Dora v. Mississippi Department of Corrections , 467 F. App'x 339 ( 2012 )

Case: 11-60103 Document: 00511882652 Page: 1 Date Filed: 06/11/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 11, 2012
No. 11-60103
Summary Calendar Lyle W. Cayce
Clerk
TERRY DORA,
Petitioner - Appellant
v.
MISSISSIPPI DEPARTMENT OF CORRECTIONS; WARDEN FLORENCE
JONES; LAWRENCE KELLY,
Respondents - Appellees
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:08-CV-170
Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Pursuant to a certificate of appealability (COA) granted by the district
court, Terry Dora, Mississippi prisoner # R2153, challenges the denial of his 28
U.S.C. § 2254 habeas petition. It challenged his jury-trial conviction for
possession of more than 30 grams of cocaine, for which he was sentenced to 60-
years’ imprisonment.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 11-60103 Document: 00511882652 Page: 2 Date Filed: 06/11/2012
No. 11-60103
Dora moved our court to expand the COA to include additional claims
addressed in his brief, but our court denied that motion. Therefore, our court
has jurisdiction to review only the two claims of prosecutorial misconduct that
the district court certified. 28 U.S.C. § 2253(c); Carty v. Thaler, 583 F.3d 244,
266 (5th Cir. 2009).
Dora contends the district court erred in rejecting his claim that the
prosecutor’s closing argument violated his Fifth Amendment privilege against
self-incrimination. A prosecutor’s comment on defendant’s decision not to testify
warrants habeas relief only if it “had substantial and injurious effect or influence
in determining the jury’s verdict”. Brecht v. Abrahamson, 507 U.S. 619, 627
(1993) (internal quotation marks and citation omitted); see also Fry v. Pliler, 551
U.S. 112, 120 (2007) (holding Brecht harmless-error standard “subsumes”
deference owed under § 2254(d) to state court’s denial of such constitutional
claim on merits). In the light of the evidence presented at his trial, Dora failed
to make such a showing.
Although he contends the closing argument also violated the Mississippi
Constitution, “federal habeas corpus relief does not lie for errors of state law”.
E.g., Estelle v. McGuire, 502 U.S. 62, 67 (1991) (internal quotation marks
omitted). In addition, Dora contends, for the first time in his reply brief, that the
prosecutor made other improper comments. “This court does not entertain
arguments raised for the first time in a reply brief.” United States v. Ramirez,
557 F.3d 200, 203 (5th Cir. 2009).
Relying on Brady v. Maryland, 373 U.S. 83 (1963), Dora contends the
State violated his due-process rights by failing to inform him prior to trial that
a witness intended to incriminate Dora and to recant her previous statement
that the cocaine in question belonged to her. Dora does not, however, dispute
the district court’s finding that the State disclosed the witness’ initial statement.
The Brady rule “applies only to impeachment and exculpatory evidence; neutral
or inculpatory evidence lies outside its coverage”. United States v. Nixon, 881
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Case: 11-60103 Document: 00511882652 Page: 3 Date Filed: 06/11/2012
No. 11-60103
F.2d 1305, 1308 (5th Cir. 1989). In addition, evidence is material and therefore
subject to disclosure under Brady “only if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding
would have been different”. United States v. Bagley, 473 U.S. 667, 682 (1985).
Dora fails to show the district court erred in ruling that the witness’ intent to
incriminate Dora fell outside the scope of Brady.
AFFIRMED.
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