This privilege of the judge to comment on the facts has its inherent limitations. His discretion is not arbitrary and uncontrolled, but judicial, to be exercised in conformity with the standards governing the judicial office. In commenting upon testimony he may not assume the role of a witness. He may analyze and dissect the evidence, but he may not either distort it or add to it. His privilege of comment in order to give appropriate assistance to the jury is too important to be left without safeguards against abuses. The influence of the trial judge on the jury "is necessarily and properly of great weight" and "his lightest word or intimation is received with deference, and may prove controlling." This court has accordingly emphasized the duty of the trial judge to use great care that an expression of opinion upon the evidence "should be so given as not to mislead, and especially that it should not be one-sided"; that "deductions and theories not warranted by the evidence should be studiously avoided."

289 U.S. 466, 470, 53 S. Ct. 698, 77 L. Ed. 1321.

The United States Supreme Court concluded that the trial court had overstepped its bounds and the judge had put his own experience, with all the weight to be attached to it, on the scale against the accused. The Supreme Court held that the trial court's egregious comments resulted in highly prejudicial error that warranted a reversal. 289 U.S. 466, 472, 53 S. Ct. 698, 77 L. Ed. 1321.

In a similar vein, this court in United States v. Singer, 710 F.2d 431 (1983)(en banc), held that the district court had so far injected itself into the trial as to give the jury the impression that it favored the prosecution and thereby deprived the defendants of a fair trial. In United States v. Singer, the record was replete with overwhelming evidence that the trial court had unduly intruded into the trial by reason of the judge's comments and excessive questioning of witnesses that was admittedly designed to assist the "overwhelmed" government attorneys. The trial court's comments were, in almost all instances, designed to clarify the government witnesses' testimony, to assist the government counsel, to indicate to government counsel when he should or should not make objections, to instruct government counsel on how to make the evidence more intelligible to the jury, and to suggest to government counsel how to properly examine or cross-examine a witness. 710 F.2d 431, 436. The trial court had not simply made a few isolated and arguably improper comments. Instead, the trial court had injected himself into the trial throughout the entire proceedings, and his comments clearly pervaded the overall fairness of the trial. Id. As a result, this Court, on rehearing en banc, concluded that the defendants had been so prejudiced as to deprive them of a fair and impartial trial.

We believe that the present case is readily distinguishable from the precedent of the Supreme Court of the United States as established in Quercia v. United States. The present case is also distinguishable from the precedent of this Court in United States v. Singer. The trial court in each of these cases had actively injected himself into the entire trial proceedings and had made extremely prejudicial comments that pervaded the overall fairness of the trial and which tended to accentuate and emphasize the government's case. More important, the trial court's charge to the jury in Quercia concerning the defendant's credibility was extremely egregious and prejudicial because the trial court addressed the jury and specifically informed the jury that "every single word that man (the defendant) said ... was a lie." The present case is clearly distinguishable from the facts in Quercia and the highly prejudicial comments made by the trial court to the jury. Alidani has not met his burden and has failed to satisfy the "contrary to" test under 28 U.S.C. § 2254(d)(1).

As a result of having failed to satisfy 28 U.S.C. § 2254(d)(1), Alidani then asserts that he has satisfied 28 U.S.C. § 2254(d)(2) and argues that the determination the trial judge's comment was not prejudicial was an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. It is clear that the parties agree to nearly all of the underlying facts. The disputed issue is whether one underlying fact-the trial court's statement, "I know you're going to tell the truth," was prejudicial to Alidani and resulted in a denial of due process and a fair trial. Alidani has made no clear and convincing showing that the jury was impacted by the judge's statement. See 28 U.S.C. § 2254(e)(1).

The context of the comments made by the trial court must be carefully considered in the analysis of the issues presented. The challenged comments by the trial court were made on rebuttal the day after the state rested its case and immediately preceding the testimony from the victim. The trial court's comments were made in the context of the court explaining to the young victim that she need not take the oath again. The isolated comment to the witness was simply a reminder to the child that she was still under oath to tell the truth. There is no showing that the timing and the context of the trial court's comments prejudiced Alidani or had any effect on the jury.

We agree with the South Dakota Supreme Court which noted that the trial court's comments could have been made with more judicial clarity. State v. Alidani, 609 N.W.2d 152, 156 (S.D.2000). However, there has been no showing of any intent on the part of the trial court to vouch for the credibility of the victim/witness, to remove the question of the victim's credibility from the jury, or to enhance her status with the jury. The trial court's statement taken in context was not a statement vouching for the victim's credibility. Instead, the statement was designed to calm a young, seven-year-old victim of a sexual crime and was made in the context of the trial court's expectation of the witness to tell the truth.

The trial court also gave the jury several cautionary instructions concerning any personal comments made by the judge during the trial as well as closing instructions concerning the role of the jury. Under this record and in this factual context, Alidani has not met his burden of establishing error.

Finally, Alidani contends that he received ineffective assistance of counsel because his trial attorney failed to make an immediate motion for mistrial based on the trial judge's comment to the victim. The record reveals that the motion for mistrial was made the next morning in chambers. In order to prevail on the claim of ineffective assistance of counsel, Alidani must satisfy the tests set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and he must demonstrate deficient performance and prejudice.

The United States Supreme Court has set forth a two-part test for evaluating ineffective assistance of counsel claims:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or... sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

To satisfy the first prong, the movant must demonstrate that counsel's performance "fell below an objective standard of reasonableness." 466 U.S. at 688, 104 S. Ct. 2052. There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. 2052. To satisfy the second prong, the movant must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. 2052. We agree with the district court's finding that there is no reasonable probability that if an immediate objection or a motion for mistrial had been made, that the result of the trial would have been different. As a result, Alidani has failed to demonstrate deficient performance or prejudice.

For the reasons stated above, we affirm the district court's denial of Alidani's 28 U.S.C. § 2254 application for habeas corpus relief.

RICHARD S. ARNOLD, Circuit Judge, dissenting.

The Court rightly points out that on review of an application from a state prisoner for a writ of habeas corpus the writ "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.'" Ante at 639. The Court also rightly acknowledges that the central question in our current review is whether the trial judge's denial of Mr. Alidani's mistrial motion was contrary to existing Supreme Court precedent. Ibid., and see Williams v. Taylor, 529 U.S. 362, 405, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000) ("A state-court decision will certainly be contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases.").

Unlike the Court, however, I believe the South Dakota trial judge's denial of the motion for mistrial contradicts Quercia v. United States, 289 U.S. 466, 53 S. Ct. 698, 77 L. Ed. 1321 (1933). Therefore, I respectfully dissent.

The statute requires, in order to satisfy the "contrary to" portion of 28 U.S.C. § 2254, that the petitioner must show that the state courts in his case reached a result different from governing precedent from the Supreme Court of the United States "on materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 405, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). I do not contest the Court's factual summary of Quercia, but I do question the Court's attempt at distinguishing the legal conclusions reached by that case. Quercia stands not merely for the minimal claim that a trial judge is prohibited from making only "extremely egregious and prejudicial" comments as to the credibility of a witness. Ante at 640. Instead, the case holds that it is almost always reversible error for a trial judge, by injecting his own opinion into the analysis, to intrude on, and thus take away from, the defendant's right to have the jury weigh the credibility of a witness. Quercia, 289 U.S. at 471, 53 S. Ct. 698.

In the present case, by declaring in front of the jury that he knew the victim-witness would tell the truth, the trial judge exceeded his role as "governor of the trial," and took on the jury's assigned task. Id. at 469, 471, 53 S. Ct. 698. Comments of a trial judge as to a witness's credibility are "of a sort most likely to remain firmly lodged in the memory of the jury and to excite a prejudice which would preclude a fair and dispassionate consideration of the evidence." Id. at 472, 53 S. Ct. 698. There could be exceptions to this rule, of course. There are always exceptions. For example, if the witness as to whom the offending comment was made has his testimony stricken for some reason, or if the witness is on the stand only briefly and gives truly inconsequential testimony, I could see a basis for letting the conviction stand notwithstanding the comments of the trial judge. Nothing of the kind occurred here, however.

What are the factors that might serve to distinguish Quercia from the present case? The Court seems to place considerable weight on the trial judge's subjective intention — he did not mean to affect the jury's deliberation. I do not believe that this factor can be controlling or even relevant in this context. The important thing is what the jury heard. That is all they know about the judge's intention. I would look to what was said, and not to what the judge intended. There are some things that a trial judge should just not say, whatever his intent. The case at hand is a good example. It is not for trial judges to weigh credibility in jury cases. The comment here intruded on the defendant's right to have the issue of credibility determined by the jury only. It is important to remember that this case came down to a swearing match. Was the defendant telling the truth, or was the prosecuting witness? So the judge's comments went straight to the heart of the key issue that the jury had to decide.3

It may be true, as the Court says, that the facts in Quercia were "worse" than the facts here.4 In Quercia, the comment related to the credibility of the defendant himself, not to another witness, and was made directly to the jury, not to the witness. I don't see why these differences make a legal distinction. The important thing is that the jury heard the comment, and, in the present case, the testimony of the alleged victim was virtually the only evidence the government offered.

The trial court gave the jury cautionary instructions. This was also done in Quercia, as the Supreme Court's opinion notes.

The trial court explained that it intended only to remind the child witness that she was still under oath. This is a routine aspect of trials. When witnesses who have earlier testified on direct take the stand on rebuttal, they are routinely told that they are still under oath. There is no need to repeat the oath. What happened here went far beyond that, though I accept the trial judge's comments that he did not intend to go beyond it. I have never heard of a judge's making a statement like this in front of the jury.

It is said that the trial court's comments could not have been prejudicial, because they were in the future tense, directed solely to the witness's rebuttal testimony to come, which testimony was peripheral to the main issue in the case, whether the abuse had occurred, and whether defendant had committed it. This explanation won't wash. When the trial court said to the witness that it believed she would tell the truth, it must have had, or thought that it had, some basis for the statement. The basis, most likely, was the impression that the witness had made on the trial court during her direct testimony. Thus, the trial court was saying, in effect, that the witness would tell the truth on rebuttal because she had done so as part of the government's case-in-chief.

It is said that the comment was not prejudicial, and the opinion of the Supreme Court of South Dakota, making that finding, is cited in support as a finding of fact. I do not believe that whether a certain comment was prejudicial is a "fact" as that term is used in the law. Prejudice is to be determined from all of the surrounding circumstances. There is and probably can be no direct evidence of the jury's mental reaction to the comment. Rather, we have to look to the words of the comments themselves and to their natural tendency to persuade a juror. If you look at the portion of the Quercia opinion dealing with prejudice, you will find that it is fairly cursory. The Court evidently thought that comments of this kind were nearly always prejudicial, if not literally always.

What is the rule of Quercia? I suggest that the following sentence can be taken as a capsule of the Court's holding: "The influence of the trial judge on the jury is `necessarily and properly of great weight' and `his lightest word or intimation is received with deference, and may prove controlling.'" I believe that what happened here is a violation of that rule.

For these reasons, I respectfully dissent.