*2
pros-
During
argument, the
CLARK,
and
Before
TATE
CHARLES
divulged
length McKinney’s
ecutor
WILLIAMS,
Judges.
Circuit
conviction, gave his
prior
for a
sentence
prosecutrix’s
de-
explanation for
own
WILLIAMS,
Judge:
Circuit
JERRE S.
crime,
on
reporting
commented
layed
Estelle, Jr.,
W. J.
appeal by
This is
weight of
indictment as evidence
Department
Director of
Texas
of Cor-
press-
motives
and the
rections,
judgment
from the district court’s
case,
suggested that
ing his
corpus relief
Paul Abra-
granting habeas
mention-
conclusion
foregone
McKinney.
ham
He had been convicted
be introduced
ing evidence that could
Texas state court. We reverse.
the trial. De-
punishment phase of
at the
argu-
throughout
statutory rape
objected
indicted
fense
Michelle,
overruled
adopted daughter,
and was sometimes
of his
ment
objected
prosecutor'
sometimes sustained. The
then Defense counsel
immediately, but
on
commented
defense counsel’s continued
the trial court dismissed the
without
objections by telling
“He’s
ruling
objection,
on the
[de-
and defense counsel
pretty
fense
well
in de-
succeeded
counsel]
neither
asked for a
nor renewed his
”
my
stroying
train of
. .
thought.
. When
objection.
*3
comment,
objected
dеfense counsel
that
to
him
court told
to sit down and let
OF THE
RESOLUTION
ISSUES
finish.
fi-
prosecutor’s
The
prosecu-
The
district court
nal statement
aswas
follows:
closing argument
inflammatory
tor’s
was so
Now, this is about the most clear cut case
render the
trial
and
as to
whole
of
I
imagine. Maybe
can
be-
it’s
fundamentally
unfair. While the State
cause I
living with the case a
have-been
concedes,
must,
as in all candor
it
that
more;
long time
know
and I
have
there
improper,
it contends that
been
hearings
your
a lot of
outside of
preserve
McKinney’s
properly
presence.
every-
You’re not аble to hear
contempo-
error in
accordance
thing.
objec-
There
have been
lot of
objection
operates
raneous
rule
as a waiver
during
may
tions made
the trial. You
corpus proceeding.
of the issue in a habeas
wonder,
why
being
now
is that
isWhy
being
sustained?
that оne
over-
prosecutor’s
final statement
Well,
ruled?
there were a lot of reasons
closing argument
blatantly improp
his
things
for
you
got
that
all never
law, however,
er. Under Texas
a contem
hear. A lot of these
are
issues
taken care
poraneous
pre
must be made to
your presence,
of
of
outside
and evidence
serve such errors for review on
is admitted or ruled inadmissable outside
(Vernon
Tex.Code Crim.Pro.Ann. art. 36.07
your presence
of
So,
frequently.
1966). Although
objected
rate,
things
there
a lot of
that I know
are
time,
proper
at the
failed
case;'
аbout the
I have talked with the
objection by obtaining
on it. This
it,
people;
very
I feel
strongly about
and
procedural default barred review of the
I sincerely hope you
way
feel the same
appeal
claim in the Texas courts on direct
about it. You heard the evidence. Sure-
State,
corpus. McKinney
and habeas
v.
505
ly,
doubt,
there can be no reasonable
no
536
S.W.2d
in anyone’s
reasonable doubt
here.
mind
hope
be,
I
pray
and I
that if there should
Principles
comity
and federal
be,
if there should
if
people
eleven
should
prevent
granting
ism
federal courts from
doubt,
per-
reasonable
that that one
corpus
relief in the nature of
to a
habeas
son
good
who knows
well
and
that he’s
prisoner
state
whose claim was
re
denied
guilty just
here,
as
sitting
he’s
holds out
view the state
proce
courts because of a
conviction,
and votes his
bеcause ladies
default,
showing
dural
absent a
both of
gentlemen,
I will
him
try
day
from
cause
resulting preju
default and
day in, day
out,
out
day
in and
Sykes,
dice.
v.
433
97
rest of the
Henry
time I’m with
(1977);
53
Wade,
L.Ed.2d 594
Wash
because he’s
as
sitting
he’s
ington
Estelle,
(5th
F.2d
Cir.
today.
courtroom
If I have to I’ll
1981);
project
Tyler
Phelps,
(5th
make a
643 F.2d
out
it and I
ask
will
you
1981).1
to return
you
verdict
This case must
turn
which
Cir.
on the
can return in
application
this case. That’s a
important princi
verdict
of these most
of guilty.
ples. The district court found that McKin-
may
excused,
(5th
Here,
1980).
1. Procedural defaults
notwith-
Cir.
standing Wainwright,
where the state court
refused to consider
merits
despite
(Tex.
reaches the
merits
the claim
a de-
fundamental
fairness.
there, however,
central
issue
was whether
petitioner
had exhausted state remedies
McKinney alleges two reasons for
2254(c).
required by
object properly at trial.2 as
28 U.S.C. §
counsel’s failure to
First,
peti-
review
urges in
brief
state court
refused to
prosecutor’s
regarding prosecutorial
tioner’s claim
mis-
continuously
“[t]he
*4
to
the
petitioner
.
the
so as
because he had failed
follow
prejudiced
rеmarks..
conduct
object
every
requirements
at
error
justify his failure to
formal
identifica-
to
was
that
the
improper argument
where
tion. This court found
because
instance
an
petitioner
true
had
the
made.” While it
is
that continued
issue
court,
form,
he
part
prosecution
of the
albeit in аn
improprieties on the
circumstances,
opinion
the de-
exhausted state remedies. The
may, in some
excuse
Wainwright
object,
it
do so
in connection
duty
fense of its
to
cannot
cites
not men-
survey
post-Wa/n-
record.
the issue of exhaustion and does
on this
Our
prejudice
cause
test because
corpus proceedings
in
tion the
in
issue
the case.
a
case
was not at
in
single
circuit has not revealed
the
which the cause element of
were
prosecutorial misconduct
Even if
allega-
by
petitioner’s
was
the
test
satisfied
object in
failure to
sufficiеnt
to excuse a
prosecutorial
that
caused
tion
misconduct
Wainwright,
our decision
the context
the default.
case,
present
the
unchanged.
In
would
object; his error was
mistakenly
relied
defense counsel did
district court
objection. Against
Garza,
perfect his
failing
608
659
to
United States v.
frequent objections
1979),
background
of his
the
throughout
the
1978),
holding
throughout
the trial and
its
ap-
prosecutorial argument
prosecutor’s
his
that
the
largely an
McKinney’s proce- pears
to have been
off-handed
was
cause
ease, however,
comment,
purpose
impress-
default.
is
more for the
dural
Neither
get
ruling.
a
A hold-
applicable
ing
here.
the
than to
by
excusing
attorney
stymied
who
ing
appeal
a direct
from a
Garza involved
justified
is not
misconduct
in federal
in which
criminal conviction
by the
attorney was unshaken
when the
appellant
the
that prosecutorial
claimed
misconduct,
carry
merely failed to
but
misconduct rendered
fundamental-
through
responsibilities.
on
case,
present
appel-
As
the
ly unfair.
in the
de-
explanation for
object properly
failed to
trial. Be-
second
lant
at
objec-
appeal
the case
а direct
from
fense counsel’s failure
cause
by
conviction,
attorney was intimidated
under
federal
it was reviewed
tion is
standard; Wainwright
An examination
“plain
prosecutor’s
remarks.
error”
-
specif
transcript shows no
prejudice
the trial court
was not
issue. The cause and
(Tex.
505 S.W.2d
argues
ther.
also
that
the error
Crim.App.1974).
properly preserved
bound
follow the
In its
We are
under
law.
Texas
appeal,
on this matter.
review of this
Texas court’s determination
case on direct
Allen,
County
Appeals
County
that
Court of Ulster
Court of
Criminal
2213,
(1979);
perfected
REVERSED. ruling objection ure to obtain —a undoubtedly that would as have been TATE, Judge, dissenting: Circuit adverse, as was the for most of his case respectfully I previous dissent. objections. ineptness general has not raised the issue of ineffeс- the failure is reflection transcript tive assistance in this A counsel. review of the does not objection general ineptness, failure to the critical in this show such a however. case does raise the issue of whether credibility, sought his witnesses’ present agree
I would with the district and influence of the adequate cause is shown for this use status court that government investigatory procedural appa- stat- entire minor default.1 believability ed: ratus to bolster of this case. respondent To relies on the extent objection” “contemporaneous (footnote rule Garza, 665-66 supra v. U. S. see omitted). frustrate v. S.W.2d Judge recognized sepa- As Rubin the Court is of the (Tex.Crim.App.1974), Alabama, opinion in v. su- rate Cronnon opinion McKinney has demonstrated 1979)] (5th pra at 252 F.2d 246 Cir. [587 prejudice” to necessary “cause and result), (Rubin, concurring in the claims Eu- the rule’s strictures. circumvent improper jury argument necessitate At- repeated improprieties banks’ caused judicial linedrawing. Eubanks’ press kins to fail to clearly prej- and more more complained-of remark. Cf. United States approved udicial in Cronnon v. than those Garza, (5th 1979) Cir. Alabama, Estelle, supra, and Alvarez indeеd, (“while and, could supra 1976)] but F.2d 1319 [531 objected to the first should have instances nearly egregious as that con- so prosecutor, comment Estelle, supra. demned in Houston transgressions point at some of this However, is convinced Eu- the Court greatly so as to be cumulated remarks, with sugges- rife banks’ final inсurable; then ex- tions that the court and defense counsel tremely prejudicial comments would prosecution’s attempts frustrated jury’s serve to focus the attention on present of the evidence laced all them”); supra [569 personal with his conviction of firm 1978)] (re- F.2d 372 at 381-82 guilt, crossed boundаries peated improper argument instances *6 constitutionality propriety, and de- comments on defense coun- fundamentally prived McKinney of objections may mitigate sel’s successful trial he was entitled. fair to which object). duty defendant’s The inher- respectfully dissent. Accordingly, I prеjudice ent in Eubanks’ last remarks
evident. important problem facing most
[T]he was its decision to credit the
testimony of .. . the witnesses [state’s]
or that of .... defendant] [the
prosecutor’s comments . . . were ex-
pressly intended to influence crit- this choice; credibility
ical he introduced jury’s consideration his own choice,
personal opinion as sug-
gested the existence information be-
yond trial objection, op- the state trial defense I will the factual counsel’s not dwell lack court, it, immediately referring portunity, interrupting jury’s proc- an- without without courtroom, gentlemen, jury: leaving “Ladies and ess of if the nounced defendant’s charge, you again retire will the court once for a take the Court’s had asked foreman, room, you undoubtedly and when would elect a have overruled verdict, improper prosecutorial at a knock on the door and we defense arrived repeated as on earlier occasions. will receive it.” that, immediately following The record shows