           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 31, 2009

                                     No. 09-60293                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



CLIFTON CLARK,

                                                   Petitioner-Appellant,
v.

CHRISTOPHER B. EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT
OF CORRECTIONS,

                                                   Respondent-Appellee.




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 2:05-CV-2086


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
       Petitioner Clifton Clark appeals the decision of the district court,
dismissing his petition under 28 U.S.C. § 2254 with prejudice. At issue is the
district court’s conclusion that the following two decisions of the Mississippi
Supreme Court, denying Clark’s requests for post-conviction relief, was not
contrary to or an unreasonable application of clearly established federal law as



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                   No. 09-60293

determined by the United States Supreme Court.               First, the Mississippi
Supreme Court held that the admission of the statement of Clark’s co-defendant,
Michael Barnes, in violation of the Confrontation Clause, was harmless error.
Second, it held that the failure of Clark’s counsel to object to certain statements
by the prosecutor that allegedly commented on his post-Miranda silence was not
ineffective assistance of counsel. For the reasons set forth below, we affirm.
                                          I.
      Clark is currently serving a 54-year term of imprisonment after a
Mississippi jury convicted him of armed robbery. On direct appeal, he argued
that the trial court violated his rights under the Confrontation Clause by
admitting, over his objection, Barnes’s statement that Clark was the gunman
during the robbery. The Mississippi Supreme Court agreed that the trial court
had erred in admitting the statement but found that the error was harmless. See
Clark v. State, 891 So.2d 136, 142 (Miss. 2004). Clark then moved for collateral
relief in state court. In it, he alleged, inter alia, that the error was not harmless.
In addition, he contended that the prosecutor violated his right to due process,
as established in Doyle v. Ohio, 426 U.S. 610, 618 (1976), by commenting on his
post-Miranda silence and his counsel’s failure to object to those comments
constituted ineffective assistance of counsel. The Mississippi Supreme Court
denied this application. It found that the harmless-error claim was procedurally
barred under Miss. Code Ann. 99-39-21(3) (1984). It found that the claim,
challenging the prosecutor’s alleged comments about his post-Miranda silence,
was procedurally barred under Miss. Code Ann. 99-39-21(1) (1984).                The
Mississippi Supreme Court found that the related ineffective-assistance-of-
counsel claim failed to satisfy the standards set forth in Strickland v.
Washington, 466 U.S. 668, 687 (1984).
      Clark then filed this petition under§ 2254. In the petition, he re-asserted
the harmless-error and ineffective-assistance-of-counsel claims. The magistrate

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judge found that the Confrontation Clause violation was harmless in light of the
other overwhelming and incriminating evidence. The magistrate judge further
held that the Doyle claim was procedurally barred but that the related claim for
ineffective assistance of counsel was not. After analyzing the transcript, the
magistrate judge concluded that the cross-examination at issue was not a
violation under Doyle, 426 U.S. at 618, and that even if it was, the error was
harmless. As such, he held that the Mississippi Supreme Court’s rejection of
this ineffective-assistance-of-counsel claim was neither contrary to nor an
unreasonable application of Strickland, 466 U.S. at 687.
       The district court adopted these findings and dismissed the petition with
prejudice, but it granted a certificate of appealability on two issues: (1) whether
the prosecutor improperly commented on Clark’s post-Miranda silence and
whether     Clark’s    counsel’s     failure    to   object   to   those    comments       was
constitutionally ineffective; and (2) whether the Confrontation Clause violation
was harmless.1 Clark filed a timely notice of appeal. We find that, because the
prosecutor’s comments did not violate Doyle, 426 U.S. at 618, the failure of
Clark’s counsel to object to those comments was not constitutionally ineffective.
Furthermore, the Confrontation Clause violation was harmless. As such, we
affirm the decision of the district court.
                                               II.
       Because Clark filed his habeas petition after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), § 2254,
review of his petition is governed by the procedures and standards provided
therein. See Parr v. Quarterman, 472 F.3d 245, 251-52 (5th Cir.2006). When a


       1
         In his brief, Clark alleges that his appellate counsel’s failure to raise the harmless-
error issue was “clearly a violation of Strickland v. Washington, 466 U.S. 668 (1984) and its
progeny, mandating the grant of habeas relief in this case.” (Appellant’s Brief at 11-12.) This
argument is beyond the scope of review authorized by the certificate of appealability, and thus,
we decline to address it here. Kiser v. Johnson, 163 F.3d 326, 327 n.1 (5th Cir. 1999).

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state court has adjudicated a prisoner's claim on the merits, we must defer to the
state court and deny the prisoner's habeas claim unless the state court's
adjudication of the claim
      (1) resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as
      determined by the Supreme Court of the United States; or

      (2) resulted in a decision that was based on an unreasonable
      determination of the facts in light of the evidence presented in the
      State Court proceeding.

§ 2254(d)(1)-(d)(2). In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme
Court clarified these provisions. Justice O'Connor wrote in her majority opinion
that a state court's decision
      will certainly be contrary to [the United States Supreme Court's]
      clearly established precedent if the state court applies a rule that
      contradicts the governing law set forth in our cases . . . [or] if the
      state court confronts a set of facts that are materially
      indistinguishable from a decision of this Court and nevertheless
      arrives at a result different from our precedent.

Id. at 405-06.
      In reviewing the denial of habeas relief, the court examines factual
findings for clear error, and it reviews, de novo, questions of law and mixed
questions of law and fact. Carty v. Thaler, 583 F.3d 244, 252-53 (5th Cir. 2009)
(citations omitted).
                                       III.
      We first address Clark’s claim for ineffective assistance of counsel. Our
standards for evaluating such claims under Strickland, 466 U.S. at 687, are well
established:
      First, [a defendant] must demonstrate that his attorney's
      performance fell below an objective standard of reasonableness.
      This court has described that standard as “requiring that counsel
      research relevant facts and law, or make an informed decision that

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      certain avenues will not be fruitful.” Second, [a defendant] must
      also prove that he was prejudiced by his attorney's substandard
      performance. “[T]o prove prejudice, [a defendant] must show that
      there is a reasonable probability that, but for counsel's
      unprofessional errors, the result of the proceeding would have been
      different.”
United States v. Herrera, 412 F.3d 577, 580 (5th Cir. 2005) (footnotes omitted)
(quoting United States v. Conley, 349 F.3d 837, 841 (5th Cir. 2003)). Here, Clark
complains about his counsel’s failure to object to the prosecutor’s remarks that
allegedly violated his due-process rights under Doyle, 426 U.S. at 618.
      The Due Process Clause prohibits the prosecutor from using a defendant’s
post-arrest, post-Miranda silence to impeach the defendant’s exculpatory story.
See Doyle, 426 U.S. at 618. “Although virtually any description of a defendant’s
silence following arrest and a Miranda warning will constitute a Doyle violation,
a prosecutor’s comments must be viewed in context.” United States v.
Pennington, 20 F.3d 593, 599 (5th Cir. 1994) (citation and internal quotation
marks omitted). For there to be a Doyle violation, the court must find that the
“manifest intent” of the remarks was to comment on the defendant’s silence or,
alternatively, “the character of the remark was such that the jury would
naturally and necessarily construe it as a comment on the defendant’s silence.”
United States v. Shaw, 701 F.2d 367, 381 (5th Cir. 1983) (citations and internal
quotation marks omitted).
      We agree with the district court that the remarks at issue do not meet this
standard.   Clark complains only about the following portions of his cross
examination:
      Q: Ok. Well, you invoked your Miranda rights and the Fifth
      Amendment of the United State Constitution and refused to talk,
      which is your right, and I respect that. But when was the first time
      you told someone—when was the first time you told your attorney
      that you were asleep?



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                                  No. 09-60293

      A: I can’t recall exactly. I talked to my attorney off and on since
      this—since I’ve had this charge.
      Q: Did you tell your attorney that you were asleep that night prior
      to yesterday?
      A: Yes, sir.

(Appellant’s Brief at 16-17 (citation omitted) (emphasis added).) This exchange
does not reflect a manifest intent by the prosecutor to use Clark’s post-Miranda
silence to impeach his exculpatory story.      Nor would a jury naturally and
necessarily construe it as such. Instead, it reflects an attempt to clarify when
Clark first told someone that he was sick and in bed at the time of the robbery;
or it reflects an inquiry into the possibility that Clark had made prior
inconsistent statements to the police and in his testimony.           Indeed, the
prosecutor made clear that his questions were not directed at Clark’s refusal to
speak to the police post-Miranda. And consistent with this limitation, the
questions at issue focused on when Clark told his attorney the alibi. Doyle, 426
U.S. at 618, covers the use of a defendant’s post-Miranda refusal to speak to the
police; it does not cover a prosecutor’s attempt to use the conversations between
a defendant and his counsel.
      Other portions of the transcript also show that the prosecutor was testing
Clark’s alibi by trying to establish when Clark first told someone that he was
sick and in bed on the night in question. The magistrate judge noted that, on
direct examination, Clark claimed that he was sick and in bed at the time of the
robbery. The magistrate judge also pointed to portions of the transcript showing
that, immediately before the complained-about exchange, the prosecutor asked,
“So you’ve come up with the sleep idea since this trial? . . . When did you come
up with the sleep idea?” Under these circumstances, we find that the district
court properly concluded that there was no Doyle violation. As such, we affirm
its finding that the Mississippi Supreme Court’s decision—that defense counsel’s
failure to object to this exchange on Doyle grounds does not constitute ineffective

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                                  No. 09-60293

assistance of counsel—is not contrary to or an unreasonable application of
Strickland, 466 U.S. at 687.
                                       IV.
      The Confrontation Clause violation also does not merit habeas relief. Prior
to trial, Barnes had told the police that Clark was the gunman during the
robbery. But at trial, he testified that Clark was not with him during the
robbery. Barnes explained that he had previously implicated Clark because he
had believed that Clark had turned him in. Barnes then refused to testify any
further, even when the trial judge ordered him to do so. Faced with Barnes’s
recalcitrance, the trial judge instructed the jury to disregard his prior testimony
and then admitted, over Clark’s objection, the statement that Barnes had given
to the police. It is undisputed that this was a violation of the Confrontation
Clause. The only issue before this court is whether the Mississippi Supreme
Court properly concluded that the violation was harmless.
      “Confrontation Clause violations are subject to harmless error analysis.”
Fratta v. Quarterman, 536 F.3d 485, 507-8 (5th Cir. 2008) (citations omitted).
Such a violation is cause for habeas relief only if it had a substantial and
injurious effect or influence in determining the jury’s verdict. Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993) (citation omitted). In conducting this
analysis, the court considers: (1) the importance of the testimony in the
prosecution’s case; (2) whether the testimony was cumulative; (3) the presence
or absence of evidence corroborating or contradicting the testimony; and (4) the
overall strength of the prosecution’s case against the defendant. Cupit v. Whitley,
28 F.3d 532, 539 (5th Cir. 1994).(citations omitted). “Of these, the strength of
the prosecution’s case is probably the single most important factor in
determining whether the error was harmless.” Id. (citations omitted).
      The district court adopted the magistrate judge’s finding that the properly
admitted evidence against Clark was “overwhelming.” In light of this evidence,

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it “[could not] conclude that the error had a ‘substantial and injurious effect or
influence in determining the jury’s verdict.’” Therefore, the district court held
that the Mississippi Supreme Court’s decision rejecting this claim was neither
contrary to nor an unreasonable application of clearly established federal law.
We agree.
      Even without Barnes’s statement, the prosecution’s overall case was
strong. Mandy Weathers, Clark’s roommate at the time of the robbery, testified
that she had been alone at home when the robbery had occurred, that she had
checked Clark’s bedroom and he was not there, and that shortly after the
robbery, Clark and Barnes came into her room and told her that they had
committed the robbery. She testified that Clark had given her a gun a few days
earlier, and Clark told her that he had used that gun in the robbery.            To
corroborate Clark’s claim, Weathers checked under her bed, where she had
stored the gun, and found that it was missing. According to Weathers, Clark
said that he would return the gun if she wanted him to, but he would prefer not
to. She testified that, shortly after the robbery, Clark threatened her with a gun
and told her that he would shoot her for giving the police a statement. Weathers
also testified that, prior to trial, Clark offered her a bribe in return for her
silence. Clark acknowledges that Weathers testified about his admission, but
he fails to explain or point to any evidence of record (other than his own
testimony) showing that her testimony is unreliable. (Appellant’s Brief at 5-6,
14-15.)
      Latosha Fairley, Clark’s girlfriend at the time of the robbery, testified that
she had reviewed the surveillance video of the robbery, which showed that there
were two masked robbers and one of them carried a gun. She testified that the
gunman’s build and mannerisms resembled Clark “a lot.” Fairley also testified




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                                       No. 09-60293

that Clark had confessed his involvement to her.2                     Barnes’s testimony,
identifying Clark as the gunman, is cumulative of Weathers and Fairley’s
testimonies, which reflect Clark’s admission that he was the gunman during the
robbery.
       In addition, eyewitnesses testified that the gunman was significantly taller
than his accomplice. The surveillance video, which the jurors viewed, identified
the taller of the two robbers as the gunman. Both Weathers and the police
investigator testified that Clark was significantly taller than Barnes (about five
inches). The testimonies from Weathers, Fairley, the police investigator, and the
eyewitnesses, as well as the videotape corroborate Barnes’s identification of
Clark as the gunman.           Indeed, the only conflicting evidence was Clark’s
testimony, denying his involvement.
       Clark relies heavily on the prosecutor’s summation to demonstrate that
the prosecution’s case substantially relied upon Barnes’s statement. While this
characterization may arguably be accurate and may suggest that Barnes’s
testimony was important to the prosecution’s case, the importance of the
testimony is only one of several factors that the court weighs. As explained
above, all of the other factors point to harmless error, including the most



       2
          Shortly after Fairley testified, she informed Clark’s counsel that she was no longer
certain about that testimony. Clark’s counsel then informed the court that Fairley would
return to provide additional testimony. Accordingly, Clark’s counsel urged Fairley to return
to provide the recantation testimony, but she did not. Counsel also attempted to locate her
but was unable to. Two days after the trial, Clark filed an affidavit from Fairley, which stated
that she could no longer be certain that Clark confessed his involvement to her. Because this
questionable recantation was never presented to the jury and subject to cross-examination,
we will not consider it in our harmless-error analysis. See White v. Johnson, 153 F.3d 197, 201
(5th Cir. 1998) (explaining that the court conducts the harmless-error analysis in the context
of “other evidence presented” to the jury so that the court can determine the effect that the
improperly admitted testimony had on the trial). We also note that recantations are generally
looked upon with the “utmost suspicion.” United States v. Smith, 433 F.2d 149, 150 (5th Cir.
1970) (citation omitted). Such suspicion is particularly justified here given Fairley’s refusal
to testify to the recantation and apparent disappearance as well as the evidence that Clark
had intimidated and attempted to bribe Weathers.

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                                        No. 09-60293

important factor, the overall strength of the prosecution’s case. In sum, we find
that, when weighed against all of the other compelling, corroborating, and
incriminating evidence that was presented to the jury, the improperly introduced
testimony did not have a substantial and injurious effect or influence in
determining the jury’s verdict. Thus, the Mississippi Supreme Court’s decision
on this issue was not contrary to or an unreasonable application of Brecht, 507
U.S. at 637.3
                                               V.
         For the reasons set forth above, we AFFIRM the decision of the district
court.




         3
         Contrary to Clark’s assertion, the Mississippi Supreme Court did not rely on Barnes’s
statement to conclude that the Confrontation Clause violation was harmless error. The court
specifically stated, “Despite this error, in addition to other damaging evidence there was direct
testimony at trial by [Weathers and Fairley] that Clark had confessed to committing the
Amoco robbery. Therefore, due to the overwhelming weight of the evidence, we conclude
beyond a reasonable doubt that the violation of the Confrontation Clause was harmless error
by the trial court.” Clark v. State, 891 So.2d 136, 142 (Miss. 2004) (emphasis added).

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