––––, 131 S.Ct. 733, 739, 178 L.Ed.2d 649 (2011). A petitioner seeking relief under 28 U.S.C. § 2254 must demonstrate that the state court adjudication of the claim:

(1) resulted in a decision that 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) resulted in a decision 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).

In reviewing directly Petitioner's claim, the Alabama Court of Criminal Appeals wrote these words:

We have carefully reviewed the prosecutor's entire argument. Based on that review, it is clear to us that the jury would not have inferred the prosecutor's comments to be a reference to Duke's failure to testify. Nor do we believe that the prosecutor's comment was intended to be a comment on Duke's failure to testify or that it was “of such a character that the jury would naturally and necessarily take it to be, a comment on the failure of the accused to testify.”

We view the prosecutor's comments regarding [the co-defendant's] testimony as argument that [the co-defendant's] testimony had been corroborated by physical evidence establishing that Randy Duke's blood was found in various locations throughout the house, instead of a single location, thus attacking the defense's contention that Duke was not involved in all of the killings. When viewed in context, the prosecutor did nothing more than present his reasonable impressions from the evidence and argue legitimate inferences therefrom. Thus, this comment was not a comment on Duke's failure to testify; it was merely an attempt by the prosecutor to establish Duke's involvement in all of the killings at various locations in the house. Given these facts, the circuit court did not err in denying Duke's motion for a mistrial.

Duke, 889 So.2d at 29 (internal citations omitted) (emphasis added).

Petitioner asserts that the Alabama Court of Criminal Appeals unreasonably applied clearly established federal law by concluding that the prosecutor did not comment on Petitioner's silence at trial.

Petitioner argues that, in the context of the trial evidence—including, for instance, that the jury had “heard” from Petitioner in a recorded 911 call but not through his testimony, and that Petitioner's defense team never contested his guilt in Randy Duke's murder—it was clear that the statement would have been understood as a comment on Petitioner's silence in violation of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). Petitioner also asserts that the prosecutor ensured that the jury understood the statement was a reference to Petitioner by pointing at Petitioner during the prosecutor's closing argument.

We first address Petitioner's contention that a gesture the prosecutor made at trial ensured that the jury would understand that the prosecutor's statement referred to Petitioner.

We are limited to reviewing facts properly preserved in the trial record. At trial, Petitioner's counsel moved to have the record reflect that the prosecutor pointed to Petitioner; but defense counsel did not obtain a ruling on the motion.

Without a ruling on the motion, Petitioner's trial counsel's simple statement—“[l]et the record reflect that the district attorney pointed straight at the defendant when he said that”—is just an oral motion made by a lawyer; it does not establish the fact of a gesture having been made. And nothing else in the record corroborates counsel's assertion: neither the trial judge nor a prosecutor mentioned the gesture or responded to counsel's statement about a gesture.

Petitioner faults the Alabama appellate court for failing to address the prosecutor's gesture in reviewing Petitioner's claim that the prosecutor commented on Petitioner's failure to testify. He argues that the state appellate court—particularly in the light of the supposed gesture—unreasonably applied clearly established federal law by concluding the prosecutor had not commented on Petitioner's silence. But Petitioner's counsel failed to preserve a record adequate to allow this Court (or any of the earlier reviewing courts) to review Petitioner's claim in the light of some gesture by the prosecutor. No gesture, in fact, needs to be considered.²

But even assuming that the prosecutor pointed to Petitioner during the closing argument, it is far from plain that such a gesture would have caused the jury to draw the inference that the pertinent statement—the one about “a witness that you heard from but [that] didn't come in here and talk to you from this witness stand”—referred to Petitioner.

The trial record—including defense counsel's oral motion—is completely silent about precisely when the supposed gesture was made. The statement to which Petitioner objects arose during a discourse consisting of eight separate sentences. The prosecutor advanced several different propositions in the pertinent portion of the argument³; the gesture—if one was made—could have coincided (begun and ended) with any of the prosecutor's different statements. For example, had the gesture coincided with the prosecutor's statement about the defense team “[doing] their best to call [Petitioner's co-defendant] a liar when he testified,” the jury would have almost certainly interpreted the statement and gesture to be a reference to the defense team that had tried to discredit the prosecution's witness, not a reference to Petitioner. Or if the supposed gesture happened at the start of the sentence “[a]fter he shot, stabbed, and cut the throat of Randy Duke,” it could have suggested that Petitioner “took Randy Duke's blood with him throughout that house”...