448 F. App'x 820
10th Cir.2011Background
- In 1995, Dunlap was convicted of two counts of second-degree kidnapping, aggravated robbery, and theft for a 1993 Burger King armed robbery and sentenced to 75 years.
- That Burger King conviction was used as a statutory aggravator in Dunlap’s separate Chuck E. Cheese murders trial.
- Dunlap pursued habeas relief under 28 U.S.C. § 2254; district court denied the petition.
- On appeal, Dunlap challenged (1) venue change due to prejudicial pretrial publicity and (2) prosecutorial vouching in closing arguments.
- The panel read COA jurisdiction as encompassing both presumptive and actual prejudice claims, then affirmed the district court’s denial.
- The court held de novo review and deferred to state court findings unless they violated § 2254(d) standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Pretrial publicity prejudice | Dunlap contends publicity was presumptively or actually prejudicial. | State court reasonably limited prejudice analysis and found no substantial prejudice. | Affirmed that no presumptive or actual prejudice invalidated the Burger King trial. |
| Improper vouching in closing | Prosecutor’s statements vouched for witnesses’ credibility and biased the jury. | Statements were fair comment on evidence and defense theory, supported by record. | Affirmed that no due process violation occurred; no improper vouching. |
Key Cases Cited
- Skilling v. United States, 130 S. Ct. 2896 (Supreme Court 2010) (presumption of prejudice is reserved for extreme cases)
- Rideau v. Louisiana, 373 U.S. 723 (Supreme Court 1963) (extensive media coverage can disrupt proceedings)
- Estes v. Texas, 381 U.S. 532 (Supreme Court 1965) (media overrun of courtroom noted as extreme publicity)
- Sheppard v. Maxwell, 384 U.S. 333 (Supreme Court 1966) (carnival atmosphere and pervasive publicity jeopardize fair trial)
- Murphy v. Florida, 421 U.S. 794 (Supreme Court 1975) (juror exposure to prior convictions does not per se violate due process)
- Irvin v. Dowd, 366 U.S. 717 (Supreme Court 1961) (actual prejudice shown by pervasive pretrial opinions can occur)
- Patton v. Yount, 467 U.S. 1025 (Supreme Court 1984) (opinion that jurors can set aside preconceived notions if impartial)
- Gardner v. Galetka, 568 F.3d 862 (10th Cir. 2009) (percentage of jurors with opinions does not prove actual prejudice)