John Graves was convicted of first degree murder in January 2001. His conviction was affirmed by the Iowa Court of Appeals. He was later denied postconviction relief, and that decision was also affirmed by the Iowa Court of Appeals. Graves then petitioned for a writ of habeas corpus in federal district court, arguing that his counsel was ineffective for (1) failing to obtain a toxicology expert to test and explicate the results of a blood sample Graves submitted hours after the murder, (2) failing to object to prosecutorial misconduct that occurred during the State’s closing argument, (3) failing to preserve error on an unlawful felony-murder jury instruction, and (4) failing to present a blood-spatter expert at trial. The district court 1 denied the writ, and Graves appealed. We affirm.
I.
Graves was released early from work on July 15, 2000. Once home, Graves drank most of a bottle of red wine. He then went to a bar where he drank more. Later, in the early morning hours of July 16, two police officers observed Graves at a convenience store with a known prostitute, Darlene Avant. Graves purchased food for himself and Avant at the convenience store, and he also made cash withdrawals from automated teller machines that night.
Avant accompanied Graves to his home. The two began to engage in sexual activity until Graves, who had a girlfriend at the time, was stricken with remorse. Graves contends that when he asked Avant to leave, she lunged at him with a knife. He acknowledges that she was naked and seated on the floor at that time. In self-defense, he claims, Graves struck her in the head with a dumbbell. After striking Avant in the head multiple times, Graves believed she could not breathe. He took the knife Avant employed in her alleged attack and he used it to cut a hole in her throat — ostensibly attempting an emergency tracheotomy. The knife wound was 2^ inches deep; it missed Avant’s trachea, cut her jugular vein, and impacted her vertebra.
Graves then loaded Avant’s naked body into the trunk of his car, drove to a relatively secluded location, and discarded the body near the road. At some point, he also tried to use bleach to remove Avant’s blood from the carpet in his home. When
Later on July 16, passersby found Avant’s naked body where Graves had discarded it. Graves was questioned by police the same day, and he initially denied knowing Avant. Later, Graves admitted to meeting Avant and causing her death.
Graves was charged with first degree murder. He asserted defenses of justification and diminished capacity due to alcohol intoxication. At trial, defense counsel marshaled evidence of Graves’ intoxication on the night of the murder, but did not introduce scientific evidence of Graves’ blood alcohol content. The court provided the jury with a general verdict form, allowing the jury to convict Graves of first degree murder on either of two theories. The instruction allowed the jury to convict Graves if he (a) willfully, deliberately, and with premeditation killed Avant or (b) caused Avant’s death while participating in the forcible felony of willful injury. The jury found Graves guilty of murder in the first degree, and the district court sentenced Graves to a mandatory term of life in prison.
Graves appealed. Along with other arguments, Graves contended that his trial counsel was ineffective for failing to call an expert to testify regarding Graves’ blood alcohol level following his arrest. The Iowa Court of Appeals affirmed the conviction, and the Supreme Court of Iowa denied further review.
Subsequently, Graves filed an application for postconviction relief in Iowa district court. In support of his claim for postconviction relief, Graves argued that his trial counsel was ineffective by, inter alia, failing to object to prosecutorial misconduct that occurred during closing argument when the prosecutor referred to Graves as having lied at trial. Graves also asserted that his counsel on direct appeal was ineffective for the same reasons. The postconviction trial court rejected Graves’ claims, and Graves appealed. Of the claims argued to the postconviction trial court, Graves pursued only the prosecutorial-misconduct-based claim on appeal. In addition, Graves asserted for the first time that his counsel at trial, direct appeal, and postconviction relief proceedings were each ineffective for failing to object to parts of the State’s closing argument. The Iowa Court of Appeals affirmed the state district court’s denial of postconviction relief. The Supreme Court of Iowa denied further review.
Graves filed a petition for a writ of habeas corpus. He argued that his trial counsel was ineffective when counsel failed (1) to object to prosecutorial misconduct that occurred during closing argument when the prosecutor referred to Graves as having lied, (2) to object to the felony-murder instruction using willful injury as the predicate felony, (3) to present an intoxication defense at trial, and (4) to present a blood-spatter expert at trial.
Before resolution of the petition for a writ of habeas corpus, Graves moved the federal district court to provide for expert witness fees and to allow an evidentiary hearing. He requested fees for toxicology and blood spatter experts. The district court denied both requests. The court held that an intoxication expert would not have changed the outcome of the trial. The court also held that the claim based on the failure to obtain a blood spatter expert was procedurally defaulted.
After a hearing on the petition, the district court rejected each of Graves’ claims of ineffective assistance of counsel. Graves appeals to this court.
II.
“ ‘In an appeal of a habeas application, we review the district court’s findings of
III.
Graves argues that the Iowa Court of Appeals’ rejection of his direct appeal was based upon an unreasonable determination of a material fact, entitling him to relief under 28 U.S.C. § 2254(d)(2). Specifically, Graves points out that the Iowa Court of Appeals rejected his claim that trial counsel was ineffective for failing to have an expert test and explicate the results of blood samples taken hours after the murder, based on the court’s mistaken belief that a state criminalist had testified “that Graves had alcohol in his system totaling .333 grams per milliliter.”
Iowa v. Graves,
No. 01-0269,
The authority of federal courts to entertain an application for a writ of habeas corpus on behalf of a person in state custody is limited by 28 U.S.C. § 2254. One limitation currently codified in § 2254 prescribes that “[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that ... the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). “Comity ... dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief.”
O’Sullivan v. Boerckel,
Graves did not give the state courts an opportunity to review his claim that the Iowa Court of Appeals’ decision was based upon an unreasonable determination of the facts in violation of § 2254(d)(2). On direct appeal, he argued that his trial counsel was ineffective in failing to retain an expert to test a sample of blood taken hours after the murder. In the course of rejecting Graves’ argument, the appellate court made the statement about Graves’ blood alcohol content. Graves subsequently applied to the Iowa Supreme Court for further (discretionary) review of the Iowa Court of Appeals’ decision but did not mention his counsel’s performance with respect to his diminished capacity defense— clearly failing to take issue with the blood alcohol content statement. Subsequently, Graves applied for postconviction relief but again failed to take issue with the Iowa Court of Appeals’ statement regarding his blood alcohol content. Similarly, Graves again overlooked the issue on appeal of the denial of postconviction relief. Plainly, the Iowa state courts did not have a fair opportunity to review the claim centered on the Iowa Court of Appeals’ factual statement regarding Graves’ blood alcohol content. 2 Consequently, Graves is barred from bringing the claim in this court.
As is well-established, to prevail on an ineffective assistance of counsel claim, Graves must establish that his counsel failed to perform an essential duty and that the failure prejudiced Graves.
Strickland, v. Washington,
Graves testified that he drank most of a bottle of wine between approximately 8:00 p.m. and 10:00 p.m. and then drank an estimated eight beers and three shots of whisky at the bar before it closed at 2:00 a.m. Multiple eyewitnesses, including two police officers and the bartender, testified to Graves’ demeanor in the early morning hours. The jury heard Graves testify about the night in question, and they witnessed his ability to remember certain details of the evening along with his inability to recall other details.
The record is unclear as to when authorities obtained the blood sample that Graves argues should have been independently tested. Nonetheless, the sample could not have been drawn until after noon on the day following the night of Avant’s death. Thus, at best, any expert would be testifying about the hypothetical effects of Graves’ estimated blood alcohol level. In the face of the record evidence, there is no reasonable probability that the result of Graves’ trial would have been different had counsel proffered the requested expert testimony. 3
IV.
Graves also argues that his counsel provided ineffective assistance when counsel failed to object to prosecutorial misconduct that Graves believes occurred during closing arguments. Graves argues that the prosecution made four improper statements during closing arguments: (1) “Now, [defense counsel] is going to say it is too embarrassing to call the police when you’ve got a prostitute in your house. Ladies and gentlemen, that’s so weak.” (Trial Tr. Vol. IV at 550.) (2) “Ladies and gentlemen, consider what he does after he kills her. Everything he does is an attempt to cover up. He cleans up so that he doesn’t get caught.... He lies to his
Graves first complained of these statements in his postconvietion relief proceedings. The state postconviction relief district court held that two of the statements were improper, but that the statements were not so prejudicial that Graves was denied a fair trial. The postconviction appellate court agreed. Graves then filed his federal petition for a writ of habeas corpus which generates this appeal. The federal district court held that the record did not show sufficient prejudice to establish a claim of prosecutorial misconduct under federal law.
We lack authority to grant the writ based on a reexamination of the Iowa Court of Appeals’ determination that no prosecutorial misconduct occurred under state law.
4
28 U.S.C. § 2254(d)(1);
Mid dleton v. Roper,
“[A] two-part test determines whether prosecutorial misconduct has occurred: first, the prosecutor’s conduct or remarks must have been improper, and second, the remarks or conduct must have prejudicially affected the defendant’s substantial rights by depriving the defendant of a fair trial.”
United States v. White,
The cumulative effect of the alleged misconduct could not have been great. First, defense counsel had himself pointed out in his opening statement that Graves lied in an attempt to conceal his role in Avant’s death. Additionally, before closing arguments, the evidence at trial had already destroyed Graves’ credibility. The evidence showed that Graves initially told police that he did not know about Avant’s death, then changed his story. The jury also already knew that Graves falsely told his girlfriend that he spilled red wine on the carpet. And Graves’ testimony regarding how many times he struck Avant with the dumbbell was directly contradicted by a government evidence technician and demonstrative evidence addressing blood spatter. Finally, there are only four challenged statements, and each took place during closing arguments. Thus, there was no improper prosecutorial theme pervading the entire trial.
See Anderson v. Goeke,
The cumulative effect of any misconduct is also outweighed by the strength of the properly admitted evidence of Graves’ guilt. Graves admitted that he caused Avant’s death, and his defense focused on theories of diminished capacity and justification. Graves’ principal argument that the prosecutorial misconduct prejudiced his defense is that the success of his defenses turned on the jury’s favorable evaluation of his credibility, and the misconduct was directly aimed at destroying that credibility. With regard to Graves’ diminished capacity defense (and inversely, with regard to proof of Graves’ specific intent to assault and murder Avant), numerous witnesses testified as to what alcoholic beverages Graves consumed and his resulting demeanor. Those witnesses included two police officers and a bartender. Graves was able to drive, engage in commercial transactions, and operate an ATM. He also chose right over wrong when he ended the sexual encounter with Avant due to feelings of guilt. Finally, the nature of the weapons and the “ ‘reckless character and manner of the assault’ ” suggested his intent.
See United States v. Warbonnet,
The evidence likewise strongly discounted Graves’ justification defense. Avant was naked and seated on the floor when she was repeatedly struck in the head with a dumbbell, an unlikely time for the smaller woman to attempt to stab Graves with a knife. Avant also suffered a two- and-one-half inch stab wound to her neck. While Graves contends it was his attempt at an emergency medical procedure he had seen on television, the incision sliced through Avant’s jugular vein and impacted her vertebra. Additionally, Graves failed to act as someone with an honest belief that he had previously acted in self defense — he removed Avant’s body and disposed of the body in a ditch along with other evidence of the killing, he attempted
Finally, the jury was instructed that closing arguments' are not evidence and that its verdict must be based on the evidence.
See Littrell,
V.
Finally, Graves contends that due process requires that he benefit from the Supreme Court of Iowa’s decision in
State v. Heemstra,
In the procedural context of this case, Graves claims that the Iowa Court of Appeals unreasonably applied established United States Supreme Court precedent when it affirmed the rejection of Graves’ application for postconviction relief, holding that due process did not mandate application of
Heemstra
to his collateral attack. In that state postconviction appeal, Graves posited that
Teague v. Lane,
The State argues that Graves has not presented a due process claim based on Fiore and Bunkley to a state court and that his claim is consequently procedurally barred. In the alternative, the State argues that federal due process does not require a subsequent court to apply Heemstra to a collateral attack. Although we doubt that Graves fairly presented this issue to the state courts, 8 we will address Graves’ reliance on Fiore and Bunkley because it is plain to us that the due process claim he presses lacks merit.
Fiore
addressed the constitutionality of a conviction for violating a state statute prohibiting the operation of a waste facility without a permit.
In order to resolve the case, the United States Supreme Court certified a question to the Pennsylvania state supreme court.
Id.
at 228,
In
Bunkley,
the defendant challenged his conviction and relied on
Fiore. Bunkley,
Neither
Fiore
nor
Bunkley
requires application of
Heemstra
to Graves’ collateral attack. In
Fiore
the United States Supreme Court explicitly stated: “[T]his case presents no issue of retroactivity.”
More importantly for our analysis, Fiore relied exclusively on the state supreme court’s determination of what conduct the criminal statute prohibited at the time of the conviction. In Bunkley, the Court could not answer the Fiore question without determining what conduct the statute criminalized at the time of the conviction, so the Court remanded the case to the state supreme court to make that determination. This court is obviously bound no less than the United States Supreme Court by state supreme court determinations of state law.
Graves argues that, due to the general verdict, his conviction may represent a felony-murder conviction wherein the act that caused the predicate felony is the same act that caused the victim’s death. As explained in
Goosman v. State,
The key fact in Fiore was that the defendant was convicted of a crime without proof beyond a reasonable doubt as to each element of the crime, as shown by a subsequent judicial clarification. That key fact is not present in Graves’ case. The Supreme Court of Iowa said in Goosman that Heemstra had changed the law. Thus, unlike the intervening case law at issue in Fiore, Heemstra does not demonstrate that Graves was convicted of a crime without proof beyond a reasonable doubt of each element. To the contrary, Goosman demonstrates that Graves’ trial court correctly applied the felony-murder statute as interpreted by the Supreme Court of Iowa at the time of Graves’ trial.
To the extent Graves makes the separate claim that due process requires truly retroactive application of
Heemstra
(apart from
Fiore)
— that is, that he is entitled to have his conviction scrutinized in light of intervening case law in a collateral attack — his claim also fails. “The Supreme Court has held that the Constitution does not require a state’s highest court ‘to make retroactive its new construction of [a criminal] statute.’ ”
Henry v. Ricks, 578
F.3d 134, 140 (2d Cir.2009) (quoting
Wainwright v. Stone,
VI.
Accordingly, the judgment of the district court is affirmed.
Notes
. The Honorable Ronald E. Longstaff, United States District Judge for the Southern District of Iowa.
. This conclusion is reinforced by the procedural fact that Graves did not even mention such a claim in his federal petition for writ of habeas corpus. To the contrary, Graves requested expert witness fees and an evidentiary hearing, and he cited and
relied upon
the Iowa Court of Appeals' statement regarding his blood alcohol content in support of those requests. Graves did not highlight the Iowa Court of Appeals’ obvious factual mistake, nor
. Graves did not address the blood spatter issue in his brief to this court, so we deem that issue to be abandoned.
Weaver v. Bowersox,
. The Iowa Court of Appeals held that Graves' prosecutorial misconduct claim failed to satisfy the Iowa courts’ test for prosecutorial misconduct. That test requires "proof the misconduct resulted in prejudice to such an extent that the defendant was denied a fair trial.”
State v. Graves,
. While we need not, and do not, decide whether the comments were improper, we observe that most of the prosecutor's comments were made in the context of reviewing the evidence.
See United States v. Littrell,
. While we have refrained from determining the propriety vel non of the prosecutor’s statements, we have serious doubt that when the evidence clearly shows that a defendant has admittedly lied about his involvement in the crime, that it is prosecutorial misconduct to point out in argument that the defendant did so and to ask the jury to consider whether such dissembling also occurred during the defendant’s courtroom testimony.
.
Teague
addressed the retroactive effect of new rules of criminal procedure dictated by the court’s interpretation of the Constitution.
See Teague,
. Graves did not cite
Fiore
or
Bunkley
during his Iowa postconviction relief proceedings, nor did he argue that he was convicted of that which is not a crime or without proof beyond a reasonable doubt of each of element of that which is a crime. Instead, he merely argued that due process requires that
Heemstra
be applied retroactively on his collateral attack. By its own terms,
Fiore
"presents no issue of retroactivity.”