Routy Abernathy v. Ray HobbsRouty Abernathy v. Ray Hobbs
and the execution” of the offense of conviction. Id. at 1134.
The disputed evidence in this case demonstrated the circumstances surrounding the offense and tended logically to prove one or more elements of Morrison‘s unlawful possession of ammunition. See Moore v. United States, 178 F.3d 994, 1000 (8th Cir.1999). It showed a pattern or scheme of straw purchases and thus helped to explain how the offense of conviction commenced and occurred. See Roberts, 253 F.3d at 1134. Evidence of the firearm-purchasing scheme was probative of Morrison‘s knowledge and explained how and why he used Hove to acquire prohibited ammunition. The recent straw purchases by Hove arguably played an integral role in the offense of conviction. The district court thus reasonably concluded that the evidence was relevant.
The judgment of the district court is affirmed.
Kathryn Henry, AAG, argued, Little Rock, AR, for appellee.
Before WOLLMAN, BYE, and MELLOY, Circuit Judges.
BYE, Circuit Judge.
An Arkansas jury found Routy Abernathy guilty of raping his two minor nieces in violation of
I
An Arkansas jury convicted Abernathy of raping his two minor nieces, S.D. and C.D., who were ten and eleven years old, respectively, at the time of the rapes. The girls are not Abernathy‘s biological nieces, but rather are the daughters of his wife‘s sister. Abernathy‘s conviction was based largely on the trial testimony of the two victims because there was no physical evidence and the victims had initially denied the rapes when interviewed by investigators.
Before trial, Abernathy filed a motion in limine asking to prohibit the admission of any testimony from police investigators, interrogators, and medical personnel expressing an opinion on the credibility of the testifying minors. The trial court ruled this type of testimony would not be allowed.
The case proceeded to trial. During his opening statement, Abernathy‘s counsel made the statement: “I have a duty to do my job and not allow [my client] to take the stand if I dоn‘t believe the State has proven its case beyond a reasonable doubt at the time it rests its case.” Trial Tr. 385.
The testimony at trial included testimony by both victims. C.D. testified about one incident when Abernathy digitally penetrated her vagina. S.D. testified about four incidents, where Abernathy penetrated her vagina with a dildo, Abernathy penetrated her vagina with his penis, Abernathy penetrated her anus with a dildo and then penetrated her vagina with his penis, and Abernathy penetrated her vagina with his penis. Additionally, M.S., a prior victim, also testifiеd pursuant to the pedophile exception to
Abernathy‘s counsel called into question the reliability and truthfulness of the victims’ testimony through medical personnel and investigators. As part of this defense strategy, Abernathy called Cheryl Green, a physician assistant, who had seen and examined M.S. Green testifiеd about the examination and the lack of physical evidence. During cross-examination, the state had the following exchange with Green.
Q: Ms. Green, when you talked to this girl, as a matter of fact, you believed her, did you not?
A: Yes sir.
Q: Even though you found no evidence of physical injury?
A: Yes sir.
Abernathy‘s counsel did not object to the questions or answers.
Abernathy testified in his own defense and denied the accusations in total.
The jury convicted Abernathy of rape as to C.D. and S.D. Abernathy timely appealed his convictions, which the Arkansas Court of Appeals affirmed. Abernathy v. State, 2009 Ark. App. 702, 2009 WL 3460705 (Ark.Ct.App.2009). Abernathy then filed a statе habeas petition with the Arkansas trial court under
Abernathy filed a timely habeas petition in federal district court, raising four claims of ineffective assistance of counsel. The case was referred to Magistrate Judge Beth Deere, who recommended the petition be denied and dismissеd. The district court adopted the magistrate‘s recommendation and also granted a certificate of appealability on two grounds. This appeal followed, in which Abernathy raises two grounds for relief: (1) a claim Abernathy suffered ineffective assistаnce of counsel when trial counsel failed to object to vouching of a minor witness by an expert witness, and (2) a claim Abernathy suffered ineffective assistance of counsel when trial counsel told the jury during opening statements he would not call Abernathy to the stand unless the state had proven its case and Abernathy subsequently took the stand.
II
In a habeas proceeding under
The Antiterrorism and Effective Death Penalty Act (AEDPA),
- resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
- resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Abernathy seeks relief based on two claims of ineffective assistance of cоunsel. The Sixth Amendment to the United States Constitution guarantees the right to effective assistance of counsel in criminal prosecutions.
For the first requirement of the Strickland test, “the court must apply an objective standard and ‘determine whether, in light of all the circumstancеs, the identified acts or omissions were outside the wide range of professionally competent assistance,’ Strickland, 466 U.S. at 690, while at the same time refraining from engaging in hindsight or second-guessing of trial counsel‘s strategic decisions.” Nave v. Delo, 62 F.3d 1024, 1035 (8th Cir.1995).
To establish the prejudice of the second prong of the Strickland test, the petitioner must show “there is a reasonable probability that, but for counsel‘s unprofessional
Taking AEDPA and Strickland together establishes a “doubly deferential” standard of review in
A
Abernathy claims counsel was ineffective in failing to object to a defense expert vouching for the credibility of M.S. Green testified in Abernathy‘s defense regarding the lack оf physical evidence of any rape of M.S., who provided testimony of a prior rape which had not been separately charged. The state, in contravention of a prior trial court order, solicited a vouching statement from Green regаrding the truthfulness of M.S. The Supreme Court of Arkansas held Abernathy did not demonstrate he was sufficiently prejudiced by counsel‘s failure to object to Green‘s testimony to meet his burden of proof, the trial court had instructed the jury concerning its obligation to assess the crеdibility of witnesses, and counsel had effectively challenged M.S.‘s credibility during his closing argument. Abernathy, 386 S.W.3d at 483.
The decision of the Supreme Court of Arkansas was not contrary to clearly established federal law, as determined by the Supreme Court, or an unreasonable apрlication of federal law, because the Supreme Court of Arkansas properly applied the governing legal rule from Strickland. See Williams v. Taylor, 529 U.S. 362, 413 (2000).
The Supreme Court of Arkansas also did not render a decision “based on an unreasonable determination of the facts.”
Giving proper deference, we cannot say the decision of the Supreme Court of Arkansas was an unreasonable application of clearly established federal law or resulted in a decision that was based on an unreasonable determination of the facts. Thus, we affirm the district court‘s ruling that
B
Abernathy next claims counsel was ineffective based on а statement made during opening statements. Defense counsel, during opening statements, informed the jury he would not call Abernathy to the stand in his own defense if counsel did not believe the state had proven the case beyond a reasonable doubt at the timе the state rested its case. Abernathy argues that, because he took the stand in his own defense, trial counsel effectively conceded the government had proven guilt beyond a reasonable doubt. At the Rule 37 hearing, Abernathy‘s counsel testified his statemеnts were not meant to indicate the state had met its burden, but rather were meant to deflect any animosity the jury might have toward Abernathy for not testifying. The Supreme Court of Arkansas held counsel‘s statement about Abernathy‘s testimony was tactical in nature, the trial court had properly instructed the jury that opening statements were not evidence, and Abernathy failed to demonstrate prejudice from counsel‘s remarks. Abernathy, 386 S.W.3d at 483.
Again, the decision of the Supreme Court of Arkansas was not contrary to clearly established federal law, as determined by the Supreme Court, or an unreasonable applicable of federal law, because the Supreme Court of Arkansas properly applied the governing legal rule from Strickland. See Williams v. Taylor, 529 U.S. 362, 413 (2000).
The Supreme Court of Arkansas also did not render а decision “based on an unreasonable determination of the facts.”
Giving proper deference, we cannot say the decision of the Supreme Court of Arkansas was an unreasonable application of clearly established federal law or resulted in a decision that was based on an unreasonable determination of the facts because the factual findings are well-supported by the record. Thus, we affirm the district court‘s ruling that Abernathy did not suffer from ineffective assistance of counsel in this regard.
III
For the reasons stated, we affirm the denial of Abernathy‘s habeas petition.
BYE
Circuit Judge