                   UNITED STATES COURT OF APPEALS
                        For the Fifth Circuit



                             No. 01-10289


                            FACUNDO OCHOA,

                                               Petitioner-Appellant,


                                VERSUS


           JANIE COCKRELL, Director, Texas Department of
              Criminal Justice, Institutional Division,

                                                Respondent-Appellee.




             Appeal from the United States District Court
       For the Northern District of Texas, Fort Worth Division
                           (4:00-CV-1644-Y)
                             May 10, 2002


Before GARWOOD and DENNIS, Circuit Judges, and LITTLE,* District
Judge.

PER CURIAM:**

       The issues in this appeal from the denial of habeas relief are



  *
    Chief Judge of the Western District of Louisiana, sitting by
designation.
  **
     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this opinion should not be published and is not precedent except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.

                                  1
whether   the   state   prosecutor   violated   the   petitioner’s   Fifth

Amendment rights by commenting on his failure testify and, if so,

whether any resulting error was harmless.        We need not decide the

first question because we hold that the prosecutor’s comments did

not “have a substantial or injurious effect or influence” on the

petitioner’s conviction regardless of whether they violated the

Fifth Amendment. The district court’s order is therefore affirmed.



                   I.   Facts and Procedural History

      On March 10, 1998, petitioner Facundo Ochoa was tried in a

Texas state court for aggravated assault of a child and indecency

with a child.1    The victim was the daughter of Ochoa’s longtime

sporadic girlfriend, Debbie Ortiz.       Ortiz, Ochoa, and the victim

were living with Ochoa’s mother at the time in question.

      During trial, the victim testified in detail about how Ochoa

molested her twice over the span of a month.            The first attack

occurred in December 1995, when the victim was eleven years old.

The victim was sleeping on the couch when she awoke to Ochoa

fondling her breasts and buttocks.         While she was still in a

slumber, Ochoa removed her sweat pants and panties, pushed her legs

apart, and forced his penis far enough into her vagina for it hurt.

The victim testified that she was scared and that she pulled her

legs together.     Ochoa stopped and left the room when the victim


  1
      See Tex. Pen. Code Ann. §§ 21.11, 22.021 (Vernon 1994).

                                     2
moved, but after a few minutes, he returned and began fondling her

and licking her neck.     He then forced his penis into her mouth.     It

was approximately 1:30 a.m. and the victim could smell beer on

Ochoa’s breath.

       The second incident occurred in January of 1996.       It was late

in the evening, and Ochoa was alone with the victim while her

mother was out running an errand.        Once again, Ochoa began rubbing

the victim’s breasts while she was sleeping on the living room

couch.     The victim testified that when her mother returned from

her errand, Ochoa stopped what he was doing and left the room.

When Ms. Ortiz walked into the living room, she found her daughter

on the couch crying; the daughter then revealed that Ochoa had been

molesting her.

       The next morning, Ms. Ortiz brought her daughter to her

mother’s house and contacted Child Protective Services (CPS).         The

case was assigned to Nora DeWitt, a CPS investigator.         Ms. DeWitt

arranged for the child to have an examination on February 5, 1996,

at a children’s medical center.      The victim was examined by a CARE

unit, which is a group of medical professionals specializing in

forensic pediatrics.      Dr. Jan Leah Lamb, who headed the CARE team

that     examined   the   victim,   testified   in   detail   about   her

qualifications and the procedures for determining if a patient has

been sexually molested.        Although she found no physiological

evidence of abuse, Dr. Lamb testified that in her opinion, the

victim had been molested.     She explained that due to the anatomy of

                                     3
the vagina and the time that had lapsed between the assault and the

examination, the lack of trauma to the victim’s vagina did not rule

out molestation.    In fact, Dr. Lamb testified that there is no

physical evidence of sexual abuse in most child abuse cases.

      CPS investigator Nora DeWitt also concluded that Mr. Ochoa had

molested the victim.    As part of her investigation, Ms. DeWitt

interviewed the victim, Ms. Ortiz, and Mr. Ochoa.   In light of the

CARE evaluation and her own investigation, Ms. DeWitt closed this

case finding “reason to believe that abuse had occurred.”2

      Finally, the state presented evidence that Mr. Ochoa admitted

to engaging in indecent acts with the victim.   The victim’s mother

testified that when she confronted Mr. Ochoa with her daughter’s

allegations, he responded that “he had to do what he had to do.   He

couldn’t get it from me, [so] he was going to get it from her.”

Ms. Ortiz further testified that Mr. Ochoa specifically admitted to

fondling her daughter’s breasts, but denied penetrating her.

      The essence of the petitioner’s defense was that the victim

fabricated the molestation story to win her mother’s attention and

that the lack of physical evidence discredited any claims of

penetration. Mr. Ochoa’s strongest witness was Christina Martinez,

Ochoa’s fifteen-year-old step-niece who was friends with the victim


  2
    Ms. DeWitt testified that when closing a child abuse case, CPS
investigators classify the case in one of three ways: “One is
reason to believe that abuse occurred, one being ruled out that
abuse did not occur, and one of unable to be determined if abuse
occurred or not.”

                                 4
during the time in question.           Ms. Martinez testified that the

victim told her that Mr. Ochoa had molested her.              But when Martinez

made clear that the allegation was nothing to joke about, the

victim retracted her allegation stating that she was “just playing”

and that “[n]othing really happened.”

     According to the petitioner, the victim was starved for

attention   from     her   mother    and   her    home     life   was   unstable.

Witnesses testified that Ms. Ortiz would leave her daughter home

alone while she was out all night and that Ms. Ortiz and Mr. Ochoa

frequently engaged in violent arguments.            Ms. Ortiz testified that

she has regularly warned the victim since she was six-years-old not

to let men make sexual advances toward her.                   The petitioner’s

theory was that Ms. Ortiz put the idea of making an outcry into the

victim’s head by frequently warning her about men and that the

victim made the outcry hoping to gain the attention of her absentee

mom. The lack of physical evidence, the petitioner argued, further

undermined the state’s case and discredited Dr. Lamb’s conclusion

that the victim had been assaulted.

     Despite the petitioner’s pleas, however, the jury convicted

Mr. Ochoa on both counts, and he was sentenced to two concurrent

prison terms of fifty-five years each. On direct appeal, the state

appellate court affirmed Ochoa’s conviction and sentence, and the

Texas   Court   of    Criminal      Appeals      refused    his   petition    for

discretionary review. Mr. Ochoa then filed a state application for

habeas corpus relief; the Texas Court of Criminal Appeals denied

                                       5
the petition without written order.

       On September 28, 2000, Mr. Ochoa filed a petition for habeas

relief under 28 U.S.C. § 2254 in the Northern District of Texas.

The district judge referred the case to a magistrate judge, who

issued findings, conclusions, and a recommendation that habeas

relief be denied.       On February 7, 2001, the district court issued

its    order    adopting      the     magistrate     judge’s    findings       and

recommendations, and granted summary judgment denying the petition

for writ of habeas corpus.

       The petitioner later filed an application for certificate of

appealability (COA) in the district court, but the COA was denied.

On May 19, 2001, however, Mr. Ochoa filed an application for a COA

in this court.       We granted Mr. Ochoa’s application for COA on July

19, 2001, to review “whether his Fifth Amendment right was violated

at    trial   when   the   prosecutor    commented    about    his   failure    to

testify, and whether any error was harmless.”



                                II.     Analysis

       To obtain habeas relief, a petitioner must either demonstrate

that the state court’s decision “was contrary to . . . clearly

established Federal law, as determined by the Supreme Court of the

United States,” or “involved an unreasonable application of . . .

clearly established Federal law, as determined by the Supreme Court




                                         6
of the United States.”3      A state court’s decision is “contrary to”

clearly established federal law if it “arrives at a conclusion

opposite to that reached by th[e] [Supreme] Court on a question of

law or if the state court decides a case differently than this

Court has on a set of materially indistinguishable facts.”4             A

state court’s decision makes an “unreasonable application” of

federal law “if the state court identifies the correct governing

legal     principle   from   th[e]   [Supreme]   Court’s   decisions   but

unreasonably applies that principle to the facts of the prisoner’s

case.”5     Although a district court may look to our rulings to

support its decision as to whether the state court unreasonably

applied federal law, “the focus of the habeas inquiry remains

conflict with federal law established by the Supreme Court.”6           A

state court’s determinations of factual issues are presumed correct

and the applicant bears the burden of rebutting the presumption

with clear and convincing evidence.



      A.    Comment on the Failure to Testify.

      The petitioner claims that he is entitled to habeas relief

because the state prosecutor violated his Fifth Amendment rights by


  3
      Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
  4
      Id.
  5
      Id.
  6
      Ledford v. Thomas, 275 F.3d 471, 474 n.2 (5th Cir. 2001).

                                      7
commenting on his failure to testify.      Prosecutor Barbara Medley

made the   following   allegedly   unconstitutional   comments   during

closing arguments:

     PROSECUTOR:   Now, there’s also nothing in [the jury
     charge] that says how many witnesses you have to hear.
     There’s no requirement that you hear any more than one
     witness or base your decision based [sic] on more than
     one witness’[s] testimony.

          Just because a defendant chooses to commit a crime
     with no witnesses around doesn’t mean that he gets a free
     ride, okay? If you believe everything that [the victim]
     said beyond a reasonable doubt, you can base your
     decision solely on her testimony.

     DEFENSE: Objection on the comment on failure to testify.

     THE COURT: I didn’t so interpret, but I will instruct
     Counsel not to refer to the Defendant not testifying.

     PROSECUTOR:   I won’t, Your Honor.

     DEFENSE:   Can I have a ruling on my objection, please?

     THE COURT:    I’ll overrule your objection.

     PROSECUTOR:    You watched her.      You can judge her
     credibility.   With any witness that you saw, you can
     believe everything they say or none of what they say or
     you can believe some of it and not believe some of it.
     You are the sole judge of the credibility of every single
     witness.

          And you saw that child get up there. You saw how
     she told you what happened.      You heard her say how
     difficult it was. And pay attention to the details in
     what she told you and how that fits into the whole scheme
     of things.

          But we also brought you more than that. We also
     brought you her mother, which told you that this
     Defendant made some admissions to you.

          And Defense counsel is absolutely right. You can
     [sic] absolutely cannot consider the fact that the
     Defendant did not testify.

                                   8
      DEFENSE:    Comment on failure to testify.

      THE COURT:    Overruled.

      PROSECUTOR: You cannot hold that against him. But you
      also cannot speculate about any evidence that you did not
      hear. You must base your decision –

      DEFENSE:    Comment on failure to testify, Your Honor.

      THE COURT:    Overruled.

      PROSECUTOR: You must base your decision solely on the
      evidence that you did hear and judge the credibility of
      the evidence that you did hear.

On direct review, the state appellate court found no constitutional

violation in the prosecutor’s remarks.       Relying primarily on Texas

appellate court decisions, the court held that the comments were

appropriate      because   they   merely   recited   the   trial   judge’s

instructions and did not draw attention to information that only

the petitioner could have provided.7

      In Griffin v. California, the Supreme Court held that a state

prosecutor may not comment on a defendant’s failure to testify at

trial: “[T]he Fifth Amendment, in its direct application to the

Federal Government and in its bearing on the States by reason of

the Fourteenth Amendment, forbids either comment by the prosecution


  7
     Ochoa v. Texas, No. 2-98-134-CR, slip op. at 3-4 (Tex.
App.–Fort Worth April 9, 1999, pet. denied) (“The prosecutor’s
statement sought to affirm that, indeed, [Ochoa] does have a right
not to testify and that the jury could neither hold that against
him nor hypothesize on what he might have said. That is consistent
with the jury’s instructions during voir dire and in the jury
charge. The prosecutor did not rhetorically ask why [Ochoa] did
not testify or call attention to evidence that could only be
supplied by [Ochoa].”).

                                     9
on the accused’s silence or instructions by the court that such

silence is evidence of guilt.”8            We have clarified that “[t]he test

for     determining          whether     the        prosecutor’s        remarks        were

constitutionally impermissible is: (1) whether the prosecutor’s

manifest intent was to comment on the defendant’s silence or (2)

whether the character of the remark was such that the jury would

naturally       and    necessarily      construe      it     as   a    comment    on   the

defendant's silence.”9

       In United States v. Johnston,10 this court held under similar

circumstances         that   a    prosecutor’s      comment       on   the   defendants’

failure    to    testify         constituted    a    Fifth    Amendment      violation.

Similar to the prosecutor’s comments in the present case, the

prosecutor in Johnston took it upon himself to paraphrase the

court’s instruction on the failure to testify:

       [The jury charge] reminds you that a defendant has the
       right not to testify. That is constitutional right. It
       is yours. It is mine. It is theirs. Please value it.
       I do.    Don’t take into consideration the fact that
       whether or not anyone testified in this case is
       inappropriate.

             But what you also can’t do in a situation like this
       is go back into that jury room and make up a story for
       them.    That is impermissible by law.    You can’t play
       “what if.”    You can’t say, “Well, if they testified,
       well, maybe they would have explained this. Maybe they
       would have said that.” That’s not allowed and that’s

  8
       380 U.S. 609, 615 (1965).
  9
    U.S. v. Grosz, 76 F.3d 1318, 1326 (5th Cir. 1996) (internal
quotes and citations omitted).
  10
       127 F.3d 380, 398 (5th Cir. 1997).

                                           10
       fair.11

The court found it irrelevant that the prosecutor was restating the

district     court’s   instruction    not   to   consider    the   defendants’

failure to testify as evidence of their guilt.              Regardless of the

intent or legal accuracy of the statement, the court found that it

had the effect of focusing the jury’s attention on the defendants’

failure to testify.12     The Johnston panel also took issue with the

prosecutor’s claim that the jury could not speculate on what the

defendants might have said.          The panel reasoned that this claim

impermissibly penalized the defendants for opting not to testify

and noted that nothing prohibits the jury from “theorizing in their

own minds as to a defendant’s version of the facts in the absence

of testimony from the defendant.”13

       Despite the similarities between this case and Johnston, it is

not clear that the state court unreasonably applied Supreme Court

precedent in holding that prosecutor Medley’s statements did not

violate Ochoa’s Fifth Amendment rights.              In United States v.

Robinson,14 the Supreme Court held that a prosecutor’s direct

comment on the defendant’s failure to testify did not violate the

Fifth Amendment because it was responsive to the defendant’s



  11
       Id.
  12
       Id.
  13
       Id.
  14
       485 U.S. 25, 32 (1988).

                                      11
argument that the government never gave him an opportunity to

respond to the charges against him.         The court explicitly rejected

the idea that any direct comment on the defendant’s failure to

testify constitutes error.          Rather, the court explained that

Griffin only prohibits prosecutors and judges “from suggesting to

the jury that it may treat the defendant’s silence as substantive

evidence of guilt.”15       Other post-Griffin Supreme Court cases also

suggest that the Court has taken a narrower view of Griffin,

prohibiting only “adverse comments” on a defendant’s failure to

testify.16

       Thus, whether there was a constitutional violation in this

case is a close question.        Under a broad reading of Griffin and

under our factually similar holding in Johnston, the prosecutor’s

statements    appear   to    make   an    impermissible   comment   on   the

petitioner’s failure to testify.         The prosecutor’s statements that

the jury “cannot consider the fact that [Ochoa] did not testify”

and that the jury “cannot speculate about any evidence that you did

not hear” were direct comments on Ochoa’s failure to testify and

focused the jury’s attention on the issue.          Johnston, however, is


  15
       Id. (quoting Baxter v. Palmigiano, 425 U.S. 308, 319 (1976)).
  16
      See, e.g., Carter v. Kentucky, 450 U.S. 288, 298 (1981)
(“[T]he Fifth and Fourteenth Amendments bar only adverse comment on
a defendant’s failure to testify, and that ‘a judge’s instruction
that the jury must draw no adverse inference of any kind from the
defendant’s exercise of his privilege not to testify is a “comment”
of an entirely different order.’”) (quoting Lakeside v. Oregon, 435
U.S. 333, 339 (1978)); Palmigiano, 425 U.S. at 319.

                                     12
a   circuit     court    decision       and     does    not    constitute     “clearly

established law as determined by the Supreme Court.”                       There is a

colorable argument under Robinson and other more recent Supreme

Court cases that the prosecutor’s comments were permissible because

they were not “adverse comments” on Ochoa’s failure to testify;

i.e., the prosecutor did not suggest that Ochoa’s failure to

testify was evidence of his guilt.

         We need not resolve this close question of constitutional law

in order to decide this case.            As discussed below, we hold that the

prosecutor’s comments were harmless regardless of whether they

violated Ochoa’s Fifth Amendment rights.



         B. Harmless Error.

         Even if there were a Fifth Amendment violation, Ochoa is not

entitled to habeas relief if the error was harmless.                     The Supreme

Court has instructed that the standard for establishing harmless

error on collateral review is “less onerous” on the state than it

is on direct review.17 In Brecht v. Abrahamson, the Court held that

in a habeas case, an error is harmless unless it “had a substantial

and      injurious   effect     or   influence     in     determining    the       jury’s

verdict.”18      To     obtain   relief       under    this    standard,      a    habeas

petitioner      must     show    that     the     error       resulted   in       “actual


    17
         Brecht v. Abrahamson, 507 U.S. 619, 636-38 (1993).
    18
         Id. at 637.

                                          13
prejudice.”19       Because we determine that Ochoa has not established

actual prejudice under Brecht, he is not entitled to habeas relief.

       This circuit’s opinion in United States v. Palmer20 provides

the appropriate framework for deciding on direct review whether to

reverse the        defendant’s    conviction     for    improper   prosecutorial

argument. Under Palmer, three factors are relevant to the inquiry:

“(1) the magnitude of the prejudicial effect of the prosecutor’s

remarks, (2) the efficacy of any cautionary instruction by the

judge,       and   (3)   the   strength   of   the   evidence    supporting   the

conviction.”21       Although under Brecht the petitioner must make an

even stronger showing of prejudice than a defendant on direct

appeal, the Palmer analysis is nonetheless instructive.

       Under the first prong, we consider the magnitude of the

prejudicial effect of the prosecutor’s remarks “in the context of

the trial” and attempt “to elucidate their intended effect.”22                 In

the context of this case, the prosecutor’s statements probably had

little prejudicial effect because defense counsel raised Ochoa’s

failure to testify before the prosecution did.                  The prosecutor’s

reference to Ochoa’s failure to testify came only after Ochoa’s

attorney prematurely raised the issue.                 In context, it is clear



  19
       Id.
  20
       37 F.3d 1080 (5th Cir. 1994).
  21
       Id. at 1085.
  22
       Id.

                                          14
that    the    prosecutor’s     comments    immediately      preceding    the

defendant’s first objection made no reference to Ochoa’s failure to

testify.      The defense attorney’s “[o]bjection on the comment on

failure to testify” alerted the jury to the fact that Ochoa did not

testify and elicited an instruction from the judge that emphasized

the fact.     Thus, by the time the prosecutor actually remarked on

the failure to testify, the issue was already before the jury.23

       The Supreme Court acknowledged the relevance of this point in

Lockett v. Ohio.24       In Lockett, the defendant argued that the

prosecutor made indirect references to his failure to testify by

repeatedly     stating   that   his   involvement   in   a   conspiracy   was

“unrefuted” and “uncontroverted.”25        The Court held that there was

no reversible error because the defendant’s attorney drew the

jury’s attention to his failure to testify before the state did:

       Lockett’s own counsel had clearly focused the jury’s
       attention on her silence, first, by outlining her
       contemplated defense in his opening statement and,
       second, by stating to the court and jury near the close
       of the case, that Lockett would be the “next witness.”
       When viewed against this background, it seems clear that
       the prosecutor’s closing remarks added nothing to the
       impression that had already been created by Lockett’s
       refusal to testify after the jury had been promised a

  23
     We do not mean to suggest that the prosecution has carte
blanche to discuss inadmissible evidence any time a defendant
raises a premature objection.     In the context of this case,
however, and in light of the innocuous nature of the prosecutor’s
comments, we believe that he prosecutor’s comments had little
practical effect on the conviction.
  24
       438 U.S. 586, 595 (1978).
  25
       Id.

                                      15
       defense by her lawyer and told that Lockett would take
       the stand.26

       Furthermore, there is no indication that the prosecution

intended to present Ochoa’s failure to testify as evidence of his

guilt.       In the context of the state’s closing arguments, the

prosecutor’s comments are merely responsive to defense counsel’s

premature objection.     Thus, in light of the prosecution’s benign

intent, coupled with the fact that the defense counsel put Ochoa’s

failure to testify at issue before the state did, we believe that

the prosecutor’s comments had little prejudicial effect on Ochoa’s

conviction.

       As to the second prong of the Palmer analysis, the trial court

issued two cautionary instructions relevant to this case.     During

closing arguments, the district judge instructed the prosecutor in

the presence of the jury “not to refer to the Defendant not

testifying.”      Furthermore, the jury charge states that the jury

“must not refer to or discuss any matters not in evidence.”       We

have no reason to assume that the jury did not heed the trial

court’s instructions.27     Moreover, when an objection to a jury

charge is not properly preserved, the instruction must be clearly


  26
       Id.
  27
     See Lakeside v. Oregon, 435 U.S. 333, 340 & n.11 (1978) (“As
this Court has remarked before: ‘[W]e have not yet attained that
certitude about the human mind which would justify us in . . . a
dogmatic assumption that jurors, if properly admonished, neither
could nor would heed the instructions of the trial court . . . .’”)
(quoting Bruno v. United States, 308 U.S. 287, 294 (1937)).

                                  16
erroneous and prejudicial to warrant reversal.28                 Ochoa raises no

objection to the court’s cautionary instruction or the sufficiency

of the jury charge.        Thus, the second Palmer prong also points to

the harmlessness of any potential error.

       In examining the third prong, we find convincing evidence

supporting       Ochoa’s   conviction.       As    stated   above,   the    victim

emotionally recounted the details of both molestations.                    She was

duly cross-examined and the jury had the opportunity to judge her

credibility.      The jury also heard from the victim’s mother, Debbie

Oritz, who found the victim crying on the couch immediately after

the second sexual assault.         Ms. Ortiz also testified that Ochoa

admitted to assaulting her daughter because Ms. Ortiz was not

satisfying his libido. Finally, two professionals having extensive

experience with child abuse cases concluded that Mr. Ochoa abused

the victim.      Although there was no physical evidence of trauma to

the child’s genitalia, Dr. Lamb explained that the lack of physical

evidence    is    common   and   that    it       is   neither   exculpatory   nor

inculpatory of sexual abuse.

       In light of our Palmer analysis, Mr. Ochoa has not established

that the statements in question “had a substantial and injurious

effect or influence” on his conviction.                Each of the three Palmer

factors weighs against a finding of “actual prejudice.”                 Thus, any

potential error created by the prosecutor’s reference to Ochoa’s


  28
       United States v. Olano, 507 U.S. 725, 734-35 (1993).

                                        17
failure to testify was harmless under the standard announced in

Brecht v. Abrahamson.



                            III.     Conclusion

     This case presents a close question of whether the prosecutor

improperly commented on Mr. Ochoa’s failure to testify in his own

defense.    Regardless     of   whether    the   statements   constitute     a

violation   of   Fifth   Amendment    right   that   no   person   “shall    be

compelled in any criminal case to be a witness against himself,”

any such violation was harmless under Brecht v. Abrahamson.                 Mr.

Ochoa therefore has not established a right to habeas relief.               The

district court’s ruling is AFFIRMED.




                                      18
