Robinson v. Crist

• Decision Date: 30 January 2002
• Docket Number: No. 01-2199.,01-2199.
• Citation: 278 F.3d 862
• Parties: Dameion ROBINSON, Appellant, v. David CRIST, Warden, MCF — Stillwater, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

278 F.3d 862

Dameion ROBINSON, Appellant, v. David CRIST, Warden, MCF — Stillwater, Appellee.

No. 01-2199.

United States Court of Appeals, Eighth Circuit.

Submitted: November 15, 2001.

Filed: January 30, 2002.

Michael F. Cromett, argued, Asst. Public Defender, Minneapolis, MN, for appellant.

J. Michael Richardson, Asst. Hennepin County Atty., argued, Minneapolis, MN, for appellee.

Before BYE, and BEAM, Circuit Judges, and GOLDBERG,¹ Judge.

BEAM, Circuit Judge.

Dameion Robinson appeals the district court's² denial of his petition for habeas corpus pursuant to 28 U.S.C. § 2254. We affirm.

I. BACKGROUND

In the early morning hours of August 24, 1997, Robinson shot and killed a crack cocaine dealer named Derangle "Dino" Riley. The evening before the murder, there was a gathering at the house of Saint Slaughter. Riley, Robinson, and several other people were present. Robinson was seen with a pearl-handled .25 caliber weapon at the residence. Several witnesses saw Robinson attempt to buy drugs from Riley, and shortly before the murder, he was seen getting into the front seat of Riley's car and the two drove off together. Robinson returned to Slaughter's house alone and Robinson and his brother again left the party a short time later. The next morning, on August 24, Riley's body was found by Slaughter in a car behind a church in Minneapolis.

Later that same day, Robinson was going to sell the pearl-handled .25 caliber gun to three men, but apparently changed his mind and instead robbed them with the weapon. Two of the three robbery victims were shot by Robinson during the course of the crime, and it was later determined that these bullets were from the same gun used to kill Riley.

At trial, Robinson's defense was that another person, likely Slaughter, had committed the murder and the robbery. Robinson's girlfriend testified at trial that Robinson had been with her during the time the robbery was committed. However, Robinson was identified by the victims as the perpetrator of the robbery. Robinson did not testify at trial, and during closing arguments, the prosecutor made the following remark concerning whether Robinson had hid the gun following the murder, and before the robbery:

So [Robinson] goes someplace else, someplace we'll never know, someplace that he knows, someplace that [his brother] knows, but he goes someplace else and ... then he has an opportunity to remove that weapon....

Defense counsel did not object to this portion of closing argument, and Robinson now claims this argument violated his Fifth Amendment right to remain silent.

Robinson was convicted and sentenced to life imprisonment. The Minnesota Supreme Court affirmed on direct appeal, and although several instances of alleged improper prosecutorial arguments are discussed and disposed of by the Minnesota Supreme Court, the court did not specifically discuss Robinson's current Fifth Amendment claim regarding the above-quoted argument. State v. Robinson, 604 N.W.2d 355, 361-63 (Minn.2000).

Robinson brought a timely petition for habeas corpus, alleging he was denied his constitutional right to a fair trial because of several allegedly improper remarks made by the prosecutor during closing arguments. In the Report and Recommendation, the magistrate judge recommended that relief be denied. Robinson filed objections to the Report and Recommendation, and the district court ultimately denied relief. The district court granted Robinson a certificate of appealability only on the issue of whether the prosecutor improperly commented on his silence in the above-quoted passage during closing argument.³

II. DISCUSSION

The Antiterrorism and Effective Death Penalty Act (AEDPA) mandates that habeas relief "shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless" the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "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).

As the magistrate judge noted, the Minnesota Supreme Court apparently did not adjudicate the precise issue before us today-whether the prosecutor improperly commented on Robinson's silence at trial in contravention of the Fifth Amendment. The magistrate judge also pointed out that the state conceded exhaustion, thereby waiving the defense that Robinson's claim was procedurally defaulted. While an exhaustion concession does not necessarily constitute a procedural default waiver, see Duvall v. Purkett, 15 F.3d 745, 746 (8th Cir.1994) (after state's waiver of exhaustion defense is accepted by the district court, procedural default issue can be addressed), we agree with the district court that because the state failed to advance a procedural default argument, such argument is waived. Ford v. Norris, 67 F.3d 162, 165 (8th Cir.1995) (state waived argument that Batson issue was procedurally defaulted by not raising it in the district court); Lawrence v. Armontrout, 31 F.3d 662, 666 (8th Cir.1994) (same); Travis v. Lockhart, 925 F.2d 1095, 1097 (8th Cir.1991) (same).

The Minnesota court's failure to adjudicate this claim on the merits, raises an interesting question on the nature of this court's review. See 28 U.S.C. § 2254(d) (applies to petitions for habeas corpus which were adjudicated on the merits in state court proceedings). Because this claim apparently was not adjudicated by the Minnesota court, we likely should apply the pre-AEDPA standard of review. Cf. Gary v. Dormire, 256 F.3d 753, 756 n. 1 (8th Cir.2001) (noting that a claim not presented in state court is not adjudicated on the merits for purposes of § 2254(d)). In Gary the district court applied the post-AEDPA standard to the petitioner's claims, even though they were not adjudicated on the merits in the state court proceeding. We speculated on the appropriateness of that standard by ultimately holding that "[w]e need not determine whether the district court applied the appropriate standard of review.... [because] petitioner has not demonstrated that he is entitled to habeas relief under either § 2254(d) or under the more liberal pre-AEDPA standard of review." Id. (citing Washington v. Schriver, 255 F.3d 45, 55 (2d Cir.2001) (assuming the claim was not adjudicated on the merits in state court, pre-AEDPA standard of reviewing mixed questions of law and fact de novo applied)).

A similar rationale guides us here because Robinson cannot demonstrate he is entitled to relief even under the more liberal pre-AEDPA standard of review for prosecutorial misconduct claims. Under this standard, Robinson must demonstrate a "reasonable probability that the error complained of affected the outcome of the trial," or that the verdict likely would have...