Demarkus Hodge v. Pat Hurley, Warden

tension that exists do not believe mandates the conclusion the

between them Moreover, respectful

Majority reaches. Majority

disagreement courts, a state’s characteriza

Ohio state does not control its procedures

tion of its for federal constitutional

characterization Therefore, I disagree with the

purposes. “in

Majority’s conclusion that White was decided,

correctly both because misread holding its is at

state law because the structure and function of

odds with dispute Majority’s

AEDPA.” While points,

conclusions on both those correct, it Majority simply were does light

not matter in of the Constitution’s re sense,

quirements. In that v. White

Schotten misread state law no more so Douglas

than v. did Hal California Michigan.

bert v. HODGE, Petitioner-

Demarkus

Appellant,

v. HURLEY, Warden, Respondent-

Pat

Appellee.

No. 03-3166.

United Appeals, States Court of

Sixth Circuit.

Argued: Aug. 2004.

Decided and Filed: Oct. Haire,

ARGUED: Theresa G. Public Office, Defender’s Ohio Public Defender Commission, Columbus, Ohio, for Appel- Zemba, Joseph lant. Mark Office of the Ohio, Cleveland, Attorney Ohio, General of Appellee. for ON BRIEF: Siobhan R. Clovis, Office, Public Defender’s Ohio Pub- Commission, Columbus, Ohio, lic Defender Appellant. Zemba, Joseph Mark Of- Attorney Ohio, fice of the General of Cleveland, Ohio, for Appellee. SILER, MOORE, COLE, Before: and Judges. Circuit J., MOORE, opinion delivered the COLE, court, J., joined. in which SILER, 396-99), (pp. J. delivered separate dissenting opinion.

OPINION MOORE, Judge. Circuit a child-rape only This is case where the evidence sufficient to sustain a conviction jury com- determination plaining witness was more credible than During egregiously the defendant. im- proper closing argument, witnesses, credibility commented case, misrepresented the facts of the made defendant, derogatory remarks about the generally tried to convince the character, convict on the basis of bad all idly by.1 while defense trial counsel sat We conclude that the defendant’s trial constitutionally counsel was ineffective misconduct, failing object to this that the court’s determination to the state closing argument appendix opinion. as an tó this entire attached birthday party at Fenn’s house. application an unreasonable brother’s contrary was any- Supreme prec- party, Court While Fenn did not tell clearly established However, Accordingly, we REVERSE the one what she had seen. Fenn’s edent. grandmother, Lovejoy, thought REMAND the case to Floncia decision below acting strangely with instructions that a Jane was and decided to court the district giving take corpus, of habeas Jane home her. conditional writ ninety days retry the State Ohio Lovejoy give When Floncia tried to Jane custody, him from release Hodge or early evening, began cry- Jane bath GRANTED. ing, Lovejoy and Floncia noticed blood Jane’s underwear and three small cuts I. BACKGROUND genital Lovejoy Jane’s area.5 Floncia Background A. Factual (Floncia’s Lovejoy called to Barbara aunt), daughter and Fenn’s who in the Demarkus Petitioner-Appellant portion downstairs of the house at the rape convicted of of a child (“Hodge”) was time, and showed her the blood. Barbara age in years thirteen Ohio state under Lovejoy party then went back to the mandatory life im- court and sentenced got Lovejoy Fenn. Either Barbara or At the time of the events at prisonment. police, Fenn called the and ambulance case, Hodge was a seventeen- issue in this Fenn, Jane, took and or one more other dropout living with year-old ninth-grade Elyria Hospital. relatives Memorial twenty-three twenty-four-year-old or hospital That did not right equip- have the (“Fenn”), Fenn in Lo- girlfriend, Consuela Jane, ment to group examine and the was rain, background pre- factual Ohio. The hospital, sent to another Joseph’s. St. can be summarized by sented the State as follows: At Joseph’s, by St. Jane was examined 22, early Timothy Omley

In afternoon on Dr. (“Dr.Omley”), December who just area, begun taking injury had a bath noted minor genital Fenn to her moaning coming apparently any diagnosis when she heard from her did not make as Concerned, daughter’s jumped room. to whether sexually Jane had been assault- tub, bedroom, 15,1997 ran January out of the bath ed. On February and Hodge process sexually and found by Jane was examined Nurse Practi- (“Nurse penetrating three-year-old daugh- Fenn’s McAliley tioner Lauren McAli- (“Jane”).3 ter, couple ley”). 18, 1997, Doe2 February Jane On Jane was briefly, Hodge and fought by McAliley’s threatened to also examined super- Nurse (“Dr.McDavid”). visor, kill any- Fenn and her children she told Dr. Lolita McDavid Fenn, happened. Hodge, one what had Both McAliley Nurse McDavid Dr. and Fenn’s three children4 then went to a at trial expert testified as witnesses. pseudonym protect range. 2. We use the Jane Doe to in that Two inches maximum.” J.A. identity (Test. of Fenn's minor child. Fenn). at 364 Consuela Specifically, Hodge Fenn testified that "had Hodge 4. Fenn testified that was not the father Jane, penetrated” penis and that "his was any of her children. ("J.A.”) Appendix inside her.” Joint (Test. Fenn). 340-41 amination, Consuela On cross-ex- 5. The underwear never was introduced in evi- she demonstrated distance that dence, Lovejoy immediately as Floncia threw Hodge's penis penetrated, she believed apparently it into the bathtub and washed off judge which the read in the record trial all of the blood. inch, half, "about an inch and a somewhere house, initially interviewed law lived Fenn’s he would watch Fenn was Fenn, Jane, officers while enforcement eight day, Fenn’s children hours a five Elyria were at Memorial relatives week, days a while Fenn was at work. Fenn did not tell the officers Hospital, but Hodge spent his free time alone with witnessing about the incident. anything children, many Fenn’s and would have had evening, possibly early or Later that same opportunities rape Jane when Fenn was morning, spoke the next Fenn with De- home, not at were he inclined such to take again failed to mention tective Miller (There an action. was accusation or However, the actual act.6 having seen evidence that had ever in- been 24, 1996, step- December Fenn told her children, volved in other sex acts with mother, Fenn, Alice that she had seen previously anything that he had ever done relayed Jane. Alice Fenn Hodge penetrate sexually improper with of Fenn’s chil- members, family this information to other dren). Hodge suggested that Fenn’s accu- Lovejoy began threatening and Barbara sations could be motivated Fenn’s fami- go jail would herself if Fenn that she ly’s intense dislike of him. implicate Hodge.7 she did not trial, that, McAliley At Nurse testified to admit that she witnessed agreed Fenn performing genital after examination on incident, Lovejoy brought and Barbara Jane, physical she found no evidence of Fenn to talk to Detective Miller. After Nonetheless, sexual abuse.8 McAli- Nurse detective, Fenn her discussion with ley initial diagnosis made an “that sexual jail charged child put possible.” (McAliley abuse J.A. at 420 endangering report and failure to crime. Test.). later, McAliley As Nurse later ex- charges against Some months dismissed, not until plained, finding Fenn were but after she would make against Hodge Fenn testified before “possible” except sexual abuse was in the resulting grand jury. The indictment of just case of a “newborn that’s come out of February 19, Hodge appears to be dated (McAliley at its mother’s womb.” J.A. 431 1997. Test.). However, McAliley Nurse later diagnosis “probable” elevated her sexual

Hodge a different version of presented reviewing police reports abuse after indi- account, According to these events. cating that Fenn had claimed that she had Hodge nothing get more than did Jane Hodge raping J.A. at 419- witnessed Jane. go birthday party dressed to to a on the Test.). 20, 424, (McAliley This eleva- question. Hodge afternoon in further as- during McAliley’s diagnosis the several months he tion in Nurse was serted Syndrome 6. one to take the blame that someone else did Battered Women's was discussed extensively during prosecution's closing open [expletive] mouth. if she didn't (Test. argument explanation Lovejoy). as an for Fenn's earlier J.A. at Barbara Hodge rape failures to state that she had seen However, 8.Specifically, McAliley Nurse testified: expert testimony Jane. no or other Syndrome evidence on Battered Women's Q. you telling jury So are the Court and presented jury. by got you, [Jane] the time there absolutely physical sign[] of her Lovejoy 7. Barbara testified that Fenn admit- being abused on December 23rd? alleged witnessing ted act: nonspecific findings A. had some She abuse, [i.e., not tie to sexual so the Lovejoy] got could after I Barbara done talk- Yes, Yes, essentially normal. that is ing threatening exam was to her and her .... told, telling you. telling what I am because I was her she was Test.). (McAliley going go jail, going J.A. at 417-18 she was to be the records, substantial, according physical to Nurse there was no because evidence sexual McAliley, “probable” abuse “means that could confirm that Jane had been history, physical, the laborato- However, sexually abused. rather than ry, summary, very are com- the behavioral relying police reports on the bill Test.) (em- (McAliley pelling.” J.A. at 433 (and particulars alleged eyewitness ac- added). phasis therein) count necessary to Nurse McAli- ley’s diagnoses,9 and Dr. McDavid’s Stein- physical Dr. McDavid testified that the conflicting er testified that stories diagnostic, examination of Jane was “not required Fenn told different times him say meaning could that some- something disregard her version of the events en- thing happened had not (McDavid happened.” tirely. eyewitness J.A. at 466-67 Without account of Test.). Similarly, reported changes in rape willing rely, on which he was Stein- “suggestive” Jane’s behavior were genital er concluded that Jane’s minor in- “concerning” “non-specific.” but J.A. at jury injury,” was “a straddle J.A. (McDavid Test.). ques- 465-66 On further caused falling straddling a hard testified, essence, tioning, Dr. McDavid object, than sign rather of sexual assault. changes that Jane’s behavioral were non-

specific any major because behavioral Background B. Procedural change suggestive can be of sexual abuse. (McDavid Test.). However, despite Id. Hodge was convicted an Ohio physical these nonconclusive and behavior- February That day, same al findings, Dr. McDavid’s review of the state trial judge Hodge sentenced to a police reports primarily those portions of mandatory term of imprisonment,10 — life police reports discussing allega- Fenn’s and found that Hodge qualified as a sexual tion being raped— that she witnessed Jane predator under Hodge’s Ohio law. initial allowed her to conclude “within a reason- appeal was dismissed grounds, on technical degree certainty” able of medical that Jane after some difficulties was al- (McDavid raped.” “was at 449-50 J.A. reopen Nevertheless, lowed to appeal. (McDavid Test.); Test); J.A. at 467-468 rejected the Ohio Court of Appeals all of (“[W]e police see also J.A. at 456 read the Hodge’s claims. The Supreme Court of true.”). reports accept to be we them Ohio appeal. denied leave to Hodge filed a Steiner, petition

Hodge’s in federal court expert, Daryl Dr. did for writ of habe- corpus opportunity pursuant 2254, § have the to ex- to 28 physically U.S.C. McAliley asserting amine Jane. grounds Like Nurse and Dr. four of ineffective assis- McDavid, Steiner trial of testified tance counsel.11 The district court de- based on his review of the relevant medical nied the petition entirety, in its and we 9. 11.Hodge conducted an extensive asserts that his trial counsel was issue, suggesting (1) cross-examination on this "failing] object egre- ineffective in: accept that Dr. Steiner's failure to as true the misconduct;” (2) gious prosecutorial ”fail[ing] allegation rape of contained in the bill of object improper expert particulars "intellectually was not honest.” (3) reports;” "failing] object incomplete (Steiner Test.); J.A. at 577 see also J.A. at instructions;” (4) "fail(ing) to ade- (Steiner Test.). 574-77 quately expert inform his medical witness about the facts of the case.” atBr. 2. 10. According sentencing judge, Hodge eligible "parole will be for consideration after (Sentenc- serving years.” ten full J.A. at 772 Tr.). ing

375 (1997). 2059, all 117 appealability S.Ct. 138 L.Ed.2d 481 a certificate granted statute, may grant Under this we ha- petition.12 issues raised corpus person beas relief on behalf of a II. ANALYSIS custody respect state claim adjudicated that a court state on the mer- A. Jurisdiction its unless the state court decision was being Hodge asserted he was As “contrary clearly to” Supreme established by the of Ohio violation of the held State precedent, appli- Court “an unreasonable the United States Sixth Amendment of clearly cation of’ established Supreme Constitution, juris- the district court had precedent, Court or “an unreasonable de- corpus petition pur- diction over his habeas in light termination of the facts § ap- 2254. suant to 28 U.S.C. We presented.” evidence 28 U.S.C. jurisdiction all on which pellate over issues 2254(d).13 § grant- was appealability the certificate 1291, §§ 2253. ed. 28 U.S.C. Assistance Trial C.Ineffective Counsel B. of Review Standard peti Hodge argues a district court denies a When state 2254, § appli tion habeas relief under court decision was an unreasonable legal Washington, that court’s conclusions de cation of Strickland v. 466 review 512, 668, 2052, Gorcyca, 244 F.3d 104 674 novo. Palazzolo v. U.S. S.Ct. 80 L.Ed.2d (6th denied, Cir.2001), (1984), Hodge’s agree. 515 cert. 534 U.S. and we claim of (2001). 828, 68, 122 ineffective of trial S.Ct. 151 L.Ed.2d 35 assistance counsel sim petition ply requires filed on that he two Hodge’s As habeas demonstrate 2001, 20, July scope things: performance by it falls within the deficient trial counsel, prejudice Death trial the Antiterrorism and Effective from counsel’s (“AEDPA”). 687, Penalty performance. Act of 1996 See deficient Id. 104 320, 326-27, Murphy, satisfy performance Lindh v. S.Ct. 2052.14 To U.S. any of is different from an incorrect or erroneous 12. The State does not maintain that currently proce- application claims before this court were federal Id. at law.” durally defaulted. S.Ct. 1495. Taylor, In Williams v. 529 U.S. court defined the test as 14.The Strickland (2000), S.Ct. 146 L.Ed.2d 389 the Su- follows: preme explained Court effect of A convicted defendant's claim that coun- 2254(d)(1): § defective as to re- sel's assistance so clause, "contrary Under the to” a federal quire death reversal of a conviction or may grant court the if the state habeas writ First, components. sentence has two opposite arrives at a court conclusion per- defendant must show that counsel's by question this Court a reached requires formance was deficient. This if state court a case law or decides showing that counsel made errors so seri- differently than a set this Court has on functioning ous that counsel was not as materially indistinguishable facts. Under guaranteed by the "counsel” the defendant clause, application” a the "unreasonable Second, the Sixth Amendment. the defen- may grant federal habeas court the writ if perform- dant show the deficient must govern- the state court identifies the correct prejudiced requires ance the defense. This legal ing principle from this Court's deci- showing that counsel’s errors were so seri- unreasonably applies princi- sions but deprive a fair ous as to the defendant of ple prisoner’s to the facts of the case. trial, Williams, 412-13, Un- a trial whose result is reliable. 529 U.S. at 120 S.Ct. 1495. showings, it application law less a defendant makes both "[A]n unreasonable of federal only must demonstrate that the have been different. The issue is prong, Hodge received “fell an representation he below contrary then whether the state court’s objective reasonableness.” standard conclusion was unreasonable. forth As set 688, 2052.15 Although Id. at 104 S.Ct. below, in more detail we conclude that it “strongly presumed to have attorney is was. assistance,” adequate per-

rendered prong repre- formance is satisfied Question 1. The Misconduct falls sentation issue “outside the wide Supreme As the Court has em range professionally competent assis- phasized, power prosecu the tremendous a 690, tance.” Id. at 104 S.Ct. 2052. We may accompanied by special tor wield is a object that trial believe counsel’s failure to responsibility power fairly: to exercise that improper of the numerous state- prosecution’s closing argu- in the ments prosecutor] representative [A range.16 ment is well outside this ordinary party not of an to a controver sy, sovereignty but of a obligation whose satisfy To prejudice prong, govern impartially compelling is as Hodge had to demonstrate “a reasonable all; obligation govern its that, probability unpro but for counsel’s interest, therefore, whose in a criminal errors, proceed fessional the result prosecution is not that it shall win a 694, ing would have been different.” Id. at case, justice but that shall be done. As Hodge challenged 104 S.Ct. 2052.17 As such, peculiar very he is a defi itself, conviction him required to dem law, nite sense the servant of the that, probability onstrate “a reasonable ab guilt twofold aim of which is that shall errors, sent the the factfinder would have escape may or innocence suffer. He respecting guilt.” had a reasonable doubt prosecute with earnestness vigor— 695, 104 Id. at In a S.Ct. 2052.18 trial such indeed, But, he should do so. one, while he as this depended where the result blows, may strike hard not at primarily jury’s on the belief as to whether Hodge credible, liberty to strike foul It or Fenn was more ones. is as much believe probability duty improper there is a reasonable to refrain from meth proceeding result of the would ods produce wrongful calculated to cannot said applying the conviction or 17. A prejudice court Strickland's prong death sentence resulted totality from breakdown "must consider the of the evi- Strickland, adversary process judge in the jury.” dence before the renders the 695, Accordingly, result unreliable. 466 U.S. at 104 S.Ct. 2052. 668, 687, prejudice Washington, necessarily Strickland v. 466 U.S. determination is af- (1984). quantity quality 104 S.Ct. fected 80 L.Ed.2d 674 of other against particu- evidence the defendant. In objective 15. lar, This reasonableness must be de- only weakly sup- "a verdict or conclusion termined on the basis of “the facts of the ported by likely the record is more to have case, particular viewed as of the time of coun- been affected errors than one with over- Strickland, sel's conduct.” 466 U.S. at whelming support.” record Id. at 104 S.Ct. 2052. S.Ct. 2052. 16. As we conclude that is entitled to preponder- This is lesser standard than relief evidence, on his claim that his trial counsel was accordingly ance of the a defen- constitutionally failing object ineffective in dant "need not show that counsel's deficient misconduct, egregious likely conduct more than not altered the out- Strickland, Hodge's need not address other ineffective- come in the case.” 466 U.S. at 693, added). assistance (emphasis claims. 104 S.Ct. 2052

377 witnesses, credibility every legitimate including Hodge, use as is to conviction just one. bring about Fenn, means family, Steiner, Fenn’s Dr. Dr. Om- average jury, say It fair to Jackson, ley, McAliley. Dr. and Nurse confidence degree, or less has greater Two of particularly these statements were plainly obligations, which so that these egregious, they constituted comment on attorney, prosecuting will upon rest veracity key of the two witnesses in faithfully Consequently, observed. (Hodge) the case—the defendant and the insinuations, and, suggestions, improper (Fenn). First, complaining witness personal assertions of knowl- especially, prosecutor lying asserted “is apt carry weight much edge are to extricate himself from what he’s done.” they accused when should against the (final closing argument by J.A. at 189 carry properly none. prosecution). com- prosecutor The then States, 78, 88, 55 Berger v. 295 U.S. United by claiming that pounded the misconduct (1935); 629, also 79 L.Ed. 1314 see S.Ct. believable, absolutely “Consuela Fenn is Lott, 160, 51 Ohio St.3d 555 State v. family absolutely believable.” J.A. (1990) 293, (quoting N.E.2d 300 several (final closing argument by prosecu- stat at 189 Berger, sentences from the above “[tjhese ing apply comments tion). attorneys.”), equal prosecuting force to Ohio citing, quoting, discussing Without denied, 1017, 111 t. 498 U.S. cer statements, any of these the state court (1990). 591, 112 L.Ed.2d 596 Unfor S.Ct. found: act un tunately, when a does fairly, there is little a defendant can do spoken by prosecut The comments attorney rely than on his or her other ing attorney were in the context of here objection. lodge appropriate timely an contrasting prosecution the defense and objection can

A failure to make such prosecutor did not claim witnesses. The consequences for an indi devastating have personal knowledge to have wit Accordingly, we have vidual defendant. prose ness’s truthfulness. We find the object a failure to previously held that credibility cutor’s comments on can amount prosecutorial misconduct witnesses were within the bounds of See, e.g., ineffective assistance of counsel. (6th Mills, 779, Price, 136, F.3d 785-86 398 Gravley v. 87 v. 60 Ohio St.2d [State Bordenkircher, Cir.1996); 590 Rachel v. denied, (1979), 446 N.E.2d cert. U.S. Cir.1978).19 (6th 200, F.2d 2169, 943, 100 64 L.Ed.2d 798 S.Ct. (1980) ]. Misrepresentation in Evi- a. of Facts

dence and Comment on Witness at *7 Hodge, State v. WL Credibility 2000) (Ohio Ct.App. (unpublished) Oct. Credibility i. Comment on Witness ”), by 91 {“Hodge appeal leave to denied (2001). 1459, 743 N.E.2d 399 Ohio St.3d closing Throughout argument, the address explicitly court did not prosecutor repeatedly commented on the state prosecuting particular the defendant and the previously We noted the ties of witness, however, dangers posed by prosecutorial misconduct in a strict adherence prosecu- sexual abuse cases: appropriate evidence and rules of required to ensure fair torial conduct is involving Cases sexual abuse exert an al- trial. pressure emotions most irresistible on the (6th Parker, v. 11 F.3d 616-17 Martin bench and bar alike. Because such 1993). typically on the relative credibili- Cir. cases turn 378 finding Hodge’s opinion this inef- or credibility

the effect of as to the of a witness However, accused.”). ap- guilt claim. or as to the fective-assistance case, court pears prosecutor that the state intended hold did both in explicitly that, that no misconduct stating “absolutely as it found oc- that Fenn was believa- curred, object ble,” trial counsel’s failure to did but that Hodge “lying.” J.A. at (final satisfy performance prong not closing argument by 189 prosecu- tion). ineffective-assistance Strickland test. disagree with the Supreme

We state court’s As the explained Court that no Young, conclusion misconduct occurred. there separate are two harms that prosecutor First, It patently improper is for arise from such misconduct. “such credibility either to comment on the of a convey impression comments can express personal witness or to belief that presented jury, evidence not particular lying. is prosecutor, witness United known to the supports 1, 17-19, Young, States v. 470 charges against U.S. 105 the defendant and can 1038, (1985); 1 Berger, jeopardize S.Ct. 84 L.Ed.2d thus right the defendant’s to be 86-88, 295 (citing solely U.S. at 55 S.Ct. 629 tried on the basis of the evidence prosecutor’s suggesting statements presented jury.” Young, 470 U.S. 18, personal knowledge Second, that a witness was 105 S.Ct. prose- 1038. “the being truthful example egre as one opinion cutor’s carries with it imprima- misconduct); gious prosecutorial see also tur of the may Government and induce the (6th Bell, 635, jury Bates v. 402 F.3d 646 Cir. to trust judgment Government’s 2005) (“To certain, prosecutors can ar rather than its own view of the evidence.” record, gue 18-19, highlight the inconsisten Id. at 105 S.Ct. 1038. Both con- defense, cies or inadequacies of the implicated cerns are in this case. The forcefully assert reasonable inferences numerous statements on wit- But, from they put the evidence. can not credibility ness unsupported by any —often opinions forth their as to credibility justification of a rational other than assump- witness, defendant, guilt appropri of a or tion that guilty avoid —cannot capital punishment.”); ateness of suggesting jury United prosecutor that the Carroll, (6th 1380, States v. 26 F.3d 1389 knows something they do not.20 More- Cir.1994) (“We over, cannot the extent overstate because these statements to which disapprove of this sort of coupled were not with a more improper vouching by prosecutors.”); analysis detailed actually of the evidence Smith, 13, State v. trial, 14 Ohio St.3d 470 adduced at they convey an impres- (1984) (“It 883, N.E.2d improper they sion to the simply should an attorney express personal belief trust the judgment State’s that Fenn was previously We have indicated that it is not noted that the even the use of the words "I necessary prosecutor actually for the to use suggest” want to would not be sufficient to believe,” phrase, words "I similar prevent constituting a statement from im- for a improper statement to constitute com proper credibility comment on witness when See, credibility e.g., ment on the of witnesses. coupled that statement with a statement Bess, United States v. 593 F.2d 757 n. 10 question basically that the witness in was "is (6th Cir.1979) (quoting approval United telling the truth ... because she had no rea- Morris, (5th States v. 568 F.2d Cir. Krebs, son to lie.” United States v. 788 F.2d 1978) state, (noting attorney "may that an (6th Cir.1986); 1176-77 see also United prosecution's 'The telling witnesses are Canoll, 1380, 1387, States v. 26 F.3d truth,' prosecution's or 'I believe the wit (6th Cir.1994) Krebs). (discussing ”)). telling nesses are the truth' We have also

379 woman, a or she would be is battered and that the defendant’s witness a credible in out. No woman would ever be stuck non-credible, perjuri- if not witnesses were they if see relationship a battered could especially preju- is This misconduct ous.21 logically. themselves the extent to which given in this case dicial hours, Hodge’s to determination had waited 40 she told the jury’s the She truth, entirely hinged say sup- almost what she has to is guilt or innocence credibility Hodge and Fenn.22 evidence and all the ported medical on surrounding family. is not Hodge specifically We note you nothing. He has He has offered In out of context. taking these statements law-abiding, portray tried to himself as fact, attempted to bolster respectful, person. mild-mannered He immediately before credibility both Fenn’s anything but that. He is uncontrolla- his attack on immediately after ble; family living he’s not with the who pas- relevant credibility. The Hodge’s be; supposed he’s to he’s been kicked prosecutor’s the end of the sage —near fighting; for he has the out school likely when it is most argument, rebuttal with He is guts fight police to officers. jury begins to be remembered — be, and portrays not what he himself to why explanation of prosecutor’s lying is because he is to extricate immediately Hodge accuse not Fenn did what he’s done. Jane, having allegedly himself from raping despite absolutely Fenn is believa- Consuela in act: caught Hodge ble, family absolutely her believable. Albeit, could have told logically, she (final closing argument by him J.A at 188-89 family would have beaten added). jux- (emphases Such spot probably, prosecution) on the up right taposition comments But she didn’t. That would have told. suggest preponderance-of-the-evi- pattern attempting persuade seems to 21. standard, prosecutor's beyond-a- jury rely on the assessment of rather than dence n theevidence improper limited to the not required a crim- standard reasonable-doubt prose- credibility. The on witness comment challenge pro- inal case. does second definition of "reasonable cutor's definition, accordingly we priety of this rebuttal, oppor- with no doubt” —delivered in important time. More do not decide it this counter-argument by coun- tunity defense for however, strongly present purposes, it for sel—ties in with this second concern: suggests beyond-a-reasonable- to the operation. Say you go doc- an Take trusting representations made doubt means may happened have to some- tor—and this authority. example, by figures Such an family you're feeling pret- your one in —and instruction, magni- specific without a curative checkup, ty good you go and the but for give jury would fies our concern that says, We have die,” "You have a tumor. doctor improper weight prosecutorial comments out,” or, going get but "You're credibility. witness go a sec- even feel bad. You don’t says get opinion, ond doctor This, distinguishes pres- particular, 22. oper- thing. the risks of an same You know Young, v. 470 U.S. ent case from United States great, you not seen You feel ation. (1985). L.Ed.2d 1 Re- 105 S.Ct. you're going your thing but to have error, Young viewing plain Court in thing yanked body open cut and have this prosecutor's were that the comments found infection; Risk, anesthesia, possible out. reversal, warrant erroneous but did not hopeful. full of doubt as to You're improper be- light own of defense counsel’s there, thing's even in whether "overwhelming evidence” havior and the go ahead. S.Ct. guilt. Id. at the defendant's (final closing argument by prose- J.A. at 186 matter, cution). grave we have As an initial example propriety doubts about the of this —it only and Fenn can regard (closing argument by with J.A. at 159 prosecu prejudicial tion) effect of each added). exacerbate (emphases As Fenn had told statement. family each of her members that she saw Jane, Hodge rape these witnesses’ belief Credibility

ii. Comment on Witness rape that a had occurred was based almost Misrepresentation Combined with entirely on their belief that Fenn was tell of the Evidence ing them the truth when she told them she repeatedly prosecutor The —and had witnessed the act. Although Floncia that, incorrectly jury in or —informed Lovejoy Lovejoy and Barbara found blood they acquit Hodge, der to would have to in Jane’s underwear and observed what affirmatively that family conclude Fenn’s they allege was abnormal behavior Jane intentionally lying members were on the night question, jury was not This was a blatant misrep witness stand. required to conclude that either Floncia example, prosecutor resentation. For Lovejoy’s or early closing Lovejoy’s testimony in his initial Barbara argument: stated about these observations was untruthful in things support But there are what Instead, that, acquit Hodge. order to say, know, jury you Consuela has to truth, simply telling document needed determine that the testi you and unless decide that mony all about blood in Jane’s underwear was family, women including her Hodge’s guilt. sufficient establish from grand great grandmother great misrepresentations Such are themselves — liars, you aunt are absolute know she is unacceptable prosecutorial conduct. See truth, telling you the sup and she is Wainwright, Darden v. 477 U.S. 181— ported in what she said 40 hours later. (1986) 106 S.Ct. L.Ed.2d (closing argument by J.A. at 153-54 prose (noting that the court did not appro find it cution) added). (emphases The priate to overturn Darden’s conviction in a point to this near returned the end of his because, habeas proceeding despite the argument: initial closing prosecutor’s misconduct, other severe “the guilty, you To find him not have to find prosecutor’s argument did manipulate family Consuela Fenn her whole evidence, or misstate the impli nor did it liars, nothing and to believe in accused”) specific cate other rights of the you what heard from the Defense here. added). (emphasis you contrary What have to the of that is The comments also that of a doctor people wlm—three extended to the credibility of other wit unethically today, and I think testified nesses in the case. Most troubling are his you will know that’s the case. Him Omley, statements about Dr. which also it, denying family and a that barely completely misrepresent the doctor’s testi saying knows him comes here he’s not mony, while at guy, though that kind of the same time got accusing school for fighting, kicked out of defense “twisting and he counsel of ... prisoner. was a horrendous facts”:23 just

23. Defense counsel had stated please, the follow- carefully through look these medical ing closing argument: in his you records because have a number of them doctor, room, Omley, go you Dr. that will first who examined emergency evening, at the room won't testimony. [Jane] have to recall this defense) (em- found a one-half inch (closing argument by laceration and said J.A. at 172 finger added). no you, hand or marks. I phasis would ask Q. you there. does stop twist- Let me What says great this is a also He —and mean, print no hand mean? facts, too. what’s ing there Omley said on here? —Dr. going bruising A. we see lacerations or When [apparently He fingerprints. were children, anybody, we look for to defense coun- referring point at this imprints on because if people, hand sel, just closing argu- made who severely enough, it’s inflicted referring you [apparently told he ment] handprint can sometimes see a Omley] found there point to Dr. at people. bruise fingerprints. That’s handprints or Q. something you that would So report. Omley Dr. lie. You look at his perhaps would look for as indicative I asked handprints, there was but said thing opposed of an abusive as to a him if found bruises would be he type injury? natural fingers, the tension of consistent with A. That’s correct. and he notes bruises yeah, and he said Q. handprint, done hard And a if chest, supports which throughout enough, actually up could show de- family saying, which what where could see the outline of theory. And stroys injury the straddle thumbs, fingers or is that accurate? you’ll report, Dr. read Steiner’s accurate, A. sir. That’s these wrongfully has dealt with find he Q. par- none that on this as well. You issues found ticular victim? (final closing argument at 184-85 J.A. A. That’s correct. added). In his (emphases prosecution) Test.). however, (Omley Omley phy Dr. J.A. testimony, —the handprint issue on redirect returned to emergen in the who examined Jane sician examination: stated cy Joseph’s room at St. —neither nor did he handprint he saw a on Jane Q. you. Thank with bruises “consistent state he saw Now, pointed out that Nagy Mr. also (final fingers.” J.A. at 185 the tension of that was you did not see a bruise In by prosecution). closing argument being consistent with identified stead, fact he saw that the he testified handprint, is that correct? possi handprint preclude would not no correct. A. That’s grabbed by bility that Jane had been mean, that what Q. though, Does very fingertips statement someone’s —a grabbing you saw rules out someone finding of than an affirmative different fingertips? forcefully child the tension of fin “consistent with bruises mean, I did not rec- A. did not—I We Dr. Om- portion The relevant gers.” any handprints. ord testimony during defense ley’s begins cross-examination, when Dr. Om- counsel’s Q. But that’s a whole hand? record that

ley is asked to read from the a whole hand. Whether A. That’s (Dr. examining Omley) prepared after he somebody point physi- not at some 23, 1996: on December Jane child, spots ten little on the cally put say. I can’t on the anterior”— A. “Scratches noted no hand- Q. Okay. your finding So and that’s the front —“chest or would preclude does not shape, print of varied sides of abdomen ” argu- be the bare basis handprint grabbed she ivas not saying get issue, ment To severely around that he discounts Consuela’s fingertips? history. He tells you he’s position judge, he A. That’s correct. that, wouldn’t do and he tries to distance Test.). (Omley testimony J.A. at 407 This himself from the fact wrongfully that he shows that the statement that story. discounts her But we all know Omley handprints, “Dr. said there was from and his report he is him if I asked he found bruises that would her; judging ruling he is out her credi- fingers, be consistent with the tension of bility though out of the other side yeah, and he said and he notes bruises of his mouth says he is not. You (final chest,” throughout J.A. there, read that report. up He sat closing argument by prosecution), is clear- many times, claims, don’t know how ly disturbingly, prose- incorrect. More said, based on what Dr. McDavid there specific questioning Omley cutor’s of Dr. statements, were five and because there point suggests this that the statements, were five you should not knew that his during own later statements believe the sixth. That’s what say- he’s were, closing arguments least, very ing. just That’s not credible. He has a set of misrepresentations. serious Such conceded he did not have the informa- have, statements would be inexcusable even if you tion he can’t make that judg- prosecution just had not called good you, defense ment as wrong, and he is (accurate) description you counsel’s of Dr. Om- know that. He has not heard (final ley’s He, testimony everything you “a lie.” J.A. at 185 have heard. I think closing wrongfully, you argument prosecution); see also has told he’s never even defense). woman, heard of a (closing argument by J.A. at 172 battered he’s not position that, Together, to evaluate everyone the statements are indefensible. that comes into emergency his room disturbing Also are the gives story, an accurate there is never a Dr. credibility. statements about Steiner’s mistake the date. This is how he has generally These any assume the truth of manipulated the data appear that he statement made prosecution’s ex- is giving a medical opinion that should witnesses, pert Dr. accuse Steiner of permissible not be in court and isn’t acting wrongfully unethically, or even reliable. He pretending is to act within himself, perjuring statements he the confines of his field of practice when contradicting made testimony of the gives he opinion, but what he does prosecution’s expert witnesses. For exam- is, he chooses to discount whether Con- ple, in initial closing argument, his says (sic), suela there are therefore prosecutor devoted substantial time to crit- there is history, no therefore it is im- icizing Dr. (entirely Steiner’s proper) proper to Well, conclude child abuse. statement that he not in a position there were history, you could not rule testify credibility: as to Fenn’s out child abuse. You proba- cannot find Now, Steiner, Dr. finally, after bly abuse, child you but couldn’t rule it examination, hours of cross admitted out. But look at what doing he’s you eyewitness that if believe Consuela’s saying; both he report say his it’s you account then should Dr. believe injury. a straddle But he didn’t have a you McDavid and should rule this a history. Now he doesn’t need a history, rape, rape. and find this as a He con- which required by profession cedes that. diagnosis obtain a of an accidental strad- incident, particular Q. Prior to this everybody But he discounts injury. die madam, you had—had been abuse. history to find sex else’s use by Children Services investigated ethically? Noiv, do that can he how your chil- your conduct with about Dr. Jack- that’s what And He cannot. dren? v[e]in, And, in the same just said. son and, despite to this courtroom he came Right. A. she has seen—a McAliley saying nurse that, Q. approximately? When was being penetrat- young girl videotape of normal ed, 1000 times—a I think even I exactly, know know A. don’t in and he comes hymen, picture happened. it had was after and a an inch there can’t be tells Q. happened? After this fe- prepubescent of a penetration half hymenal damage. vaginally male without exactly— Right. A. I don’t know says that is Dr. a lie. Steiner That’s Fenn). (Test. at 363 Consuela J.A. knowledge that unethical, not the that is contrary was prosecutor’s statement yet But today in this field. they have with the plainly inconsistent here somebody you that. So telling at trial. presented themselves; it’s either perjured has Dr. McAliley, Dr. McDavid Nurse Argu- Derogatory Remarks b. Jackson, it’s Dr. Steiner. Bad ments Based on Character by pros- (closing argument at 156-158 J.A. attorney asserts that added). Hodge also ecution) entirely It was (emphases object the several failing to erred imply that prosecutor the improper for prose- by made the derogatory wit- comments expert between disagreement very At least (who, during closing argument. could professionals, cution as nesses disagree- clearly improper: legitimate professional of these are well have three ments) witnesses that one of those meant for a 23- certainly pass could [Hodge] him or herself. perjuring must be many I how he’s wonder year-old. drink, emancipation, of period in this Misrepresentation of

iii. Additional an adult. Evidence as argument, prosecutor In his rebuttal sup- of Unfortunately, [Hodge’s] idea misrepresentation another clear also made of my share getting himself is porting defense counsel’s to discredit in his effort my of income or share supplemental [a] closing argument: Security Supplemental family’s Social that Nagy

Mr. also said Consuela [I]ncome. by Services. investigated Children being yourself put like to would [H]ow trial. I don’t that in this I didn’t hear might run into place of someone from. don’t that came know where [Hodge] night? at unfairly why he feels he has know now, appar- reputation 160, (closing argument damage 180-81 at See J.A. ently citing, he does. without Again by prosecution). these state- discussing or even quoting, (final closing argument at J.A. 184 finding ments, court made state However, Fenn testified prosecution). occurred, assistance no ineffective investigated in fact been that she had prejudice relying on apparently time Services: Children 384 inquiry.24 position them

prong impartiality of the Strickland of and to exer- cise their in the guise discretion of an highly are These statements party.”). interested First, prosecutor’s improper. insinua drank Hodge regularly tion that alcohol agrees The dissent with our con himself off illegally by passing being as clusion that improp these statements were of twenty-one years age over claim that —a er, but disagrees with our ultimate conclu in way charged crime relates to the —is sion that applied the state court Strickland improper inappropriate empha an both as unreasonably. emphasize that We character,” Hodge’s alleged sis on “bad each instance prosecutorial of miscon Washington Hofbauer, v. 228 F.3d object duct—-and each failure to thereto— (6th Cir.2000), argument based isolation, must not be considered but in Berger, facts not evidence. 295 U.S. the context prosecution’s entire 86-89, 629; Martin, v. 55 S.Ct. Abela opening closing statement and argument, (6th Cir.2004); Smith, 380 F.3d suggested which repeatedly that the Second, prosecu N.E.2d at consider, guilt, could as evidence wheth suggestion Hodge’s tor’s sup “idea of Hodge er type person was the who porting get part himself’ was attempt would rape young child. For prosecutor’s family’s or the example, concluded his similarly Social Security income is flawed. opening promise statement prove Third, suggestion the prosecutor’s that the Hodge particular committed this jury try in the “put place [itself] act, but “one of those someone run into might [Hodge] people” who needed to have sex with chil night” impermissible is a version of dren. See 148 (opening J.A. at statement See, “golden argument.” e.g., City rule by prosecution). This formulation does Egeland, App.3d Cleveland v. 26 Ohio appear accidental, not to have been as the (1986) (“The 1383, 497 prose N.E.2d 1389 prosecutor repeated it at the conclusion of cutor properly jury cannot threaten the the portion initial his closing argument. of acquittal jeopardize would them (closing See J.A. at argument by 160 pros personally. arguments jurors Such ask the ecution). prosecu The conclusion of the to objectivity shed their and to assume the tion’s closing argument rebuttal continued (citations role of parties.”) interested omit theme, prejudicial but in a more and ted); Boop v. & R. Baltimore Ohio cf. way: more inaccurate Co., 171, 118 Ohio App. N.E.2d (Ohio (“This just says, It’s like the doctor “All of the Ct.App.1963) type of ar pieces gument, puzzle to the fit.” jurors By are put where the asked to themselves none plaintiff, anything, themselves in of them mean place is com the medi- monly cal findings by known ‘Golden Rule themselves Argu as the mean noth- and, ment’ objection being made, ing, upon eyewitness account means normally objectionable nothing, battering by considered in and means itself competent nothing. it you lump the reason consti But all these if tutes an appeal jury to things together abandon past and —his behavior 24. Specifically, arguments court held: state counsel's were not evidence. circumstances, We Under the prosecutor’s closing simply have reviewed the cannot arguments prosecutor’s and find that even absent conclude that the comments misconduct, possible prosecutorial jury prejudicial rose to the level of error. Further, would guilty. have I, found Hodge 2000 WL at *8. jury the trial court instruct did true) nothing, particulars the bill of as and jail at the mean conduct

and support that sexual proves finding to together, it all it sufficient you put but if occurred, testimony all other reasonable contact beyond case State’s only support Dr. in the case piecemeal presented it like went you And doubt do, Hodge. you or discount or rebut the of Fenn like would Steiner account it, suggest eyewitness its case. To “the the State can’t make parts of (closing ar- duty nothing,” re- J.A. at 189 logically, your mean[s] as But if dig by prosecution), but can somehow gument everything consider quires, proof beyond a reasonable promised, you’re going be converted as and look “lump[ing] with non- together” doubt guilty. he’s to know conduct, specific findings, medical abusive mild-mannered, he if he was Because (none remote- past behavior of which even jail. at the problem have that wouldn’t ly suggested pedoph- sexual misconduct or mild-mannered, wouldn’t If he he tendencies), se- jail iliac misconduct If he kicked out of school. have been factual verely misrepresents type have left domineering, would wasn’t jury required determination her, own he would him. If he didn’t whole, as a make. Taken the statement as something tried as ridiculous suggested jury that the could improperly while she was in the bath- this at home Hodge’s bad character consider controlling the But he is so tub. used finding of thumb on the scale in favor of a life, him around for his whole people guilt. anything he wants. can do today. thought. Until So he Object 2. Failure to (final closing argument

J.A. at 189-90 added). (emphasis This prosecution) Prong Performance a. incorrectly suggested statement the trial We conclude medi- consider several factors —the should object any aspect counsel’s failure account findings, eyewitness Fenn’s cal improper egregiously (and contrary), Hodge’s testimony to the objectively unrea- closing argument was violence, allegations domestic n Strickland, at 687- 466 U.S. sonable. See jail, at the Hodge’s disciplinary record Although we must be 104 S.Ct. “past generally— behavior” more Hodge’s scrutinizing an “highly deferential” when justify a individually to insufficient as each 689, 104 id. at attorney’s performance, verdict, to collectively sufficient guilty objectively an is not action S.Ct. words, if the In other require one. “might unless it be considered reasonable believe, a reasonable jury beyond did not (internal strategy.” quota trial Id. sound doubt, saw the Fenn’s statement that she omitted). rela Here, inquiry is tions our Hodge’s argued that rape, prosecution the do not tively straightforward, because we tip character should the scale. bad be “might the this failure meets believe nature fundamentally the This misstates strategy” sound trial test. considered jury make. The finding the had to object to in to decision: Decisions not jury only had to make one real (and by the already heard ac- admissible evidence being Fenn was truthful whether curate) many can in be classified jury she saw eases when she stated that call to avoid strategy evi- of a deliberate part Jane. As the medical Hodge penetrate that evidence. jury’s ac- attention to ing from the (excluding obtained dence Nonetheless, not them- such are reports concerns allegations police the cepting preclude Hodge type jury a conclusion of was the person selves sufficient of the running night; as the court should fear at performance, deficient must into and generally argued jury still whether the decision the should con- consider object objectively vict the his Hodge was reasonable. See basis of bad charac- Strickland, 688, 104 at 466 U.S. S.Ct. 2052. ter. object By contrast, a failure to to com exception of With of certain the bad- or credibility ments on derogatory witness arguments, character these statements are is much by prosecutor less statements Hodge’s harmful precisely case because susceptible argument that it should false, they unsupported, misleading, are strategy. reasonable trial considered rather than are they because true but (“[Ac Washington, 228 F.3d at 706 Cf. As inadmissible. to the bad-character ar- cepting strategy trial proper as a law guments, they sufficiently egregious were yer’s doubts over the of ob effectiveness warrant, minimum, objection an at

jections curative and instructions would the following bench of conclusion preclude in every ineffectiveness claims prosecution’s argument. rebuttal We are this, case such as no matter how outra professional unable to articulate a sound geous prosecutorial might misconduct why object reason did defense counsel be.”).25 misconduct, pattern repeated of accordingly we review, To must conclude that coun- accused the object sel’s failure to was “outside Hodge “lying”; of stated that the com- the wide range “absolutely professionally competent plaining witness was believa- assis- Strickland, ble”; tance.” Dr. accused Steiner U.S. testifying S.Ct. Accordingly, performance “wrongfully” “unethically,” telling lie”; prong of “a the Strickland stated defense counsel was ineffectiveness lie”; test is satisfied. telling severely misrepresented “a We must now determine Hodge whether Omley, prejudiced by of Dr. examining his objectively counsel’s physician; (incorrectly) stated that a unreasonable find- actions. ing Hodge in favor required finding Prejudice Prong b. great-grandmother great- that Fenn’s liars”; aunt “absolute suggested were Hodge We conclude that prej (without evidence) any Hodge was a udiced myriad counsel’s failures to drinker; frequent underage object prosecutor’s insinuated to misconduct. (without evidence) physical wanted The lack of evidence confirming to get part family’s activity sexual meant that this was neces checks; Security suggested Social sarily a close case at the trial level. The "interruptions arguments, 25. Although argument, closing calling ei- each avoids the at- opposing statement, ther the presiding counsel or any improper tention of the judge, approached are matters to be judge cautious- and opportunity allows the trial the to 13, 1038, ly," Young, or, 470 U.S. at appropriate 105 S.Ct. make an curative instruction objection id.; this necessary, does not mean that no should declare a mistrial. See minimum, attorney ever be At a an Washington, made. 228 F.3d at 706 n. 10. We em- however, opposing who phasize, believes that counsel has attorney’s made that if an mis- closing arguments improper request sufficiently egregious, should conduct is entirely it is at appropriate bench the judge conference conclusion of the the interrupt trial "to him,” opposing argument, where or argument she can the and Young, admonish 13, lodge objection appropriate an out the (citing hear- 470 U.S. at 105 S.Ct. 1038 Viereck 13-14, ing States, 236, 248, jury. Id. at the S.Ct. v. 105 1038. United 318 U.S. 63 S.Ct. approach preserves (1943)). Such continuity the 87 L.Ed. 734

387 prosecutor’s to the jury’s pletely on the failed address depended primarily result explicit personal statement of his belief Hodge of whether determination —who Hodge lying and that Fenn was in his the stand own defense'—was took I, telling Hodge the truth. See 2000 WL his ex-girl credible than more less (final *7; 1533917, at see also J.A. at 189 friend, Fenn, him.26 against testified who closing argument by prosecution). The situation, object a failure to to In such similarly court to address prose- failed the to cast misconduct calculated prosecutorial improper comments on credibil- cutor’s the in to Hodge negative light or bolster Instead, ity of other state witnesses. the credibility particularly likely to Fenn’s attempted court these explain away to Strickland, verdict. jury’s affect See veracity by clear comments on witness 2052; 695-96, at 104 466 U.S. S.Ct. Wash (1) they were “in the stating made 705; ington, 228 F.3d at see also Martin v. context of contrasting defense and (6th Cir.1993) Parker, 11 616-17 F.3d I, witnesses,” prosecution Hodge 2000 WL importance of (noting heightened appropri (2) *7; prosecutor at “[t]he prosecutorial ate conduct sexual abuse personal knowledge did not claim have cases). Accordingly, “there is a reason witness’s truthfulness.” Id. Both that, probability but for counsel’s un able explanations lack merit. errors, pro of the professional result prosecutor’s fact state- ceeding would been different.” ments were made in the context of con- Strickland, 694, 104 466 U.S. S.Ct. 2052. trasting prosecution defense nothing does witnesses reduce Inquiry Application c. Unreasonable fact, impropriety of these statements —in that counsel Having concluded they it is qualify one reasons object failing was ineffective prejudicial. did Although prosecutorial misconduct at issue “I have explicitly say personal case, we now determine whether the must knowledge that of these witnesses is one simply court incor state decision “was truth,” lying telling and one is unreasonable, rect, objectively but was many of his comments'—such as his required meeting high threshold lying” “is statement by Washington, the AEDPA.” F.3d believable,” absolutely J.A. that Fenn “is 703; 2254(d); § see also U.S.C. (final prose- closing argument by at 189 362, 412-413, Taylor, Williams v. U.S. strong cution) carry implication — (2000). 1495, 146 L.Ed.2d 389 120 S.Ct. they personal are made from that the state court’s decision We conclude Moreover, court knowledge. the state objectively unreasonable. explain why Supreme two failed to regard preclude prose- In precedents comments Court which credibility witness credibility, court eom- cutorial comment on on witness the state bootstrap way to particularly court'—to its We we are disturbed the trial note that However, expert testimony certainty. the State’s introduction of as we conclude scientific (1) improperly relying non-probative docu- object egre- counsel’s failure trial (the reports par- police ments ticulars) and the bill gious requires us to prosecutorial misconduct (2) complaining statements conviction, Hodge's not de- need reverse victim’s witness Fenn contained in the medi- cide of such blatant- whether introduction records, cal bolster the of that support a ly expert improper would complaining This strikes us as same witness. § 2254 grant corpus relief in a of habeas essentially allowing testimo- Fenn’s contested proceeding. key ny credibility was the of which issue —the 388 Young, case. apply inquiry, concluding any

did not this See that “even absent 1038, 1, misconduct, 84 L.Ed.2d possible prosecutorial 470 105 S.Ct. jury U.S. the 1; 78, 629, 55 Berger, 295 U.S. S.Ct. Hodge guilty.” would have found Id. at L.Ed. 1314. *8. state court made no effort to ex- conclusion, plain this and we are unable to In to regard prosecutor’s improper the explanation conceive a reasonable for credibility, comments on we are witness court’s conclusion. As discussed unable to draw a relevant distinction be- above, derogatory and bad- statements on veracity tween the comments witness arguments character are particularly likely by and prohibited Young Berger and the prejudicial case, one, to be in a such as at issue in this case.27 to the comments As depending entirely almost on a determina- statements, prosecutor’s misleading we tion whether defendant an accus- the to note that both the false statement the a preju- er is more credible witness. The Omley’s testimony of Dr. the content prong requires dice of the Strickland test that disbelieving false statement Fenn only probability,” “reasonable Strick- require disbelieving great- would land, 2052, that, 466 U.S. at 104 S.Ct. grandmother to great-aunt went the a proper objection lodged, been the key issue the case—whether to Believe jury would have had reasonable doubt as Hodge. respect pros- Fenn or With Hodge’s guilt. to derogatory ecutor’s comments bad- arguments, they character we note that together, Taken a trial where the completely unsupported by were each the depended result entirely almost on the totally the case or evidence irrelevant to jury’s determination as to whether the involved. issues credible, or Fenn was more the failure to As to the derogatory object re- prej- these comments highly arguments, marks and character-based udicial. Accordingly, we conclude appeared state court to concede that these was for unreasonable28 court state I, improper. Hodge were 2000 WL conclude that there was no reasonable However, 1533917, at *8. probability that, court relied objections had proper prejudice prong lodged Strickland been (forcing the prosecutor incorrect, 27. unpersuaded We are also merely the trial than is driven the ex- instructions, generic jury court's made which tremely credibility close nature of the deter- specific prosecution's reference to mis- key mination that was the issue in this case. conduct, dispel any preju- were sufficient basis, Had there been other than Fenn's dice from these statements. See at 748 J.A. eyewitness testimony, upon which reason- ("I closing want remind state- jury Hodge guilty, able could have found lawyers They ments are not evidence. would be more hesitant to conclude opportunity are lawyer each to summa- application state court’s of Strickland was un- they rize what believe evidence However, requires reasonable. as Strickland supports respective how it position.'') their reversal perform- when counsel’s deficient (given arguments); closing before J.A. that, probability ance results in "a reasonable ("[T]he opening argu- closing statements and errors, absent the would factfinder designed ments of Counsel are to assist had a respecting guilt,” reasonable doubt evidence.”) they (given are not clos- after Strickland, U.S. 104 S.Ct. ("The ing arguments); J.A. at 754 is the inquiry necessarily our habeas more facts, only judge of the the credibility of the searching in the object context of a failure witnesses, evidence.”) weight and the prosecutorial affecting key misconduct (given closing arguments). after credibility determination. appli- that the state Our conclusion court's unreasonable, cation of Strickland was rather arguments improper his repeating avoid to the court need suggesting and Although Consuela’s or the Defendant’s. instructions), curative specific you you partici- some of have said have Hodge’s testimony credited

would until pated relationships, in abusive to doubt as to create a reasonable enough dynamics understand the of a battered re- might Although be Hodge’s guilt. never to under- lationship you will be able for a application of Strickland reasonable happened stand here. But remem- what hold such as court to that statements ber, her; state this he Consuela said man beats in a case involv- prejudicial her; these were choked he held a over her pillow out; un- he guilt, pass evidence of are face until she about to ing stronger was held in her keys, captive took her her the state court’s deci- to conclude that able house; own she tried to lock him when application of was reasonable sion out he in. She that she could broke felt case. The this individual Strickland of her escape guy. from this As one declining grant to court erred district said, she lost her self-esteem. relatives claim of ineffec- Hodge’s on habeas relief it’s The domi- happens, When that over. of trial counsel. tive assistance nator He can her whether wins. control he’s there or not. III. CONCLUSION find, will Although, you as the Hodge’s trial counsel was We hold out, people type this of bears with constitutionally failing to ob- ineffective anyone possessive don’t want personality misconduct, ject egregious prosecutorial woman; to have contact with this any this determination to and that the state court’s want them possession. They is their don’t contrary applica- was unreasonable them, they’re jealous very out without and clearly Supreme Court tion of established violent, physically they manipulate, RE- The decision below is precedent. he did. and that’s what VERSED, REMANDED case is He And into house. he moved the district court with instructions live not down here to with his relatives like corpus, giving writ of habeas a conditional fact, In his relatives dis- he claims. own days retry ninety of Ohio the State Hodge or him Sandra Jackson pute when custody, him from Hodge or release says he at Consuela’s Jackson GRANTED. time, majority contrary of most—the testimony. You’ll find most own APPENDIX him and contradict- contradicted witnesses ed each other. Closing Jury Made to the [Initial tell, deny it. Consuela didn’t she didn’t Ohio]29 Behalf of the State beaten, she was afraid. physically She was page argument missing from [First it, has, the first admit She would be .... have sex attempting to record] conduct, didn’t that she is ashamed could a child three-year-old child. What have. child and she should protect her it has. There is an adult male? offer But hours, came But within 40 she forward to it. logic police, who called the another relative life, hounded, if logic being is often not a threat There either under the came down your happened, of view. Fortu- point at it from which is what look there told what she saw. lives like and she nately, I doubt of our are added). (emphases J.A. at 152-60 Now, again time time she you’ll hear and consistent child abuse. is no There history any type of her and give falling down five statements. She didn’t five gave hurting herself. Defendant himself thing told the same statements. She he, admits that Consuela Fenn and times, five and then on the 40th maybe in only three children were the people about, truth, hour, she told the whole which happened party. house. It before the He entirely what is in consistent with she the— responsible has to or the party, said she did. that; There is no testimony mother. things support But there are that what Defendant go didn’t that far. Or know, that, say, you has to docu- Consuela happen it had at the no- party, which truth, telling she is and ment body saw, and the complain. child did not you decide that all the women unless But don’t forget, saying, now she’s grand— family, including her her from “Daddy my going Demarkus is to cut hair great great are ab- grandmother and aunt afraid of probably off.” She’s him. You liars, you telling you solute know she is saw that when she in came the courtroom. in supported the truth and she is what she blood in There is as a underwear JpOhours said later. result of this wound that is consistent with all, Lovejoy First of both Floncia and a sexual assault. And when Consuela was Lovejoy party, Barbara attended this and brought back to injury view the for the they change saw a distinct in And [Jane]. time, first it is uncontradicted that she change is something that all the doc- out, “I blurted didn’t know it was this mention in all the report, tors their doctors bad,” did, which demonstrates that she well, to on I testified don’t fact, prior stand — have some knowledge report, think Dr. put Steiner happened something daughter, to her and mention changes he did stand. And, supports her statement. im- more change, longer And she did you she was no portantly, injuries which are outgoing Something happened. fingertips child. consistent with chest. about her get injuries She did not those as a clung grandmother. She to her result falling genitalia on her straddle-type They obviously this time knew about her position. going great mother was not her a afford Now, is not only Consuela one that protection, they deal of the deci- made tells man battered her home, sion to take her going home. When have, You again, Lovejoy, vicious. Floncia that, “Daddy she made the statement De- Lovejoy, that, Barbara and in addition to hair,” is going my markus to cut off Eisom, says dominating, Valerie he is he threatened her. And he threatened intimidating, controlled her. Whether going her. She told he’s to cut her hair Floncia, he was or not. there she off. say What did Floncia when she afraid to tell. What do have to back combed her hair and of it bunches came testimony up? their You have his entire hair, already out? He pulled her and he jail Somebody record. un- going pull told he’ll cut the rest out or it off. doubtedly up stand here say that’s not injuries head, said, She had to her being so bad County for for a Jail hair,” “Daddy going my Markus is to cut year. dispute that it is he is bad. If falling and the hair is out. willing to intimidate officers, corrections home, Shortly arriving after at her Flon- officers, police assault going what’s he Lovejoy Fenn, who, cia finds that she an injury has do to the likes Consuela reason, gives room go emergency some into his an accurate can’t out whatever for story, there is never a in the date. attention mistake her needs and reason for fulfill manipulated how data This is he has anything better than company with appear he is giving that a medical that. opinion permissible that not be should get out women are never able Some pretending and reliable. He court isn’t is stay just relationships. They of these to act within the his confines field of of there, again they come and time and time gives opinion, when he but practice this intervention, court, despite police all the is, he he what does chooses to discount say, drop charges,” “I and want are, says there- whether Consuela there though they’ve visibly been assaulted. even history, is it fore there therefore is they until they’re do this even- Sometimes Well,.if improper to child conclude abuse. of They get never out tually murdered. history, you rule there were no could not if even relationship. people, And some probably child You find out abuse. cannot out, go, can’t let and kill them they’re abuse, you child couldn’t rule out. getting out. saying; look at he’s doing But what and Steiner, Now, finally, after even Dr. report say he and in a straddle both his it’s examination, that hours of cross admitted injury. history. But he didn’t have a eyewitness ac- you if believe Consuela’s he a which is history, Now doesn’t need you believe Dr. McDavid count then should required by profession obtain a his a and find you rape, should rule this and injury. diagnosis an accidental straddle rape. a concedes that. this as He everybody But he use of discounts else’s a history to find sex abuse. issue, get that he Stein- [Dr. To around history. severely discounts Consuela’s er] Now, ethically do that ? He how can he judge, you position not in a He tells he’s just And cannot. that’s what Dr. Jackson that, do and he tries to dis- he wouldn’t v[e]in, he came to said. And the same wrong- that he and, tance McAli- despite this courtroom Nurse himself from fact story. all know fully discounts her But we ley saying videotape has seen—a a he is report his and his I even young girl being penetrated, from think her; hy- ruling picture he out credibili- of the judging is her 1000 times—a normal men, though you he in and tells there can’t out the other side comes ty penetration inch half of a that be an and a says he he is not. You read mouth vaginally without there, prepubescent female I up He sat don’t know how report. That’s a Dr. hymenal damage. lie. Stein- times, claims, Dr. many based on what and unethical, says that is not the er that said, statements, were McDavid there five knowledge they today in have this statements, five and because there were yet telling that. you field. But he is So you That’s should not believe sixth. themselves; somebody perjured has here saying. just what he’s That’s not credible. McAliley, either Nurse Dr. McDavid it’s the infor- He has conceded he did have Jackson, Dr. Dr. or it’s Steiner. have, judg- you mation he can’t make that wrong, and he good you, ment as argument I haven’t heard every- that. you know He has heard place all would over the there be blood He, I wrong- child, have thing heard. think or 12 young adult has with a sex courtroom, fully, has told he’s never even heard years. had one before woman, not in I lost I was not position a battered he’s a trial because that, everyone ready today. I was that comes to meet it like evaluate attempting to They purchase people three-year- ver- can have sex are —he doubt, [Jane], creating child. He purchasing raped dict old her mother her, put is not saw it. He her in testifying doubt. But he within the battered position where knowledge sum and with- she had no self-esteem that substance do You can could whatever he wanted with all of vaginal the field. inter- possessions, unfortunately in- hymenal injuries. course without Howev- er, case, cluded to tell him that [Jane]. in Someone has saying we’re not there is ride, he’s at the end of his free vaginal intercourse. Dr. Steiner Even him, apply going laws do to and he’s to be you penetration conceded could have held accountable. given you The State has introitus, vagina area before the to Judge give the facts do that. will starts, female, penis is inside of a you law. guilty. Return a verdict of young girl, actually penetrating but not state, vagina, and in this as Dr. Steiner Closing Argument Final Made admits, even penetration, slight, however Jury of Behalf enough. is the State of Ohio30 guilty, you To him not to have find find you. Thank that Consuela Fenn and her family whole I liars, today heard several times have to be nothing and to believe juvenile. the Defendant is a He’s been you what from heard the Defense here. portrayed as 16-year-old who’s now you to contrary What have of that is a advantage been taken of by Consuela Fenn doctor people unethically who—three have 23 at thing who was the time. One is and I today, you think know will testified A legal obvious: determination has been it, that’s Him denying the case. and a juvenile. that he is made not He should family barely knows him comes juvenile not answer as a because he’s sit- saying here not that guy, he’s kind of ting in adult here court. though got he kicked out school for of fighting, and he toas a prison- horrendous thing, For another he’s on his own er. see, He knows bounds. You can Ohio at age State of of 16 without unfortunately, family, from his has nev- he parental supervision necessary. He’s been er responsible been held anything. kicked out of school. He has been able to for Unfortunately, his idea him- supporting an maintain adult relationship sexual of getting my is share supplemental 23-year-old self who’s now to blame for par- of income or my family’s share Social [a] ticipating this even she though of had—he Security Supplemental [Ifncome. He lied her. to Look at him. Is that a 16- world, reason, thinks the for some owes year-old? juvenile. That is not a him a good time. Unfortunately, got he Nagy you yourself put Mr. asks to in the enough bold three-year- to extend that to a place an person might of innocent who old in community, our against and that’s accused, which I think improper because the law. That’s crime. you identify cannot with either one of you think consider the evidence you But these tables. how would like to today you and do not pit into the put yourself place in the someone that fall purchased doubt, you’re find going to the might run into him night? juve- As a case, State has overwhelming juvenile and He is a only, nile? in age and no is, reason, [he] for way, whatever one those shape other or form. added). (emphases J.A. at 180-90 away until person’s learner I self-esteem dwindles a sloiv think say

To he is lonely and cannot think bereft your insult to intel- be considered an may logically herself. have done well in may He ligence.

school, everybody it’s apparently end, only It’s when achieve that learn to read or that he didn’t else’s time, through passage and first fault write, by fulfilling his. do that her love and needs for security, helping for some and for sort life he’s lead. He But look family, to and washing her raise her managed He’s anything. want for doesn’t kids, clothing and after her he sucks drive, always manages have a car he in, being nice, slowly aas result of he to, wants he’s go whatever states begins turns And he and he abuse her. money managed from what- always begins just till to see how much shell take source, he an adult sexual rela- ever has finally point he he real- reaches where tionship. Depending you on which relative her, anything he he or izes can do wants to believe, hard-working person he’s a either car, take, can anything he her he she owns everybody, liked or sits at who was put can in her dog a house she doesn’t all on his butt and watches videos home limited party, want. Even for a he can day. food, only take her can take of he her set getting he

He is not ineffective what keys, family he not can make her see her Now, a say [sic] to. to Consuela wants there, when he can limit contact he’s advantage him has taken of Fenn somehow world, with her to the outside he can beat be with some kind of charged or should her and her to he’s force conceal what He, effect, in owns he supported by I think done. her. When crime is not point, may just that gets enough bold he case, certainly this evidence bold to walk the hall and enough be across sense. common possessions. take the rest of her Either testimony that Her uncontradicted is hurt truly charge her is and to show he her she lied—he lied to about when her, pervert. a It or he is doesn’t because pass certainly And he could a age. for But that’s happened matter what which. 23-year-old. many I wonder how he’s time, destroyed over a period drink, emancipa- period had to in this self-esteem. tion, as an adult. Now, makes Nagy [defense counsel] Mr. just Nagy Attorney And as I predicted, family light of the fact—or chastises you logic to this situa- apply has asked open wide saying ripped the child infer a mother would never tion and that Well, a only there’s half-inch cut. because this, or that if she did see it that tolerate vagina in a is a half-inch cut two-inch logically would tell at first avail- she you if pretty big. And look at the —obvi- also able moment. And he discusses than a ously bigger is much opening this and at one time you guy that she loved this be, Omley three-year-old Dr. would but marry him. wanted the size proportionately tried to draw cut, halfway, and it extends almost Well, dynamic those parts are way lengthwise across least third of relationship. woman in an abusive battered Now, not be might that vagina. her little start abusive. relationship doesn’t open. it’s say too unfair to that wide progression, where the dominator’s It’s fact, They met progressively keep harping are more needs also is a that wrongfully, that this statement on a as the daily more basis submissive adopted, abuse Dr. report. Omley Consuela Fenn there was hand- said 21st and not 22nd. prints, occurred on the asked him if he found bruises A It’s one someone else. with the line written would consistent tension Nagy fingers, social worker. Mr. did not show this and he and he yeah, if in misspoke this one came and on this But I would like to take minute or two yet you one time. But are offered this just to delve into that. Let’s talk about evidence, document without it ever be- house, buying a Nagy like Mr. said. I her, ing that shown to this is one these my I bought remember when first house you statements that should cause to disbe- wife, sat, my budgeted, with we we we say, lieve what has to and she when budgeted, calculated, we we if wondered says it, eyewitnessed this was though even make payment, could could we Now, never her. have to you shown to fraught afford this? The decision was with to, you decide if what that amounts but doubt, go but we decided we’d ahead and document, look at will you the same see going it; we were to chance we were firm- the dates in places. are correct other ly leery convinced but very doing it. Mr. Nagy being that Consuela says operation. an Say you go Take investigated I by Children Services. doctor—and may happened this have to didn’t hear that in this trial. I don’t your in you’re someone family feel- —and know were came I don’t know from. ing pretty good you but go a checkup, why he has unfairly damage he feels says, and the doctor “You have a tumor. now, her reputation apparently but he out,” get or, We have “You’re going to does. die,” you but don’t go even feel bad. You He- says also this is a great twist- to a opinion, second doctor to an get he —and ing facts, mean, I too. going says what's thing. the same You know the risks Omley on here?—Dr. said there were no operation. great, you You feel have fingerprints. [apparently He referring at thing not seen this you’re going but point counsel, this just to defense your body who have open cut and have this closing argument] you made his Risk, anesthesia, told he thing yanked out. possi- referring [apparently point infection; at this to Dr. ble hopeful. You’re full of Omley] handprints found there was or fin- doubt as to whether thing’s even in gerprints. there, a lie. you That’s You look go ahead. him, hearing manipulated every step and controlled

Now, and her looking car; point; at this he owns her he owns Consuela, evidence, and seeing and daughter, her now he owns her. testify everybody seeing family her and together, fit are all the facts about He that he her [Jane]. testified dressed happened? finally this you convinced you going get Do think he’s this woman But Is doubt? Sure. think so. there some just up there^—that he beat so she wouldn’t Fenn doubt. Consuela it’s not reasonable tell—with this child after she’s been raping daugh- her, in on man her one caught? walked He’s the that dressed up there, he’s one that went he’s ter. anywhere be- going let her near her getting this informa- Nagy Mr. is Where cause to freak out tell. He going she’s from, you speculate wants tion it; handled wanted to calm her down. he can’t— she is so small because opportunity go up did She not have her her lay upon could no daughter. and tend to her mouth, her I don’t legs open cover Albeit, logically, she could have told and possi- all it’s physically know. We know right family up would have beaten him doctor, only ques- time that ble. if spot probably, she would asked, yes, it was possible. tion was said That told. But she didn’t. battered that. yet persists But woman, would be No woman or she out. Fenn is a battered and beaten Consuela stuck in a relation- would ever be battered said, they As don’t— woman. Dr. Jackson ship logically. see they could themselves report come always don’t people hours, She had waited 40 she told very long things for a time. She these truth, to say supported what she has hours, though forward came within evidence and all the surround- medical him. He con- she was scared to death ing family. actions day. her to this His demand trols you He He has nothing. has offered His de- that she come to court. actions law-abiding, as tried to himself portray that she to suffer this humilia- mand has respectful, person. mild-mannered He is child. She failing tion for her did love uncontrollable; is that. He anything but him, relationship, she was in an abusive he’s living family not with the who he’s away. not tell That does not right she did be; been out supposed he’s kicked of you a liar consider all the make her when fight he has fighting; guts school for it, her go factors that with what other He what he police is not with officers. grandmother and aunt observed. great be, and because portrays himself to that is Now, If history thing. is one Consuela what lying he is to extricate himself from absolutely lying about this it Fenn was he’s done. story gave if she this nothing, would mean believable, absolutely is Consuela Fenn injury and there wasn’t an consistent absolutely It’s family her believable. out, up. it “I don’t it to back blurted She just says, pieces “All of the like the doctor know.” telling everybody. It bad was that By none of puzzle fit.” themselves uncontradicted, knows And that’s she findings anything, the medical them mean something happened. eyewit- by nothing, themselves mean battering Nagy suggests nothing, asks—Mr. it would He ness account means you lump But all only logical up nothing. for her. itself goes care means if be- together past Well, things This has these and —his logical. that’s not so man of may [A] federal habeas court not issue simply the writ because that court con- jail conduct at the mean havior and noth- in independent judgment cludes its ing, put together, proves it all you if applied relevant state-court decision beyond a reasonable doubt. State’s case clearly established federal law errone- it like Dr. you piecemeal And if Steiner Rather, ously incorrectly. or appli- do, parts or you would like discount cation also must be unreasonable. it, can’t make case. its But if State 411, 120 Id. at point S.Ct. 1495. this From your duty requires, logically, as con- on, my opinion diverges majority. from the look everything dig sider majority The finds ineffective assistance promised, going to know he’s you’re guilty. failing object during counsel’s closing mild-mannered, he were Because he arguments two types of statements jail. at the problem wouldn’t have that If (1) the prosecutor: expressions personal mild-mannered, he was he wouldn’t have veracity witnesses, beliefs as to the been out he kicked school. wasn’t If (2) derogatory remarks about the defen- domineering, she would have him. If left dant. In first category, majority her, he didn’t own he would have tried finds fault with the that Hodge statements this something as ridiculous as at home “lying to extricate himself from what But while she was the bathtub. he is so he’s done” “Consuela Fenn is controlling people used to him around believable, absolutely family is abso- life, for he can anything his whole do lutely believable.” wants. On question, Ap- Ohio Court of thought. today. So he Until peals was correct. contrasting prosecu- the witnesses for the SILER, Judge, dissenting. Circuit tion and the defense. They were not think do not that the Ohio Court of personal statements of prose- belief. The Appeals unreasonably applied clearly es cutor say, did “I lying” know ishe Supreme precedent tablished Court under “I know Fenn is truthful.” These state- 2254(d)(1). AEDPA, § U.S.C. The ma rebuttal, ments also came after defense correctly jority stated standard suggested counsel had that the whole case ineffective assistance counsel rested on credibility of Fenn’s testimo- clearly v. established Strickland Wash ny. 668, ington, 2052, 466 U.S. 104 S.Ct. 80 The majority is apparently by offended (1984), L.Ed.2d 674 and that the Ohio any lying truth references or the in the appropriately Court of Appeals chose to summation the by prosecution. It seems apply when it Strickland denied relief in to be suggesting case, that in a close the

this in appeal case on direct State v. use of those words calls for a conclusion of 98CA007056, Hodge, No. 2000 WL 1533917 ineffectiveness when counsel does not ob- (Ohio 2000) 18, curiam) (per Oct. Ct.App. ject thereto. (unpublished). For authority, cites, its majority the in- majority correctly quotes

The also the alia, ter Young, United States v. 470 U.S. application of the 1, standard under 28 17-19, 1038, 105 S.Ct. 84 L.Ed.2d 1 2254(d)(1) § U.S.C. from Tay- (1985), Williams v. States, Berger v. United 295 lor, 362, 412-13, 1495, 529 120 S.Ct. 78, 86-88, U.S. 629, U.S. 55 S.Ct. L.Ed. 79 1314 (2000). (1935). 146 suggest L.Ed.2d 389 we add But the in each language shows from opinion that: prosecutor’s personal the in a wit- beliefs

397 instance, Young, improper in be reversed because of the con- testimony. For ness’s jury was prosecutor.” the that he of the Id. concluded prosecutor “told duct We the ” the ‘personal impressions’ his the In giving misconduct was harmless. Id. fraud. contrast, to commit a defendant intended in found Carroll that the er- 17, 470 105 Young, harmless, U.S. S.Ct. although not “impro- ror was the found Supreme no reversible The Court Carroll, flagrant.” was not 26 F.3d priety error, sug- prosecutor because the was course, Of all of cited at 1390. these cases relying informa- “that he was gesting majority appeal the were on direct at tri- presented tion outside the evidence supervisory powers the court. under of our Moreover, 19, Id. at 105 S.Ct. 1038. al.” case, contrast, in This comes as a habeas argued Berger, prosecutor the his belief requires corpus petition ap- us to knowl- suggested personal he had when he proach required it as under AEDPA. witness, Goldstein, edge of what a Goldie also v. majority The cites to State 295 U.S. Berger, knew when she testified. Smith, 13, 883, 14 Ohio St.3d 470 N.E.2d 87-88, sug- 55 629. There is S.Ct. (Ohio 1984) curiam), (per 885 the prosecutor herein that the gestion express personal his could knowledge when said that inside opinion credibility or to the belief as a liar and that Fenn was believable. of the But guilt witnesses accused. case, successfully prose- argue To Appeals proceed the Ohio Court of in this jury how find must show the it would cutor knew of ing that decision when it followed accused, and con- of the he must guilt 275, 650 Mundy, App.3d v. 99 Ohio State testimony with that trast the defendant’s (1994), citing 520 State v. N.E.2d Fenn, only eyewitness. prose- The Price, 60 N.E.2d 772 Ohio St.2d 398 argument had to an cution make (1979), found, Mundy, that the vein, required jury conviction person prosecution expressing was not its may It not have been Hodge. disbelieve opinion credibility al about the of the wit Fenn in order to required have believed nesses. Hodge guilty, find because there was some argument but de- testimony, majority corroboration to her The criticizes argu- jury a lot counsel directed of his that the prosecution suggesting fense against credibility. family ment all would have to find that liars, in to ac- would be order witnesses majority of United cites cases obviously exaggeration. That quit. Carroll, 1380, 1387, v. F.3d States However, in this case was intelli- (6th Krebs, Cir.1994), and United States v. enough gent to know most of (6th Cir.1986). F.2d 1176-77 testimony. evidence came down Fenn’s language by prose- criticizes Krebs argu- in his closing Even defense counsel “I that in suggest cutor that want to is, again, ment stated: “Mr. Rosenbaum telling trial witness, correct, it to comes down one had to Basically, .... no reason truth to Fenn.” able Krebs, Connie Defense counsel was Krebs, In F.2d 1176. lie.” 788 prosecution the to show advantage take of objected the state- defense counsel to not that some of the other was ments, court not ad- but the district did “If went on state: that material. He to reasoning the it would jury, monish that Fenn, witness, Connie believed “cause additional harm.” Id. at Nevertheless, daughter, raping that she saw him that “in exercise we said you now knowing things to all other supervisory powers,” our we had these cetera, her, credibility, about et whether the conviction “should know determine 398 find yep, you Hodge

then must Demarkus The Court of Appeals Ohio found that the guilty.” few in There are cases which one fair trial was and that in the absence part closing would not find some of a misconduct, possible of any prosecutorial objectionable, argument in especially to be jury Hodge guilty would have found involving rape a volatile trial of an anyway. It also gave weight some infant. jury trial court’s instructions to the majority The finds assis- also ineffective counsel’s statements were not evidence. by counsel at failing tance defense trial in Nevertheless, the issues before this court object derogatory by to to certain remarks are not whether the committed I prosecution. believe that the three misconduct and whether the trial court by quoted majority remarks im- were The erred. issues are whether defense part, in proper, at least so the trial court counsel under ineffective stan- objection should have an sustained dards Strickland whether the Ohio them, objections been made. of Appeals unreasonably Court applied The that Hodge pass statement could Strickland this case. twenty-three-year-old for a argu- is a valid heavy carries a proof burden of ment, as the could see what he looked Cone, In here. Bell v. 535 122 U.S. like. part many The about “how he’s had (2002), drink, S.Ct. 914 in L.Ed.2d period emancipation as adult,” pass describes he could Court Supreme held: However, may an adult. clause that [petitioner] succeed, however, For have beverages objec- drunk alcoholic he must do more than show that he tionable, because it has no basis would have satisfied Strickland’s test record, relatively it non-prejudicial. but claim being analyzed were in the Hodge’s of sup- statement that idea instance, first because under porting getting “my himself share 2254(d)(1), § it enough is not to convince supplemental my or [a] income share that, a federal habeas court its inde- family’s Security Supplemental Social In- pendent judgment, the state-court deci- come” makes little sense. I suppose applied sion incorrectly. Strickland suggests Hodge was welfare deadbeat. Rather, he must show the [state But, again, there is no basis in the record applied court] Strickland the facts of conclusion, for so the remark was in an objectively unreasonably his case objectionable. Nevertheless, it has little manner. no prejudice it, or attached to for Fenn may Thus, herself been on welfare. (internal 698-99, Id. at S.Ct. cita- if it suggests Hodge was not credible be- omitted). tions I not do believe that deadbeat, cause he was a welfare it would Hodge has carried that burden here. likely apply also Fenn. majority As the does discuss other The third remark: would “[H]ow raised, However, issues I not. also do put like to yourself place of someone assuming there were other issues of might run [Hodge] into at night?” also raised, merit uphold would the decisions objectionable and was the closest magistrate judge and the district being prejudicial, itself con- finding court in there is no basis junction remarks, for the other did prejudice amount to issuance a writ of habeas corpus, sufficient to warrant a be- finding of ineffective assistance of counsel. Appeals cause the Ohio Court of did not Federal established unreasonably apply Strickland.

law under said notes chest, oppor- and offer throughout Consuela Fenn her an bmises which sup- fact, tunity. ports family saying, In this was never mentioned what which stand, Dr. destroys injury theory. till she was on and off the the straddle And decided, pass- even if though you report, you’ll Steiner he’s not read Dr. Steiner’s find credibility, he did ing wrongfully on the nurse’s he has dealt with these issues hers, consider statement of then he that a as well. adopted claims that it later. Now, Mr. Nagy suggests you also Now, there is that she there no-—-the State’s case is not this, date, looked at read that in a strong enough beyond wasn’t to be a reasonable done, doubt, state of when hysteria quotes this was and he same language that; acknowledged every we don’t know lawyer quotes defense worker, trial, the social when told me before saying important it’s the of your most this, truth, this this and was the affairs and be firmly own should con- date; vinced, never mentioned don’t know and that language is accurate.

Case Details

Case Name: Demarkus Hodge v. Pat Hurley, Warden

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Oct 12, 2005

Citation: 426 F.3d 368

Docket Number: 03-3166

Court Abbreviation: 6th Cir.