MICHAEL B. NORTH, Magistrate Judge.
This matter was referred to the undersigned United States Magistrate Judge to conduct a hearing, including an evidentiary hearing, if necessary, and to submit proposed findings and recommendations for disposition pursuant to 28 U.S.C. § 636(b) (1)(B) and (C), and as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts. Upon review of the entire record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). For the following reasons,
Petitioner, Rigoberto Ventura, is a convicted inmate currently incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. On November 15, 2011, he was charged by bill of indictment with aggravated rape of G.L. On October 18, 2012, the bill was amended to include a count of sexual battery of H.W. (referred to by the time of trial as H.G.), a victim under the age of 13.
On July 13, 2015, his motions for post-verdict judgment of acquittal and for new trial were denied, and he was sentenced to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence for aggravated rape and a term of 50 years imprisonment at hard labor, with the first 25 years to be served without benefit of probation, parole or suspension of sentence for the sexual battery, to run consecutively. His motion to reconsider the sentence was also denied.
On direct appeal, he assigned as grounds for error the trial court's denial of his motion to sever the counts and alternative motion to continue the trial. He argued that in light of evidence only recently disclosed to the defense (a Texas Office of Community Services ("OCS') file in Texas on H.G. and a statement made by H.G.'s mother in Texas), the trial court should have granted his request to sever the counts and proceed only with the aggravated rape count, or alternatively, should have allowed a one-day continuance to allow the defense additional time to obtain the evidence relevant to the sexual battery count. On April 15, 2016, the Louisiana First Circuit Court of Appeal affirmed his convictions and sentences.
On or about May 8, 2017, Ventura submitted an application for post-conviction relief to the state district court.
On August 7, 2017, Ventura's related supervisory writ application was denied by the Louisiana First Circuit Court of Appeal.
The court of appeal rejected Ventura's application pursuant to Louisiana Code of Criminal Procedure article 926(E), which provides that inexcusable failure to comply with the provisions of article 926 may be a basis for dismissal. The court's ruling also specifically reserved for him the opportunity to file a new application for post-conviction relief in the state district court raising claims tailored specifically to his own case and to seek supervisory writs from any adverse ruling with no bar imposed for repetitiveness or successiveness. Ventura however did not pursue a new application for post-conviction relief. Instead, he filed a related supervisory writ application with the Louisiana Supreme Court. On November 5, 2018, the Louisiana Supreme Court issued a one-word denial.
Ventura subsequently filed his federal application for habeas corpus relief asserting six claims for relief (1) the trial court erred in denying his motion to sever the counts, or in the alternative, denying his motion to continue; (2) trial counsel was constitutionally ineffective for failing to subpoena G.L.'s counseling records; (3) he was denied the right to transcripts and full appellate review; (4) the prosecutor used peremptory challenges in a discriminatory manner; (5) prosecutorial misconduct during closing argument denied him a fair trial; and (6) he was denied the right to testify.
On direct appeal, the Louisiana First Circuit briefly summarized the facts:
As a preliminary matter, the Court considers the State's assertion that claims two through six, which Ventura raised on collateral review, were denied as procedurally barred under state law by the state courts and thus procedurally defaulted on federal review. The State relies on the Louisiana First Circuit's writ denial pursuant to Louisiana Code of Criminal Procedure articles 926(C) and 926(E). Article 926 sets forth pleading requirements for an application for post-conviction relief. Subsection C provides that the application must be signed by the petitioner and be accompanied by his affidavit that the allegations contained in the petition are true to the best of his information and belief. Ventura's application contained the verification statement; however, the appellate court denied relief based upon its impression that under the circumstances the allegations in his application appeared to be false, contrary to the verification. The appellate court thus summarily denied relief pursuant to subsection E, which permits dismissal for inexcusable failure of the petitioner to comply with the provisions of article 926. The Louisiana Supreme Court denied relief without explanation.
Under the procedural-default doctrine, federal courts are precluded from considering claims on federal habeas review where the last state court to consider the claims based its denial of relief on an independent and adequate state-law procedural ground. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). To satisfy the "independent" and "adequate" requirements, the state court's dismissal must clearly and expressly reflect that it rests on a state procedural bar, and the bar must be strictly or regularly applied by state courts to the vast majority of similar claims. Finley v. Johnson, 243 F.3d 215, 218 (5th Cir. 2001).
With little discussion or citation of authority, the State relies on the last reasoned decision by the Louisiana First Circuit and argues generally, without reference to any specific subsection, that Louisiana Code of Criminal Procedure article 926 is "presumptively independent and adequate."
Title 28 U.S.C. § 2254(d)(1) and (2), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), provides the applicable standards of review for pure questions of fact, pure questions of law, and mixed questions of both. A state court's purely factual determinations are presumed to be correct and a federal court will give deference to the state court's decision unless it "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)(2); see also 28 U.S.C. § 2254(e)(1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."). With respect to a state court's determination of pure questions of law or mixed questions of law and fact, a federal court must defer to the decision on the merits of such a claim unless that decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
The "`contrary to' and `unreasonable application' clauses [of § 2254(d)(1)] have independent meaning." Bell v. Cone, 535 U.S. 685, 694 (2002). A state-court decision is "contrary to" clearly established precedent if the state court applies a rule that contradicts the governing law set forth in the United States Supreme Court's cases or if the state court confronts a set of facts that are materially indistinguishable from a decision of the United States Supreme Court and nevertheless arrives at a result different from United States Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir.), cert. denied, 131 S.Ct. 294 (2010). An "unreasonable application" of [United States Supreme Court] precedent occurs when a state court "identifies the correct governing legal rule... but unreasonably applies it to the facts of the particular state prisoner's case." Williams, 529 U.S. at 407-08; White v. Woodall, 134 S.Ct. 1697, 1706 (2014).
It is well-established that "an unreasonable application is different from an incorrect one." Bell, 535 U.S. at 694. A state court's merely incorrect application of Supreme Court precedent simply does not warrant habeas relief. Puckett v. Epps, 641 F.3d 657, 663 (5th Cir. 2011) ("Importantly, `unreasonable' is not the same as `erroneous' or `incorrect'; an incorrect application of the law by a state court will nonetheless be affirmed if it is not simultaneously unreasonable."). "[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable" under the AEDPA. Harrington v. Richter; 562 U.S. 86, 102 (2011). Section 2254(d) preserves authority to issue the writ in cases where there is "no possibility fairminded jurists could disagree that the state court's decision conflicts with [United States Supreme Court] precedents." Id. (emphasis added); see also Renico v. Lett, 559 U.S. 766, 779 (2010) ("AEDPA prevents defendants—and federal courts—from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.").
The AEDPA's deferential standards of review apply only to claims adjudicated on the merits by the state courts. 28 U.S.C. § 2254(d); Henderson v. Cockrell, 333 F.3d 592, 597 (5th Cir. 2003). For claims that were not considered on the merits in the state courts, the pre-AEDPA standard of review applies. Id. at 598 (citing Jones v. Jones, 163 F.3d 285, 299-300 (5th Cir. 1998) (applying de novo standard of review to ineffective assistance of counsel claims that were raised in state court, but not adjudicated on the merits)); see also Carty v. Thaler, 583 F.3d 244, 253 (5th Cir. 2009).
Ventura claims that the trial court improperly denied his motion to sever the counts against him or alternatively continue the trial based on the State's belated disclosures of evidence pertaining to the sexual-battery offense. He also alleges that joinder of the count involving H.G. amounted to impermissible "other crimes" evidence that served only to bolster G.L's story and made it difficult for him to present separate defenses to each count. In rejecting the severance claim on direct appeal, the Louisiana First Circuit reasoned:
Additionally, on the severance claim, the court of appeal refused to consider whether the separate offenses were improperly joined because that claim was not preserved for review by contemporaneous objection at trial pursuant to Louisiana Code of Criminal Procedure article 841(A).
The court of appeal also rejected his argument that the trial court improperly denied him a continuance. In denying the alternate claim for relief, the court reasoned:
The Louisiana Supreme Court subsequently denied relief without additional stated reasons. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) ("Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.").
To the extent Ventura argues that the trial court erred as a matter of state law in denying the severance, he has failed to state a cognizable federal claim. A federal habeas court does not sit to correct errors made by state courts in interpreting and applying state law. Swarthout v. Cooke, 562 U.S. 216 (2011) (federal habeas review does not lie for mere errors of state law); Narvaiz v. Johnson, 134 F.3d 688, 695 (5th Cir. 1998) (citing Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990) and West v. Johnson, 92 F.3d 1385, 1404 (5th Cir. 1996)). "Mt is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle, 502 U.S. at 67-68, 112 S.Ct. 475; see also, Molo v. Johnson, 207 F.3d 773, 776 n.9 (5th Cir. 2000) ("Federal habeas review does not extend to state court conclusions of state law.'); Hogue v. Johnson, 131 F.3d 466, 506 (1997) (a disagreement as to state law is not cognizable on federal habeas review). Here, the court of appeal addressed the state-law issue in the context raised by Ventura at trial, i.e., the discretionary decision to afford severance or continuance for late discovery of evidence pertaining to one count). The state courts' application and interpretation of Louisiana law with respect to severing offenses or denying a continuance, even if erroneous, would not constitute grounds for federal habeas corpus relief.
On the other hand, federal habeas courts may address violations of constitutional magnitude, such as due process violations that render the criminal proceedings fundamentally unfair. See, e.g., Lisenba v. People of the St. of Cal., 314 U.S. 219, 236-37, 62 S.Ct. 280, 86 S.Ct. 166 (1941); Peters v. Whitley, 942 F.2d 937, 940 (5th Cir. 1991) (habeas corpus review is proper only to determine whether a state trial judge's error is so extreme as to render the trial fundamentally unfair or violate an explicit constitutional right). Liberally construing Ventura's challenges to the denial of his request for a severance or continuance as a due process argument, presents a mixed question of law and fact for this Court. Manning v. Warden, Louisiana St. Penitentiary, 786 F.2d 710, 711-12 (5th Cir. 1986) (failure of state court to sever counts presents a due process question of fundamental fairness on habeas review) (citing Tifford v. Wainwright, 588 F.2d 954, 957 (5th Cir. 1979)); Skillern v. Estelle, 720 F.2d 839, 850 (5th Cir. 1983) (`When a denial of a continuance forms a basis of a petition for a writ of habeas corpus, not only must there have been an abuse of discretion but it must have been so arbitrary and fundamentally unfair that it violates constitutional principles of due process."). This Court must therefore determine if the state courts' determination was either contrary to or involved an unreasonable application of federal law as determined by United States Supreme Court precedent.
On the morning of jury selection, the defense alleged that the late discovery of evidence pertaining to the incident involving H.G. prejudiced the defense of the case.
Under the circumstances, defense counsel asked the trial court to take one of three proposed courses of action in the following order of preference: (1) court-imposed discovery sanctions prohibiting the State from relying on the evidence at trial; or (2) severance of the counts and proceeding only with one count of aggravated rape; or (3) a one-day continuance of trial to allow the defense to assimilate the information.
Later the same day, the trial court had a follow-up discussion with counsel of record and confirmed that the defense's discovery request had been satisfied. The prosecutor informed the court that he had obtained the recorded statement and that would be provided to defense counsel, but that there was no OCS investigation file on record in Texas for the victim.
The Louisiana First Circuit rejected on direct appeal Ventura's argument that he was forced to go to trial without evidence that may have been exculpatory or that could have helped him impeach witnesses at trial or undermine H.G.'s credibility. Contrary to his suggestions, the appellate court found that the defense's discovery request was, in fact, satisfied. The appellate court concluded that the trial court had not abused its discretion in denying the motion to sever counts or continue trial based on the evidentiary issues.
Ventura has not shown that the state court's determination as to severance was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the United States Supreme Court. The defense's discovery request was satisfied fully and promptly, thereby affording the defense ample rime to review and incorporate the evidence into its case. He has not demonstrated that he suffered any prejudice from going forward on the sexual battery count and the record does not establish that an error in the state court's ruling denying the motion to sever rendered his trial fundamentally unfair.
As to Ventura's claim that his rights were violated when the trial court denied his motion for a one-day continuance of trial, he must demonstrate an abuse of discretion so arbitrary and fundamentally unfair that it violates constitutional principles of due process. To do so, a petitioner must show "a reasonable probability that the granting of a continuance would have permitted him to adduce evidence that would have altered the verdict." McFadden v. Cabana, 851 F.2d 784, 788 (5th Cir. 1988) (quoting Kirkpatrick v. Blackburn, 777 F.2d 272, 280 (5th Cir. 1985)). Ventura has not done so.
Here, defense counsel proposed a one-day continuance to obtain the discovery requested and assimilate the information into the defense's case. The investigation revealed that a Texas OCS file did not exist. The State had nothing to turn over with respect to that discovery request. Furthermore, the recorded statement that did exist was obtained quickly and given to the defense. Defense counsel had ample opportunity to review the statement in advance of the presentation of evidence, and more specifically, the witness testimony.
Accordingly, Ventura has not shown that the state courts' adjudication of the claim was either contrary to or involved an unreasonable application of federal law, as determined by the United States Supreme Court He is not entitled to relief on this claim.
Ventura asserts that trial counsel was constitutionally ineffective because he failed to subpoena records from G.L.'s counseling sessions at a rehabilitation center where the allegations of inappropriate sexual conduct first surfaced. He concedes that the "record appears to support that GL had been in counseling sessions due to the physical abuse by his grandmother,"
The United States Supreme Court has established a two-pronged test for evaluating claims of ineffective assistance of counsel. Specifically, a petitioner seeking relief must demonstrate both that counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 697 (1984). A petitioner bears the burden of proof on such a claim and "must demonstrate, by a preponderance of the evidence, that his counsel was ineffective." Jernigan v. Collins, 980 F.2d 292, 296 (5th Cir. 1993); see also Clark v. Johnson, 227 F.3d 273, 284 (5th Cir. 2000). If a court finds that a petitioner has made an insufficient showing as to either of the two prongs of inquiry, i.e., deficient performance or actual prejudice, it may dispose of the ineffective assistance claim without addressing the other prong. Strickland, 466 U.S. at 697.
To prevail on the deficiency prong of the Strickland test, a petitioner must demonstrate that counsel's conduct fails to meet the constitutional minimum guaranteed by the Sixth Amendment. See Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001). "Counsel's performance is deficient if it falls below an objective standard of reasonableness." Little v. Johnson, 162 F.3d 855, 860 (5th Cir. 1998). Analysis of counsel's performance must take into account the reasonableness of counsel's actions in light of all the circumstances. See Strickland, 466 U.S. at 689. "[I]t is necessary to `judge ... counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Lockhart v. Fretwell, 506 U.S. 364, 371 (1993) (quoting Strickland, 466 U.S. at 690). A petitioner must overcome a strong presumption that the conduct of his counsel falls within a wide range of reasonable representation. See Crockett v. McCotter, 796 F.2d 787, 791 (5th Cir. 1986); Mattheson v. King, 751 F.2d 1432, 1441 (5th Cir. 1985).
To prevail on the prejudice prong of the Strickland test, a petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. In this context, a reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. In making a determination as to whether prejudice occurred, courts must review the record to determine "the relative role that the alleged trial errors played in the total context of [the] trial." Crockett, 796 F.2d at 793.
With respect to an attorney's duty to investigate, the controlling law provides:
Newbury v. Stephens, 756 F.3d 850, 873 (5th Cir. 2014) (quoting Strickland v. Washington, 466 U.S. at 690-91). Furthermore, in order to establish a failure to investigate on the part of counsel, a petitioner must allege "with specificity what the investigation would have revealed and how it would have altered the outcome of the trial." Gregory v. Thaler, 601 F.3d 347, 352 (5th Cir. 2010) (quoting United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989)). He must provide factual support demonstrating what exculpatory evidence further investigation would have revealed. Moawad v. Anderson, 143 F.3d 942, 948 (5th Cir. 1998); Brown v. Dretke, 419 F.3d 365, 375 (5th Cir. 2005); Davis v. Cain, Civ. Action No. 07-6389, 2008 WL 5191912, at *10 (E.D. La. Dec. 11, 2008) (order adopting referenced Report and Recommendation). A petitioner cannot show prejudice as to a claim that his counsel failed to investigate without adducing what the investigation would have shown and that the outcome would have been different as a result. Diaz v. Quarterman, 239 F. Appx. 886, 890 (5th Cir. 2007) (citing Strickland, 466 U.S. at 696). For these reasons, brief and conclusory allegations that the attorney's representation was deficient because of a failure to investigate and develop useful evidence will not suffice. See Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994).
Based on the thorough discovery and investigation conducted by defense counsel, he was aware of the disclosures made by G.L. during the substance-abuse counseling sessions. Defense counsel filed a "rule to show cause why records should not be provided for in camera review by the court."
Furthermore, Ventura has offered nothing but broad and purely speculative assertions that first, the records would reveal any type of court-ordered, mandated rehabilitation for G.L., and second, that being required to attend rehabilitation would prove he had reason to fabricate the entire sexual abuse scenario. His allegation that further investigation would have produced information relevant to the defense is entirely unsupported and speculative. Ventura plainly has not met his burden of proof.
For these reasons, Ventura's conclusory assertion that additional investigation and subpoenaing these records would have produced evidence showing G.L. was lying falls short of demonstrating deficient performance or prejudice under Strickland. He is not entitled to relief on this claim.
Ventura claims that he was denied appellate review in violation of due process because he was not provided a copy of the record. He does not claim that the record was inadequate to resolve the claims asserted on his behalf by appellate counsel. He complains that he was unable to obtain his own personal copy of the record for the appellate proceedings.
Regarding the constitutional right to trial transcripts for appellate review, the United States Fifth Circuit has explained:
Kunkle v. Dretke, 352 F.3d 980, 985-86 (5th Cir. 2003). When Ventura requested a copy of the trial transcript, he was represented by appointed counsel on direct appeal. His counsel was provided a copy of the trial transcript and filed an appellate brief on his behalf. The brief filed by counsel reflects extensive citation to the trial-court record.
Similar claims have been rejected by federal habeas courts where a petitioner asserted he was entitled to a copy of the transcript for purposes of preparing a pro se appellate brief even though he was represented by counsel. See, e.g., Pamilton v. Warden, Avoyelles Correctional Center, 11-cv-1433, 2014 WL 4629669, at *9-10 (W.D. La. Sept. 15, 2014) (citing Rosado v. Unger, 2012 WL 5871607, at *940 (S.D.N.Y. May 4, 2012), report and recommendation adopted, 2012 WL 5871606 (S.D.N.Y. Nov. 20, 2012) ("Griffin did not entitle Petitioner to an additional copy of the transcript [for purposes of preparing a pro se supplemental brief] when it was available to Petitioner's assigned counsel')). Here, a copy of the trial record was provided and made available to Ventura through his appointed counsel. He received meaningful appellate review through briefing by appointed counsel, who raised two well-supported arguments on his behalf. Furthermore, he has not shown that he ever requested a copy of the record from counsel or that such a request, if made, was refused.
Additionally, there is no general due-process right of access to state-court records on collateral review in criminal proceedings. See, e.g., United States v. MacCollom, 426 U.S. 317, 323-24 (1976) (no constitutional right to transcripts on collateral review of a conviction; a federal petitioner on collateral review must demonstrate that his claims are not frivolous and that transcripts are needed to prove his claims before he is entitled to a free copy of pertinent transcripts); Deem v. Devasto, 140 F. Appx. 574, 575 (5th Cir. 2005); Cook v. Cain, 15-1882, 2015 WL 6702290, at *2 (ED. La. Nov. 3, 2015). An indigent defendant does not have an absolute right under federal law to a copy of trial transcripts or other record documents in connection with post-conviction or other collateral review proceedings. See Yates v. Collins, 988 F.2d 1210, 1993 WL 82111 (5th Cir. 1993) (indigent defendant not entitled to a free transcript if he had access to the record on direct appeal and fails to demonstrate that he requires the record to establish a non-frivolous post-conviction claim) (citing Smith v. Beto, 472 F.2d 164, 165 (5th Cir. 1973) (affirming the lower court's finding that there was no constitutional violation where the petitioner's attorney had access to the state-court record and trial transcripts on direct appeal and where "the petitioner did not need a transcript in order to establish his contention that he was denied effective counsel at his state trial")). As the state courts noted, Venmra's claims were not based on credible factual allegations and hardly demonstrated particularized need for transcripts. He is not entitled to relief on this claim.
This claim is based on Ventura's assertion that "he was quite certain that the prosecution had intentionally struck both African-American and persons of ethnic Spanish heritage." He alleges that "to the best of his memory, the prosecutor intentionally peremptorily challenged everyone that was not Caucasian."
The Supreme Court has held that purposeful racial discrimination in the use of peremptory strikes of prospective jurors violates the Equal Protection Clause. Batson v. Kentucky, 476 U.S. 79, 89 (1986). In evaluating whether a petitioner has established a Batson violation, a three-step analysis is employed, with the first step requiring a petitioner to make a prima facie showing that a peremptory challenge has been exercised on the basis of race. Stevens v. Epps, 618 F.3d 489, 492 (5th Cir. 2010). Ventura has not demonstrated even a prima facie case of racial discrimination.
The minute entry for voir dire proceedings reflects that the prosecution exercised only six peremptory challenges, including two during the first panel of prospective jurors and four during the second pane1.
Ventura claims that the prosecutor made improper remarks during closing argument that denied him a fair trial. He alleges that he "isn't quite certain of the events that had taken place during the Closing Argument. However, he does remember that it appeared as though the prosecutor had resorted to `name calling' and pointing at Mr. Ventura."
A prosecutor's comment does not present a claim of constitutional magnitude in a federal habeas action unless it is so prejudicial that the trial was rendered fundamentally unfair in violation of the Due Process Clause. Jones v. Butler, 864 F.2d 348, 356 (5th Cir. 1988). "[I]t is not enough that the prosecutors' remarks were undesirable or even universally condemned. The relevant question is whether the prosecutors' comments so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citations and quotations omitted); accord Rogers v. Lynaugh, 848 F.2d 606, 608 (5th Cir. 1988); Bell v. Lynaugh, 828 F.2d 1085, 1095 (5th Cir. 1987). The prosecutor's remarks must be evaluated in the context of the entire trial. Greer v. Miller, 483 U.S. 756, 765-66 (1987) (citing Darden, 477 U.S. at 179); Kirkpatrick v. Blackburn, 777 F.2d 272, 281 (5th Cir. 1985). Ultimately, "the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219 (1982).
In his memorandum in support, Mr. Ventura alleges that through his "limited knowledge of the English language, the `body language' of the prosecutor has led him to believe that `name calling had taken place." He also suggests that "the prosecutor knew that he could not understand the discussion during these proceedings, and took advantage of that fact"
Defense counsel objected without explanation. The trial court sustained defense counsel's objection. Defense counsel also requested that the jury be instructed to disregard the prosecutor's comment, and the trial court did so.
Arguably, the comment was phrased in a manner which asked jurors independently to consider and weigh the evidence presented at trial in the context of the question posed. However, even if the remark could be considered improper, it was brief and isolated. Moreover, jurors were told to disregard the objectionable comment. The comment also came at the very end of closing argument, which was followed immediately with specific instructions to jurors that they must determine the facts only from the testimony and the evidence admitted during trial. Jurors were specifically instructed that opening statements and closing arguments made by the attorneys are not to be considered as evidence.
Finally, Ventura claims that he was denied the right to testify at trial. He states that he does not recall if he had a colloquy with the trial court to determine whether he wanted to testify. He does not allege that counsel failed to discuss the issue with him or refused to allow him to testify. The record itself is silent concerning the decision.
For the foregoing reasons, it is
A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. 28 U.S.C. § 636(b)(1); Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).
