Berry v. Epps , 230 F. App'x 386 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS April 24, 2007
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-70051
EARL WESLEY BERRY,
Petitioner - Appellant,
versus
CHRISTOPHER B. EPPS, COMMISSIONER,
MISSISSIPPI DEPARTMENT OF CORRECTIONS,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of Mississippi
(1:04-CV328-D-D)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
For a murder committed in late 1987, Earl Wesley Berry was
convicted in Mississippi state court of capital murder and
sentenced to death. The district court denied habeas relief and a
certificate of appealability (COA). Berry seeks to appeal that
decision. In order to be able to do so, he requests a COA. COA
DENIED.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I.
Mary Bounds was reported missing on 29 November 1987. A few
days later, on 1 December, her vehicle was located in Houston,
Mississippi. Inspection of the vehicle revealed spattered blood
around the driver’s side door. Mary Bounds’ body was found nearby;
she had been severely beaten. It was later determined that she
died of head injuries from repeated blows.
Berry’s confession provided the details of what transpired.
On the evening of 29 November 1987, while driving through Houston
in his grandmother’s vehicle, Berry saw Mary Bounds near a church.
As she was preparing to enter her vehicle, he approached, and hit,
her and forced her into his vehicle. Berry then drove out of town.
Berry took Mary Bounds into a wooded area and ordered her to
lie down, intending to rape her. Berry did not do so; he took her
back to the vehicle, telling her they would return to town.
Instead, Berry drove to another wooded area where they exited the
vehicle. Mary Bounds pleaded with Berry, but he beat her with his
fists and forearm. Afterwards, he carried her further into the
woods and left her.
Berry drove to his grandmother’s house, disposing of a pair of
mismatched tennis shoes along the way. At his grandmother’s house,
he burned his bloodied clothes and wiped the vehicle he had used of
any blood stains with a towel, which he threw into a nearby pond.
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Berry’s brother, who was at the house, witnessed some of this
suspicious behavior. On 5 December 1987, he called investigators
and told them what he had observed. The next day, Berry was
arrested at his grandmother’s home and soon confessed to the crime.
Police found the mismatched tennis shoes Berry had discarded; in
the above-referenced pond, they found a bloodied towel.
Berry was indicted for the murder and kidnapping of Mary
Bounds, and as a habitual criminal, on 1 March 1988. In a
bifurcated (guilt/innocence and punishment phases) jury trial
(first trial), he was convicted, inter alia, of capital murder, in
violation of Mississippi Code Annotated § 97-3-19(2)(e) (killing in
connection with a kidnapping), and, on 28 October 1998, sentenced
to death.
Berry appealed the conviction and sentence to the Mississippi
Supreme Court. It affirmed the conviction but vacated the death
sentence and remanded for resentencing, holding the jury
instruction with regard to the “especially heinous, atrocious or
cruel” aggravating circumstances, a condition required for a death
sentence, failed to appropriately channel the jury’s discretion.
Berry v. State, 575 So.2d 1 (Miss. 1990) (Berry I).
Berry’s resentencing trial began on 22 June 1992, after venue
had been changed from Chickasaw to Union County, due to the nature
and extent of the publicity surrounding the case. On 25 June,
Berry was again sentenced to death. That sentence was appealed to
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the Mississippi Supreme Court. It affirmed in part, remanding to
the trial court to hold a hearing on whether the Batson test
applied to the State’s striking all black potential jury members in
a case involving a white defendant. Berry v. State, 703 So.2d 269(Miss. 1997) (Berry II).
On remand, the trial court held the Batson hearing and ruled:
Berry failed to establish a prima facie case for discrimination;
and the State’s strikes were race-neutral. Berry appealed, and the
Mississippi Supreme Court affirmed. Berry v. State, 802 So.2d 1033(Miss. 2001) (Berry III). The Supreme Court of the United States
denied review. Berry v. Mississippi, 537 U.S. 828 (2002).
On 20 December 2002, Berry requested post-conviction relief
from the Mississippi Supreme Court. Among other claims, Berry
sought relief for three of the five claims for which he now
requests a COA. The state supreme court (state-habeas court) found
one of those claims procedurally barred under Mississippi Code
Annotated § 99-39-21 (state habeas law governing the procedural
waiver of objections, defenses, and claims and res judicata), and
one without merit. Concerning Berry’s claim (based on two
instances) for ineffective assistance of counsel (IAC) for which he
requests a COA here, the state-habeas court found his claim
concerning one instance procedurally barred and the claim
concerning the other without merit. Habeas relief was denied.
Berry v. State, 882 So.2d 157 (Miss. 2004) (Berry IV). The Supreme
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Court of the United States again denied relief. Berry v.
Mississippi, 544 U.S. 950 (2005).
In October 2005, Berry requested federal habeas relief under
28 U.S.C. § 2254, presenting 12 claims. A year later, in a 64-page
opinion, the district court denied relief. Berry v. Epps, 2006 WL
2865064 (N.D. Miss. 5 Oct. 2006) (Berry V).
In order to be able to appeal that habeas denial, Berry
requested a COA from the district court, pursuant to 28 U.S.C. §
2253(c), for the following five claims raised, and denied, in his
federal habeas application: for his first trial, (1) the admission
of his confession, and (2) the denial of his change-of-venue
motion; and for his resentencing trial, (3) IAC, (4) prosecutorial
misconduct, and (5) the admission of photograph and videotape
evidence. Berry also claimed the district court should have
considered his defense against the imposition of any procedural
default with regard to claims raised in his habeas petition. (In
response to assertions that some of his claims were unexhausted and
procedurally defaulted, Berry claimed: there was “an absence of
available State corrective process[es]”, 28 U.S.C. §
2254(b)(1)(B)(i), or “circumstances exist[ed] that render[ed] [the
State court corrective] process[es] ineffective to protect the
rights of the applicant”, 28 U.S.C. § 2254(b)(1)(B)(ii); and, but
for these issues, his claims would be valid.)
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The district court denied a COA. Berry v. Epps, 2006 WL
3147724, *1 (N.D. Miss. 2 Nov. 2006) (Berry VI). Therefore, in
order to appeal the habeas denial, Berry must obtain a COA here.
Berry seeks a COA for the same five claims for which a COA was
denied in district court.
II.
Berry’s federal habeas application is subject to the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.
104-132, 110 Stat. 1214 (1996) (AEDPA). See, e.g., Penry v.
Johnson, 532 U.S. 782, 792 (2001). As noted, under AEDPA, in order
for an appeal to be permitted from the denial of habeas relief on
a claim, Berry must obtain a COA, from either the district court or
this court. 28 U.S.C. § 2253(c); FED. R. APP. P. 22(b)(1); Slack v.
McDaniel, 529 U.S. 473, 478 (2000). Under AEDPA, a COA may not
issue unless Berry makes a “substantial showing of the denial of a
constitutional right”. 28 U.S.C. § 2253(c)(2); see also Slack, 529
U.S. at 483. This requires demonstrating “reasonable jurists could
debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed
further”. Slack, 529 U.S. at 483-84 (internal quotations and
citations omitted).
In deciding whether to grant a COA, we are limited, inter
alia, to a “threshold inquiry into the underlying merit” of Berry’s
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claims. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). This
inquiry “does not require a full consideration of the factual or
legal bases adduced in support of the claims”; instead, we are to
conduct “an overview of the claims in the habeas petition and a
general assessment of their merits”. Id. at 336. Because a death
penalty was imposed, any doubts about whether a COA should be
granted will be resolved in Berry’s favor. E.g., Hernandez v.
Johnson, 213 F.3d 243, 248 (5th Cir. 2000).
Concerning our mandated threshold-inquiry, in ruling on the
habeas application, the district court was required by AEDPA to
defer to the state court’s resolution of questions of law, as well
as mixed questions of law and fact, unless the state-court decision
was “contrary to” or an “unreasonable application” of clearly
established federal law, as determined by the Supreme Court. 28
U.S.C. § 2254(d)(1); see Hill v. Johnson, 210 F.3d 481, 484-85 (5th
Cir. 2000). A state-court decision is contrary to clearly
established federal law if it “reaches a legal conclusion in direct
conflict with a prior decision of the Supreme Court or if it
reaches a different conclusion than the Supreme Court based on
materially indistinguishable facts”. Miniel v. Cockrell, 339 F.3d
331, 337 (5th Cir. 2003). An unreasonable application of law
differs from an incorrect application. See, e.g., Williams v.
Taylor, 529 U.S. 362, 409-12 (2000). Consequently, under AEDPA,
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federal courts may correct an erroneous application of law only if
it is also unreasonable. Id.Furthermore, in ruling on the application, the district court
was required by AEDPA to defer to state-court factual findings
unless they were “based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceedings”. 28 U.S.C. § 2254(d)(2). Those factual findings are
“presumed to be correct”; Berry had the “burden of rebutting that
presumption by clear and convincing evidence”. 28 U.S.C. §
2254(e)(1).
As discussed, as he did in district court, Berry seeks a COA
for each of the following five claims. First, at his first trial,
because his testimony on whether he was afforded his rights under
Miranda v. Arizona, 384 U.S. 436 (1966), conflicted with that of
the State’s witnesses, his confession should not have been
admitted. Second, the trial court’s refusal to change venue for
that first trial, despite extensive pre-trial publicity, denied him
his rights to trial by an impartial jury, in violation of the Sixth
Amendment. Third, at his resentencing trial, his counsel was
constitutionally ineffective under Strickland v. Washington, 466
U.S. 668 (1984) because: he allowed the trial court to refer to
Berry as a “habitual offender”; and he did not secure a meaningful
review of certain conduct by the prosecutor. Fourth, for that
trial, the prosecutor acted vindictively in denying him a plea
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bargain and the district court failed to address this in its
analysis. Fifth, at that resentencing trial, inflammatory
photographs and videotape evidence denied him a fair trial. As a
collateral claim, Berry asserts, as he did in district court, that
certain of his other claims should not be procedurally defaulted
because of asserted deficiencies in the State’s post-conviction
review process, in violation of 28 U.S.C. § 2254(b)(1)(B). (This
is not a COA request because it does not concern a claim for the
violation of a constitutional right. Instead, it is presented to
establish cause to overcome procedural default on claims concerning
such a right.)
At best, Berry’s COA request is extremely cryptic and
conclusory. Moreover, for each of the underlying five claims, he
cites no authority for why he is entitled to a COA. Instead, at
the start of his ten-page request, he simply cites general
authority for when a COA should issue. In short, it is quite
questionable that the request can be considered. See FED. R. APP.
P. 28(a) (requiring an appellant's contention contain the reasons
he deserves the requested relief with citation to the authorities,
statutes, and parts of the record upon which he relies); e.g.,
Hughes v. Dretke, 412 F.3d 582, 597 (5th Cir.) (holding a
petitioner who summarily recites a claim for relief without
discussing its legal and factual basis, risks waiving it), cert.
denied, 126 S. Ct. 1347 (2006). Nevertheless, we will consider his
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request. Berry’s counsel are cautioned that, in the future, such
inadequate briefing may result in a COA request’s not being
considered.
A.
As an initial matter, Berry claims the district court erred by
not fully considering a memorandum attached as an exhibit (Grayson
Memo) to his federal habeas petition. That memorandum was filed in
Grayson v. Epps, 1:04 CV 708-B (S.D. Miss.). Pursuant to it, Berry
maintains no procedural default should be asserted against any of
his claims because of the claimed ineffective post-conviction
review process, or the absence of any meaningful corrective
process, in the State of Mississippi, as is required under 28
U.S.C. § 2254(b)(1)(B)(i) and (ii).
In district court, Berry asserted that, because of these
claimed inadequacies, the court should reject any proposed
procedural bars. That court held Berry waived this contention.
[Berry] repeatedly directs the Court to the
Grayson Memo in a blanket manner, offering no
argument in support thereof, without citing
any portion of it in the body or the petition
or supporting memorandum, and without offering
any explanation of how it is relevant to his
case. [Berry]’s argument is conclusory and
without requisite specificity or relevance to
this petition ... [; and,] under the standards
set forth by the AEDPA, the matter is waived.
Berry V, 2006 WL 2865064 at *5.
Berry’s contention here has the same defect. He simply
references the Grayson Memo without explaining how the state post-
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conviction review processes were defective; he merely states “a
review of said Memorandum makes clear how there was an absence of
available State corrective process in [Berry’s] case”.
Furthermore, Berry does not specify the type relief he seeks or
what claims should be resurrected, instead stating: “This Court
could decide all the issues differently that involved application
of the Memorandum. Thus, the [COA] should issue”. As held by the
district court, because Berry has failed to brief this contention
here, it is waived. See, e.g., Lookingbill v. Cockrell, 293 F.3d
256, 263 (5th Cir. 2002) (“Where a habeas petitioner fails to brief
an argument adequately, [this court] consider[s] it waived.”).
B.
As discussed, the conclusory COA request falls far short of
showing entitlement to a COA for any claim. In any event, for each
of the five claims for which Berry requests a COA, the district
court’s holding the state-court decision for each claim not
unreasonable under AEDPA is not debatable among reasonable jurists,
nor does any claim merit further development. Therefore, as
developed infra, a COA is denied for each claim.
1.
Following his arrest, Berry gave a statement to investigators
confessing to Mary Bounds’ murder. Pre-trial, Berry moved to
suppress that statement. For his first COA request, Berry
contends: because he and the State’s witnesses gave conflicting
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testimony on whether he was given his Miranda warnings, reasonable
jurists could differ as to the district court’s ruling that the
state-court decision (allowing admission of the confession) was not
unreasonable under AEDPA.
At the two-day pre-trial suppression hearing in October 1988,
Berry testified: Officers advised him he could have an attorney;
he requested one numerous times; and finally, he was given the
opportunity to call his attorney but could not reach him on a
Sunday. Police Investigator Gore testified as follows. Berry was
advised of his Miranda rights prior to his arrest and before he was
initially questioned at his grandmother’s home. Berry also asked
for, and was given, the opportunity to speak to an attorney when he
arrived at the jail. When Berry was brought to the jail’s office
to call his attorney, however, he stated: he no longer desired to
contact an attorney; and he was willing to talk to investigators
without an attorney’s being present. Officers again read Berry his
Miranda rights, at which point Berry confessed to the crime and
signed a statement regarding what transpired. This testimony was
supported by that of other Officers who were present at that time.
In denying the suppression motion, the trial court ruled: the
statement “was freely and voluntarily given; and the constitutional
requirements [as to its admissibility] were met”. At the first
trial, Investigator Gore read Berry’s statement to the jury.
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On direct appeal from that trial, the Mississippi Supreme
Court affirmed the trial court’s finding the statement was given
voluntarily and ruled that, even if Berry had sufficiently invoked
his right to counsel, he had “knowingly and intelligently” waived
it. Berry I, 575 So.2d at 6.
At his resentencing trial, Berry’s objection to the
introduction of the statement was overruled. The claim was again
presented to the Mississippi Supreme Court on appeal from that
trial. In this instance, that court held it procedurally barred.
Berry II, 703 So.2d at 290-91. (In the alternative, the court
addressed the merits of the claim and found no error. Id.)
In his state-habeas petition, Berry took issue with the ruling
at the resentencing trial not to allow him the opportunity to
attack the confession or to argue to the jury how it was procured,
essentially to rebut evidence during sentencing which had been
found admissible at the first trial’s guilt/innocent phase. The
state-habeas court found: although defendants should be given
broad latitude in introducing mitigating evidence during
sentencing, Berry did not state how an attack on the confession
would constitute such evidence. Berry IV, 882 So.2d at 168.
Furthermore, the state-habeas court ruled Berry was not entitled to
argue “residual doubt” during the resentencing trial as to evidence
deemed admissible during his first trial. Id.-13-
In denying relief on this claim, the district court noted:
Berry refused to call an attorney when law enforcement officials
attempted to satisfy his request to speak with one; and Berry
waived his right to counsel when he agreed to give a statement
without counsel’s being present. Berry V, 2006 WL 2865064 at *8-9.
The district court held: “[T]he giving of Miranda warnings and
subsequent waiver of the right to counsel meets the burden of
making [Berry] aware of his right, and the possible consequences of
for[e]going that right, thereby making the waiver sufficiently
knowing and intelligent”. Id. at *9. Pursuant to AEDPA, it held:
because the state-habeas court’s factual findings were reasonable
and its decision was neither contrary to, nor an unreasonable
application of, clearly established Supreme Court precedent, Berry
was not entitled to federal habeas relief.
For COA purposes, Berry notes that the state court, not the
jury, decided admissibility of his confession, and claims: that
court’s factfinding is not entitled under AEDPA to the deference
accorded factfinding by a jury; and, at the suppression hearing,
the state court should have believed his testimony over that of the
Officers. To the contrary, the Mississippi Supreme Court, both on
direct appeal and as the state-habeas court, found sufficient
evidence to support the trial court’s decision; as noted,
Investigator Gore’s testimony was supported by that of other
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Officers who testified that Berry knowingly and voluntarily waived
his right to counsel for this claim.
Generally, under AEDPA, “[a] credibility determination by the
state ... court ... is afforded deference”. Coleman v. Quarterman,
456 F.3d 537, 541 (5th Cir. 2006); Miller-El, 537 U.S. at 340 (“A
federal court's collateral review of a state-court decision must be
consistent with the respect due state courts in our federal system.
Where 28 U.S.C. § 2254 applies, our habeas jurisprudence embodies
this deference.”). Berry fails to satisfy the standard for
obtaining a COA for this claim.
2.
Prior to his first trial, Berry moved for a change of venue
due to claimed extensive pretrial publicity and the prominence of
the victim in the county, contending not doing so would be
violative of the Sixth, Eighth, and Fourteenth Amendments. At the
2 September 1988 hearing on the motion, 11 community witnesses
testified Berry could get a fair trial. On cross-examination of
the three witnesses presented by Berry, the local-newspaper
publisher admitted Berry would receive a fair trial; the other two
admitted they were related to Berry by marriage.
The trial court ruled no evidence warranted a venue change.
It also denied Berry’s motion for a county-wide venire, pursuant to
Mississippi Code Annotated § 13-5-21, because venire members from
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the court’s judicial district were not prejudiced and would be able
to serve.
On appeal, the Mississippi Supreme Court found no abuse of
discretion in the denial of the change-of-venue motion. Berry I,
515 So.2d at 9. As noted, venue was changed for the resentencing
trial. See Berry II, 703 So.2d at 273. (Although he did not seek
federal habeas relief on this point, Berry claimed in his state-
habeas petition that he received IAC due to not obtaining a venue
change for the first trial. The state-habeas court applied the
well-established two-part test in Strickland, 466 U.S. at 687:
counsel’s performance must be deficient; and that deficiency caused
prejudice. It held that, even assuming deficient performance,
there was no prejudice because such performance did not deprive
Berry of a fair trial. Berry IV, 882 So.2d at 162.)
In his federal habeas application, Berry claimed: due to the
community atmosphere, he was deprived of his right to a fair and
impartial jury by the trial court’s denial of his change-of-venue
motion. In support, Berry asserted: the community interest
generated substantial discussion about his crime, as did many
newspaper articles; extraneous information influenced the jury’s
verdict; and the trial court did not question prospective jurors
individually, leading to situations in which a venire member
answered questions in the same way as had other members. In the
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alternative, Berry contended he was entitled to a county-wide
venire.
The district court held: because Berry did not show either
inflammatory pretrial publicity or juror bias, see Busby v. Dretke,
359 F.3d 708, 725-726 (5th Cir. 2004), he did not suffer any
prejudice; therefore, under AEDPA, the Mississippi Supreme Court
was not unreasonable in holding there was no abuse of discretion in
the trial court’s denying the motion. Berry V, 2006 WL 2865064 at
*12. It also held the trial court’s denying a county-wide venire
was a matter of state law, not subject to federal habeas review,
citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Id.Finally, the court ruled Berry’s contention about the trial court’s
failure to question jurors individually had no legal or factual
support. Id.Berry seeks a COA for his claim that the Mississippi Supreme
Court failed to consider fully the preconceived notions held by
venire members and the effect that talking about the crime had on
such members. Berry fails to meet the standard for obtaining a COA
because he fails to show reasonable jurists would question the
district court’s rulings. In that regard, in district court, Berry
did not demonstrate pretrial publicity was so inflammatory that it
saturated the community so as to render a fair trial virtually
impossible, Mayola v. Alabama, 623 F.2d 992, 997 (5th Cir. 1980);
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and furthermore, he failed to show any juror bias, e.g., Busby, 359
F.3d at 725-26.
3.
Berry next requests a COA for an IAC claim. As discussed
supra, Berry was required to demonstrate in state court both that
such performance was deficient, and that it prejudiced his defense.
Strickland, 466 U.S. at 687. Under AEDPA, review by the district
court was limited to whether the state-court’s IAC decision was
unreasonable.
For that purpose, counsel’s performance is deficient if it
falls “below an objective standard of reasonableness”. Id. at 688.
There is a “strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance”. Id. at 689.
To establish prejudice, Berry was required in state court to
demonstrate there was a “reasonable probability that but for
counsel’s unprofessional errors, the result of the proceeding would
have been different”. Id. at 694. “A reasonable probability is
one that is sufficient to undermine confidence in the outcome.”
Id.Of the numerous IAC claims raised in his federal habeas
application, Berry requests a COA only for such claims relating to
two separate occurrences during his resentencing trial. The first
claim is that counsel was ineffective because he failed to object
to Berry’s being described as a “habitual offender” during voir
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dire. The second claim is that counsel failed to “proper[ly]
record” the prosecutor’s engaging in theatrics by stomping around
the victim’s clothes, which were lying on the floor, during closing
argument when describing how Mary Bounds was hit, an act Berry
contends was inflammatory and prejudicial; Berry claims this issue
has not been properly reviewed in either the state or federal
proceedings. For this COA request, Berry references, again without
discussion, the earlier-described Grayson Memo.
a.
Concerning the requested COA for the habitual-offender claim,
the Mississippi Supreme Court, on appeal from Berry’s first trial,
held “compelling reasons” supported the requirement that a jury
should have been made aware that Berry’s status as a habitual
offender meant a “life” sentence means “life without parole”.
Berry I, 575 So.2d at 13. At the resentencing trial, the court
disclosed during voir dire that Berry was a habitual offender and
included this in its instructions. Berry IV, 882 So.2d at 163.
Berry appealed the use of the trial court’s language, contending it
was improper under Mississippi Rule of Evidence 404(b) (prohibiting
evidence of prior offenses to show party acted in conformity with
past behavior). The Mississippi Supreme Court held Berry’s claim
procedurally barred because his counsel had not objected to the use
of the statements. Berry II, 703 So.2d at 277.
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In his state-habeas petition, Berry claimed: counsel was
ineffective for failing to object to either the trial court’s
statements or its sentencing instructions which stated he was a
habitual offender. The state-habeas court held Berry’s claim
unfounded; the resentencing court was merely applying the
Mississippi Supreme Court’s holding in Berry I and, therefore,
there was no basis for an objection. Berry IV, 882 So.2d at 163.
The district court found Berry’s counsel did object twice to
the resentencing court’s use of the words “habitual criminal”, in
both a motion in limine and an oral objection to the instructions,
whereupon the resentencing court made clear it was following the
directives of Berry I. Accordingly, the district court ruled
Berry’s counsel acted reasonably and “owed no duty to continue
objecting”. Berry V, 2006 WL 2865064 at *21.
b.
Concerning the requested COA for the prosecutorial-theatrics
claim, the prosecutor, while stomping on the floor during closing
argument said: “But what did he do, he struck her and struck her
and struck her. He stomped her”. Berry’s counsel objected and
asked that the record reflect the prosecutor was “stomping on the
floor”. The Mississippi Supreme Court held on appeal: while
theatrical, it was difficult to determine the egregiousness of the
prosecution’s demonstration; it was brief and conducted while the
prosecutor was arguing the facts. Berry II, 703 So.2d at 280-81.
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That court held: even though the trial court sustained Berry’s
objections to these theatrics, because counsel subsequently did not
ask the jury to disregard the objectionable behavior, there was no
error, pursuant to state rule. Id.In his state and federal habeas petitions, Berry raised the
claim as an IAC claim. The state-habeas court denied it, finding
the matter had been considered previously in Berry II and no
prosecutorial misconduct had been found. Berry IV, 882 So.2d at
165. The district court also denied Berry’s claim, holding defense
counsel did object and thus acted reasonably; further objections
might have drawn too much attention to the matter. Berry V, 2006
WL 2865064 at *22.
c.
For relief on either IAC claim, the district court noted,
Berry was required to show the Mississippi Supreme Court’s
application of Strickland was unreasonable under AEDPA. For each
of the two IAC claims for which a COA is requested, reasonable
jurists would not dispute the district court’s holding, under
AEDPA, that counsel’s performance was not deficient; he did object
in both situations to what he felt was prejudicial conduct. E.g.,
Parr v. Quarterman, 472 F.3d 245, 256 (5th Cir. 2006) (holding
counsel’s errors must be so serious that counsel was not
functioning as the “counsel” guaranteed in the Sixth Amendment).
To continue to object on the habitual-offender issue or the
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prosecutorial-theatrics issue would have belabored the point and
might have given it more attention then it was due.
4.
Regarding the four instances of claimed prosecutorial
misconduct at his resentencing trial for which he sought federal
habeas relief, Berry next requests a COA for his claim that the
prosecutor’s seeking the death penalty at the resentencing trial
was for vindictive purposes and, therefore, constituted
prosecutorial misconduct. For his first trial, Berry was offered,
but refused, a lesser sentence which did not include the death
penalty. This offer was not renewed, however, for his resentencing
trial.
Accordingly, prior to that trial, Berry moved to bar the State
from seeking the death penalty. Berry moved the court to enter a
life sentence based upon what counsel alleged to be the arbitrary
application of the death penalty; in support, Berry cited analogous
cases where a plea bargain had been offered the defendant. The
State distinguished those cases, claiming they involved defendants
and victims who were family members. The motion was denied.
On appeal, the Mississippi Supreme Court found Berry proffered
no evidence to show plea bargains were offered to defendants in an
arbitrary manner. The court noted: the prosecutor properly
distinguished the two cases submitted by Berry where plea bargains
were offered; and, moreover, Berry had “no constitutional right to
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a plea bargain”. Berry II, 703 So.2d at 282 (quoting Weatherford
v. Bursey, 429 U.S. 545, 561 (1977)).
Berry raised the claim again in the state-habeas proceeding.
The state-habeas court noted the claim had been already rejected on
appeal in Berry II and, in any event, found the prosecutor’s
conduct did not deprive Berry of a fundamentally fair trial. Berry
IV, 882 So.2d at 166.
In holding the state-court decision on this claim was not
unreasonable under AEDPA, the district court was persuaded by the
State’s claim that it was not required to renew a plea offer that
had previously been rejected once Berry put the State to its proof
and received an adverse result. Berry V, 2006 WL 2865064 at *31.
Therefore, it held: “[I]n [the] light of the discretion afforded
prosecutors and the lack of evidence of arbitrariness”, Berry could
not show a substantial denial of a constitutional right. Id. at
*32.
In seeking a COA for this prosecutorial-misconduct claim,
Berry maintains erroneously that the district court failed to fully
address the claim. As discussed, Berry does not have a
constitutional right to plea bargain. Therefore, as long as the
prosecutor acts
[w]ithin the limits set by the legislature’s
constitutionally valid definition of
chargeable offenses, the conscious exercise of
some selectivity in enforcement is not in
itself a federal constitutional violation so
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long as the selection was not deliberately
based upon an unjustifiable standard such as
race, religion, or other arbitrary
classification.
Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (internal
citations and quotations omitted). For COA purposes, Berry has not
presented any evidence of arbitrariness (or sought to rebut the
manner in which the State distinguished the cases he submitted).
In sum, he fails to satisfy the standard for receiving a COA for
this claim.
5.
Berry’s fifth, and final, COA request concerns the claimed
improper admission at resentencing of 15 photographs and one
videotape of the victim’s body and surrounding crime scene. For
this COA request, Berry contends the district court erred in
denying habeas relief without reviewing this evidence, which he
asserts was used solely to inflame and prejudice the jury. The
federal habeas court was unable to locate the photographs and
videotape because Berry did not provide them for the court’s
review. Berry complains, however, that the evidence was within the
State’s possession and to deny relief based on his inability to
produce it for federal-habeas review was “unconscionable”.
In his appeal from his first trial, Berry presented an
evidentiary challenge to the photographs’ admissibility. The
Mississippi Supreme Court ruled their admission was within the
sound discretion of the trial court. Berry I, 575 So.2d at 10. On
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appeal from Berry’s resentencing trial, the state supreme court
again affirmed the use of the photographs, as well as the
videotape, ruling they were proof of the requisite “heinous”
aggravating circumstances. In addition, although it ruled the
subsequent use of the evidence in closing argument was only to
inflame the jury, it held such conduct was not so prejudicial as to
deny Berry a fair trial, especially given the “wide latitude”
afforded closing arguments. Berry II, 703 So.2d at 277-78.
As noted, the district court was not able to view the evidence
at issue. In any event, it addressed two claims by Berry: the
admission of the evidence was improper; and the prosecutor’s use of
that evidence denied Berry a fair trial. As to admissibility, the
district court held: evidentiary rulings are not cognizable on
federal habeas review, unless a specific constitutional right was
impeded or the ruling rendered the trial fundamentally unfair.
Berry V, 2006 WL 2865064 at *32 (citing Cupit v. Whitley, 28 F.3d
532, 536 (5th Cir. 1994)). Because the evidence was introduced to
supplement an Officer’s testimony regarding the crime scene, they
were held to be relevant and their admission not in error.
Regarding the prosecutor’s use of the evidence during closing
argument, the district court ruled: there was substantial evidence
on which to base its decision; and the use of the such evidence did
not deny Berry a fundamentally fair trial. Id. at *33 (citing
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Smith v. Phillips, 455 U.S. 209, 219 (1982)). Accordingly, it held
the state-court decision was not unreasonable under AEDPA.
Berry does not specifically contest these rulings. Nor does
he state, much less justify, why he did not present the contested
evidence for review by the district court. Moreover, for COA
purposes, he totally fails to show he was denied a fundamentally
fair trial by the admission of the evidence. Therefore, as with
his other COA requests, he fails to show he is entitled to a COA
for this claim.
III.
For the foregoing reasons, a COA is
DENIED.
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