                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-1372
                                  ___________

Moyad Abdullah Alidani,               *
                                      *
             Appellant,               *
                                      * Appeal from the United States
       v.                             * District Court for the District of
                                      * South Dakota.
Bob Dooley, Warden of the Durfee      *
State Prison, Springfield, South      *
Dakota,                               * [PUBLISHED]
                                      *
             Appellee.                *
                                 ___________

                            Submitted: February 10, 2004

                                 Filed: April 23, 2004
                                 ___________


Before RILEY and RICHARD S. ARNOLD, Circuit Judges, and HOVLAND,1
      District Judge.
                            ___________

HOVLAND, District Judge.




      1
        The Honorable Daniel L. Hovland, Chief Judge, United States District Court
for the District of North Dakota, sitting by designation.
       Moyad Abdullah Alidani appeals the denial of his 28 U.S.C. § 2254 habeas
corpus petition. Alidani claims that the district court2 erred by dismissing his petition
and that he was denied due process and a fair trial due to the trial judge’s comments
and the ineffective assistance of counsel because his attorney failed to make an
immediate motion for mistrial based on the trial judge’s comments. For the reasons
stated below, we affirm.

I.    FACTUAL BACKGROUND

      The record reveals that the defendant, Moyad Abdullah Alidani, lived with his
brother, Mansour Alidani, in an apartment in Sioux Falls, South Dakota. A woman
by the name of Roxanne Helm and her husband, along with Helm’s children (the
seven-year-old victim and her younger brother) lived in an apartment directly above
the Alidanis in August of 1997. In October of 1997, Roxanne Helm and her children
moved into the Alidanis’ one-bedroom apartment after a marital dispute and, within
a short period of time, Roxanne Helm developed a romantic relationship with
Mansour Alidani.

      In early November 1997, the Alidani brothers, Roxanne Helm, and her two
children moved into another apartment complex in Sioux Falls. Alidani’s sexual
contact with the victim took place in the apartment when the victim was alone with
Alidani. The victim was seven years old at the time the sexual contact occurred.
Moyad Abdullahh Alidani was 29 years old.

     In April of 1998, the victim was visiting at her grandmother’s house when the
grandmother noticed that the victim was scratching her vaginal area. The
grandmother took the victim into the bathroom and noted that her vaginal area was


      2
        The Honorable Lawrence L. Piersol, Chief Judge, United States District
Court, District of South Dakota.

                                          -2-
“all chapped and raw” “almost to the point of bleeding.” The victim then reluctantly
told her grandmother that Alidani had inappropriately touched her. The record
reveals that Alidani had exposed himself to the minor victim and also had the victim
touch his penis and masturbate him to ejaculation.

       Alidani was indicted by a Minnehaha County, South Dakota, grand jury for
sexual contact with a minor in violation of South Dakota Codified Laws Section 22-
22-7. A jury trial was held in state court in South Dakota in December 1998, and
Alidani was found guilty as charged. On April 19, 2000, Alidani’s conviction and
sentence were affirmed by the South Dakota Supreme Court. State v. Alidani, 609
N.W.2d 152 (S.D. 2000). Alidani then filed an application for writ of habeas corpus
in state court which was denied on the merits. On June 12, 2001, the South Dakota
Supreme Court denied Alidani’s motion for certificate of probable cause to appeal the
denial of his petition for habeas corpus relief.

        On August 2, 2001, Alidani filed a federal 28 U.S.C. § 2254 habeas petition in
the district court of South Dakota asserting that he was denied due process and a fair
trial, and that he received ineffective assistance of counsel. On December 24, 2002,
the district court issued a Memorandum Opinion and Order denying Alidani’s petition
for habeas corpus relief.

        On April 22, 2003, the district court issued a certificate of appealability under
28 U.S.C. § 2253(c). Alidani contends that his constitutional right to due process and
a fair trial were violated because of the trial judge’s comments to the minor victim
that she did not have to take the oath again and by saying to her, “I know you’re
going to tell the truth.” Alidani asserts that he received ineffective assistance of
counsel because his attorney failed to make an immediate motion for mistrial based
upon the trial judge’s comments to the victim.




                                          -3-
       During the trial, the seven-year-old victim testified during the state’s case-in-
chief and was also called by the state to testify on rebuttal. At the time the victim was
called as a rebuttal witness, the victim had already testified twice under oath – once
at a pretrial hearing to determine her capacity for truthfulness and a second time at the
trial. At trial, during her first appearance as a witness, the victim’s testimony was
directed to the issue of the sexual contact. The following day the victim again took
the witness stand on rebuttal. The victim’s rebuttal testimony was directed to the
issue of whether anyone had made any promises to her. When the victim took the
witness stand on rebuttal, she immediately put her hand in the air to take the oath
again. The trial court apparently felt that it was unnecessary to again render the oath
to her and made the following statement to the victim: “When you were here
yesterday we gave you an oath to tell the truth, and remember, that just means that
everything that you saw with your eyes and that you heard with your ears. Are you
all set? You don't have to do it again. I know you're going to tell the truth.”

      The victim then testified briefly on rebuttal and said that her mother had
promised her that if the defendant, Moyad Abdullah Alidani, did not go to jail, his
brother, Mansour Alidani, would buy her “lots of toys.” There was no cross-
examination of the witness and no objection made to the trial court’s comments.

       The following morning, and prior to the submission of the case to the jury,
counsel for Alidani moved for a mistrial based on the trial court’s comments. The
basis for the motion was the contention that the trial court had vouched for the
truthfulness of the victim. The trial court denied the motion and stated on the record
as follows:

      The court: Okay. I would state that my statement to her when – after
      we had gone through the swearing and everything she raised her hand
      again. We all understand that she raised her hand again and I wanted
      her to know that she did not need to take another oath. My comments
      to her that we know that you're going to tell truth is an expectation we

                                          -4-
      have of all witnesses. In addition, I would say that when we are dealing
      with seven– or an eight-year-old child that just turned eight, we deal a
      little different with that witness than anybody else. But frankly, that’s
      a comment that I would make to any witness in terms of my expectation
      of that witness. When we say we know you are going to tell the truth as
      an expectation on the part of the witness, and I think the jury views it as
      such, particularly when you are dealing with a girl who’s just turning
      eight. So in addition I think it went by so quickly that there's no way
      that it would have any significant impact on this trial. I’m not even sure
      that, frankly, that it registered with the jury in light of what's happening
      at the time. So your motion is noted and I don’t feel it has in any way
      infringed on your client's right to a fair trial, particularly in light of the
      fact that I was present when it occurred and I think it surprised us all
      when she suddenly stuck her hand up in the air again to take the oath,
      either for the second or third time. And I wanted her to know that, you
      know, we trust you,[the victim], and this is not an aggressive, alien,
      unpleasant atmosphere and you should be comfortable here, and that’s
      what my comment went to.

      The trial court gave the jury the following cautionary instructions at the
conclusion of the trial:

      My actions during the trial and ruling on objections by counsel, or in
      comments to counsel, were in setting forth the law and these instructions
      are not to be taken by you as my opinion as to how this jury should
      determine the issues of fact. What the verdict shall be is your sole and
      exclusive responsibility.

      Two judges preside over this case; the judge of the facts–you, the jury
      and the judge of the law, who is I. My function will be to preside over
      this trial to see that it proceeds in a fair, orderly, and efficient manner.
      I must also rule on questions of law arising during the trial and instruct
      you as to the law of the case. I am neutral in this case. You should not
      take anything I may say or do during the trial as indicating what I think
      of the evidence or what I think your verdict should be.



                                           -5-
      Alidani did not request any special instructions to the jury regarding the trial
court’s comments.

        Alidani was ultimately found guilty and sentenced to serve 15 years in the state
penitentiary with 8 years suspended. Alidani contends that the trial court’s statement
(“I know you’re going to tell the truth”) put the court’s stamp of authority on the
victim’s testimony, which he asserts is a violation of due process and his right to a
fair trial.

II.   LEGAL DISCUSSION

       28 U.S.C. § 2254(d) provides that an application from a state prisoner for a
writ of habeas corpus shall not be granted unless the state adjudication resulted in a
decision that (1) “was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States”
or (2) “was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1) and (2).
To satisfy the “contrary to” test under 28 U.S.C. §2254(d)(1), the applicant must
present a case which reaches a different result from governing United States Supreme
Court precedent “on materially indistinguishable facts.” Williams v. Taylor, 529 U.S.
362, 405 (2000). Alidani has acknowledged that this case is materially
distinguishable from any governing United States Supreme Court precedent. We
agree. However, the United States Supreme Court decision in Quercia v. United
States, 289 U.S. 466 (1933), raises some questions that warrant discussion.

       In Quercia v. United States, the defendant had been charged with violating the
Narcotic Act. The case went to trial during which the defendant testified and
presented a general denial of all charges. Following the presentation of the evidence,
the trial court instructed the jury, in part, as follows:



                                          -6-
      And now I am going to tell you what I think of the defendant’s
      testimony. You may have noticed, Mr. Foreman and gentlemen, that he
      wiped his hands during his testimony. It is rather a curious thing, but
      that is almost always an indication of lying. Why it should be so we
      don’t know, but that is the fact. I think that every single word that man
      said, except when he agreed with the Government’s testimony, was a lie.

      Now, that opinion is an opinion of evidence and is not binding on you,
      and if you don’t agree with it, it is your duty to find him not guilty.

Quercia v. United States, 289 U.S. 466, 468-469 (1933) (emphasis added).

      Supreme Court Justice Hughes delivered the opinion of the court and made the
following observation:

      This privilege of the judge to comment on the facts has its inherent
      limitations. His discretion is not arbitrary and uncontrolled, but judicial,
      to be exercised in conformity with the standards governing the judicial
      office. In commenting upon testimony he may not assume the role of a
      witness. He may analyze and dissect the evidence, but he may not either
      distort it or add to it. His privilege of comment in order to give
      appropriate assistance to the jury is too important to be left without
      safeguards against abuses. The influence of the trial judge on the jury
      “is necessarily and properly of great weight” and “his lightest word or
      intimation is received with deference, and may prove controlling.” This
      court has accordingly emphasized the duty of the trial judge to use great
      care that an expression of opinion upon the evidence “should be so
      given as not to mislead, and especially that it should not be one-sided”;
      that “deductions and theories not warranted by the evidence should be
      studiously avoided.”

289 U.S. 466, 470.

      The United States Supreme Court concluded that the trial court had
overstepped its bounds and the judge had put his own experience, with all the weight

                                          -7-
to be attached to it, on the scale against the accused. The Supreme Court held that the
trial court’s egregious comments resulted in highly prejudicial error that warranted
a reversal. 289 U.S. 466, 472.

       In a similar vein, this court in United States v. Singer, 710 F.2d 431 (1983)(en
banc), held that the district court had so far injected itself into the trial as to give the
jury the impression that it favored the prosecution and thereby deprived the
defendants of a fair trial. In United States v. Singer, the record was replete with
overwhelming evidence that the trial court had unduly intruded into the trial by
reason of the judge’s comments and excessive questioning of witnesses that was
admittedly designed to assist the “overwhelmed” government attorneys. The trial
court’s comments were, in almost all instances, designed to clarify the government
witnesses’ testimony, to assist the government counsel, to indicate to government
counsel when he should or should not make objections, to instruct government
counsel on how to make the evidence more intelligible to the jury, and to suggest to
government counsel how to properly examine or cross-examine a witness. 710 F.2d
431, 436. The trial court had not simply made a few isolated and arguably improper
comments. Instead, the trial court had injected himself into the trial throughout the
entire proceedings, and his comments clearly pervaded the overall fairness of the trial.
Id. As a result, this Court, on rehearing en banc, concluded that the defendants had
been so prejudiced as to deprive them of a fair and impartial trial.

       We believe that the present case is readily distinguishable from the precedent
of the Supreme Court of the United States as established in Quercia v.United States.
The present case is also distinguishable from the precedent of this Court in United
States v. Singer. The trial court in each of these cases had actively injected himself
into the entire trial proceedings and had made extremely prejudicial comments that
pervaded the overall fairness of the trial and which tended to accentuate and
emphasize the government’s case. More important, the trial court’s charge to the jury
in Quercia concerning the defendant’s credibility was extremely egregious and

                                            -8-
prejudicial because the trial court addressed the jury and specifically informed the
jury that “every single word that man (the defendant) said... was a lie.” The present
case is clearly distinguishable from the facts in Quercia and the highly prejudicial
comments made by the trial court to the jury. Alidani has not met his burden and has
failed to satisfy the “contrary to” test under 28 U.S.C. § 2254(d)(1).

       As a result of having failed to satisfy 28 U.S.C. § 2254(d)(1), Alidani then
asserts that he has satisfied 28 U.S.C. § 2254(d)(2) and argues that the determination
the trial judge’s comment was not prejudicial was an unreasonable determination of
the facts in light of the evidence presented in the state court proceeding. It is clear
that the parties agree to nearly all of the underlying facts. The disputed issue is
whether one underlying fact–the trial court's statement, “I know you're going to tell
the truth,” was prejudicial to Alidani and resulted in a denial of due process and a fair
trial. Alidani has made no clear and convincing showing that the jury was impacted
by the judge’s statement. See 28 U.S.C. § 2254(e)(1).

       The context of the comments made by the trial court must be carefully
considered in the analysis of the issues presented. The challenged comments by the
trial court were made on rebuttal the day after the state rested its case and
immediately preceding the testimony from the victim. The trial court’s comments
were made in the context of the court explaining to the young victim that she need not
take the oath again. The isolated comment to the witness was simply a reminder to
the child that she was still under oath to tell the truth. There is no showing that the
timing and the context of the trial court's comments prejudiced Alidani or had any
effect on the jury.

      We agree with the South Dakota Supreme Court which noted that the trial
court’s comments could have been made with more judicial clarity. State v. Alidani,
609 N.W.2d 152, 156 (S.D. 2000). However, there has been no showing of any intent
on the part of the trial court to vouch for the credibility of the victim/witness, to

                                          -9-
remove the question of the victim's credibility from the jury, or to enhance her status
with the jury. The trial court’s statement taken in context was not a statement
vouching for the victim's credibility. Instead, the statement was designed to calm a
young, seven-year-old victim of a sexual crime and was made in the context of the
trial court’s expectation of the witness to tell the truth.

      The trial court also gave the jury several cautionary instructions concerning any
personal comments made by the judge during the trial as well as closing instructions
concerning the role of the jury. Under this record and in this factual context, Alidani
has not met his burden of establishing error.

       Finally, Alidani contends that he received ineffective assistance of counsel
because his trial attorney failed to make an immediate motion for mistrial based on
the trial judge’s comment to the victim. The record reveals that the motion for
mistrial was made the next morning in chambers. In order to prevail on the claim of
ineffective assistance of counsel, Alidani must satisfy the tests set forth in Strickland
v. Washington, 466 U.S. 668, 687 (1984), and he must demonstrate deficient
performance and prejudice.

      The United States Supreme Court has set forth a two-part test for evaluating
ineffective assistance of counsel claims:

      First, the defendant must show that counsel’s performance was deficient.
      This requires showing that counsel made errors so serious that counsel
      was not functioning as the “counsel” guaranteed the defendant by the
      Sixth Amendment. Second, the defendant must show that the deficient
      performance prejudiced the defense. This requires showing that
      counsel’s errors were so serious as to deprive the defendant of a fair
      trial, a trial whose result is reliable. Unless a defendant makes both
      showings, it cannot be said that the conviction or... sentence resulted
      from a breakdown in the adversary process that renders the result
      unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984).

                                          -10-
        To satisfy the first prong, the movant must demonstrate that counsel’s
performance “fell below an objective standard of reasonableness.” 466 U.S. at 688.
There is a “strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Id. at 689. To satisfy the second prong, the
movant must demonstrate that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at
694. We agree with the district court’s finding that there is no reasonable probability
that if an immediate objection or a motion for mistrial had been made, that the result
of the trial would have been different. As a result, Alidani has failed to demonstrate
deficient performance or prejudice.

III.   CONCLUSION

      For the reasons stated above, we affirm the district court’s denial of Alidani's
28 U.S.C. § 2254 application for habeas corpus relief.

RICHARD S. ARNOLD, Circuit Judge, dissenting.

      The Court rightly points out that on review of an application from a state
prisoner for a writ of habeas corpus the writ "shall not be granted unless the state
adjudication resulted in a decision that (1) 'was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States' or (2) 'was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.' " Ante at 6. The Court also rightly acknowledges that the central
question in our current review is whether the trial judge's denial of Mr. Alidani's
mistrial motion was contrary to existing Supreme Court precedent. Ibid., and see
Williams v. Taylor, 529 U.S. 362, 405 (2000) ("A state-court decision will certainly
be contrary to our clearly established precedent if the state court applies a rule that
contradicts the governing law set forth in our cases.").

                                         -11-
      Unlike the Court, however, I believe the South Dakota trial judge's denial of
the motion for mistrial contradicts Quercia v. United States, 259 U.S. 466 (1933).
Therefore, I respectfully dissent.

       The statute requires, in order to satisfy the "contrary to" portion of 28 U.S.C.
§ 2254, that the petitioner must show that the state courts in his case reached a result
different from governing precedent from the Supreme Court of the United States "on
materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 405 (2000).
I do not contest the Court's factual summary of Quercia, but I do question the Court's
attempt at distinguishing the legal conclusions reached by that case. Quercia stands
not merely for the minimal claim that a trial judge is prohibited from making only
"extremely egregious and prejudicial" comments as to the credibility of a witness.
Ante at 8. Instead, the case holds that it is almost always reversible error for a trial
judge, by injecting his own opinion into the analysis, to intrude on, and thus take
away from, the defendant's right to have the jury weigh the credibility of a witness.
Quercia, 289 U.S. at 471.

        In the present case, by declaring in front of the jury that he knew the victim-
witness would tell the truth, the trial judge exceeded his role as "governor of the
trial," and took on the jury's assigned task. Id. at 469, 471. Comments of a trial judge
as to a witness's credibility are "of a sort most likely to remain firmly lodged in the
memory of the jury and to excite a prejudice which would preclude a fair and
dispassionate consideration of the evidence." Id. at 472. There could be exceptions
to this rule, of course. There are always exceptions. For example, if the witness as
to whom the offending comment was made has his testimony stricken for some
reason, or if the witness is on the stand only briefly and gives truly inconsequential
testimony, I could see a basis for letting the conviction stand notwithstanding the
comments of the trial judge. Nothing of the kind occurred here, however.




                                         -12-
        What are the factors that might serve to distinguish Quercia from the present
case? The Court seems to place considerable weight on the trial judge's subjective
intention — he did not mean to affect the jury's deliberation. I do not believe that this
factor can be controlling or even relevant in this context. The important thing is what
the jury heard. That is all they know about the judge's intention. I would look to
what was said, and not to what the judge intended. There are some things that a trial
judge should just not say, whatever his intent. The case at hand is a good example.
It is not for trial judges to weigh credibility in jury cases. The comment here intruded
on the defendant's right to have the issue of credibility determined by the jury only.
It is important to remember that this case came down to a swearing match. Was the
defendant telling the truth, or was the prosecuting witness? So the judge's comments
went straight to the heart of the key issue that the jury had to decide.3



       It may be true, as the Court says, that the facts in Quercia were "worse" than
the facts here.4 In Quercia, the comment related to the credibility of the defendant


      3
        The trial court, in stating its intention the morning after the comments were
made, said that one of his reasons for making the statement was to let the witness
know that "we trust you." This comment reinforces the position I am taking, I think.
It is not for judges to say out loud, in front of a jury, that they trust one witness or
another. Here, of course, the comment was out loud but not in front of the jury, but
it was indicative of the judge's intention in making the comment the previous day,
which the jury did hear.

      4
        The Court cites and discusses United States v. Singer, 710 F.2d 431 (1983) (en
banc). I am not sure if citation to a circuit opinion is relevant in applying 28 U.S.C.
§ 2254(d)(1). The statute seems to limit our consideration to previous Supreme Court
cases. However, it may be that a court-of-appeals interpretation of a Supreme Court
case, especially when it is the same court en banc, is relevant in determining what a
subsequent panel believes that case means. The Court distinguishes Singer on the
ground that the trial judge's comments were pervasive throughout the trial. In this

                                          -13-
himself, not to another witness, and was made directly to the jury, not to the witness.
I don't see why these differences make a legal distinction. The important thing is that
the jury heard the comment, and, in the present case, the testimony of the alleged
victim was virtually the only evidence the government offered.

     The trial court gave the jury cautionary instructions. This was also done in
Quercia, as the Supreme Court's opinion notes.

       The trial court explained that it intended only to remind the child witness that
she was still under oath. This is a routine aspect of trials. When witnesses who have
earlier testified on direct take the stand on rebuttal, they are routinely told that they
are still under oath. There is no need to repeat the oath. What happened here went
far beyond that, though I accept the trial judge's comments that he did not intend to
go beyond it. I have never heard of a judge's making a statement like this in front of
the jury.

        It is said that the trial court's comments could not have been prejudicial,
because they were in the future tense, directed solely to the witness's rebuttal
testimony to come, which testimony was peripheral to the main issue in the case,
whether the abuse had occurred, and whether defendant had committed it. This
explanation won't wash. When the trial court said to the witness that it believed she
would tell the truth, it must have had, or thought that it had, some basis for the
statement. The basis, most likely, was the impression that the witness had made on
the trial court during her direct testimony. Thus, the trial court was saying, in effect,


way, the Court argues, Singer was "worse" than the present case. I was the author of
Singer for the Court en banc. I will say, for what it's worth, that Singer, not involving
a direct comment on a witness's credibility in front of the jury, is by no means
"worse" than the present case. I acknowledge, however, that, even though I wrote
Singer, I have no more legal competence to interpret it than any other member of this
Court.

                                          -14-
that the witness would tell the truth on rebuttal because she had done so as part of the
government's case-in-chief.

       It is said that the comment was not prejudicial, and the opinion of the Supreme
Court of South Dakota, making that finding, is cited in support as a finding of fact.
I do not believe that whether a certain comment was prejudicial is a "fact" as that term
is used in the law. Prejudice is to be determined from all of the surrounding
circumstances. There is and probably can be no direct evidence of the jury's mental
reaction to the comment. Rather, we have to look to the words of the comments
themselves and to their natural tendency to persuade a juror. If you look at the
portion of the Quercia opinion dealing with prejudice, you will find that it is fairly
cursory. The Court evidently thought that comments of this kind were nearly always
prejudicial, if not literally always.

       What is the rule of Quercia? I suggest that the following sentence can be taken
as a capsule of the Court's holding: "The influence of the trial judge on the jury is
'necessarily and properly of great weight' and 'his lightest word or intimation is
received with deference, and may prove controlling.' " I believe that what happened
here is a violation of that rule.

      For these reasons, I respectfully dissent.
                     ________________________________




                                         -15-
