                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                  FILED
                                                         U.S. COURT OF APPEALS
                               No. 08-15215                ELEVENTH CIRCUIT
                                                           NOVEMBER 10, 2009
                           Non-Argument Calendar
                                                            THOMAS K. KAHN
                         ________________________
                                                                 CLERK

                     D. C. Docket No. 06-60502-CV-KAM

AKEEM MUHAMMAD,



                                                            Petitioner-Appellant,

                                    versus

WALTER A. MCNEIL,

                                                           Respondent-Appellee.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                             (November 10, 2009)

Before BLACK, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

     Akeem Muhammad, a Florida state prisoner serving a life sentence for first
degree murder, appeals pro se the district court’s denial of his 28 U.S.C. § 2254

petition for habeas corpus relief. On appeal, Muhammad argues that the prosecutor

engaged in prosecutorial misconduct, leading to a violation of his due process right

to a fair trial. Muhammad also argues ineffective assistance of counsel for failure

to object to the prosecutorial misconduct as a ground for relief.

                                     I. BACKGROUND

      After his jury trial in Florida state court, Muhammad challenged his

conviction and sentence on direct appeal. The Florida Supreme Court affirmed his

conviction but vacated his sentence.1 Muhammad v. State, 782 So. 2d 343, 349

(Fla. 2001) (per curiam). The state and Muhammad petitioned the Supreme Court

of the United States for a writ of certiorari, but both were denied. Florida v.

Muhammad, 534 U.S. 944, 122 S. Ct. 323 (2001); Muhammad v. Florida, 534 U.S.

836, 122 S. Ct. 87 (2001). Muhammad filed a pro se motion for postconviction

relief under Florida Rule of Criminal Procedure 3.850. The Florida court

dismissed Muhammad’s motion, and the Florida District Court of Appeal affirmed

the decision without any substantial discussion of the issues. This was followed by

the present habeas corpus petition.

      Muhammad filed his 28 U.S.C. § 2254 petition for habeas corpus relief in



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          Muhammad later appears to have been resentenced to life in prison. D. 37 at Ex. A.

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the United States District Court for the Southern District of Florida. Muhammad

contends, inter alia, that during closing argument in his trial, the prosecutor made

three improper remarks and that Muhammad’s counsel failed to object to one of

the improper remarks. A magistrate judge issued a Report and Recommendation

recommending the denial of Muhammad’s petition in its entirety, including the

claims of prosecutorial misconduct as a violation of due process and ineffective

assistance of counsel. D. 60 at 42. First, the magistrate judge found that none of

the three allegedly improper statements by the prosecutor ultimately deprived

Muhammad of a fair trial. Id. at 35–36. Second, the magistrate judge found that

since the Florida Supreme Court found that none of the statements constituted

“fundamental error,” his attorney’s failure to object did not meet the prejudice

prong of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064

(1984). Id. at 36.

      Muhammad filed objections to the Report and Recommendation. Regarding

his due process based on prosecutorial misconduct claim and his ineffective

assistance of counsel claim, he argued that the magistrate judge “failed to consider

the totality” of those claims by ignoring other alleged instances of prosecutorial

misconduct and addressing only those raised on direct appeal. He also argued that

the magistrate judge erroneously relied on findings of fact and statements of law



                                          3
from the state courts that he believed were in error. However, Muhammad’s

allegations of legal error only vaguely argued that the state court’s decision did not

comport with the applicable federal authorities. He also contended that the

magistrate judge failed to properly consider the totality of the circumstances when

it found no prejudice existed on the ineffective assistance claim. The district court

adopted and affirmed the Report and Recommendation without modification. D.

67.

      Muhammad filed a motion for Certificate of Appealability (“COA”) with the

district court. He requested permission to raise twenty-two issues on appeal. The

district court denied the motion. This Court later granted a COA as to two issues:

      Whether the district court erred by finding that the prosecution’s
      statements during closing arguments asking the jury to consider
      the pain and suffering of the victim, describing state witnesses’
      testimony as candid, and discussing evidence relating to
      Muhammad’s license plate number, deemed inadmissible by the
      trial court, did not render Muhammad’s trial fundamentally unfair

and

      Whether the district court erred finding that Muhammad’s
      counsel was not ineffective for failing to raise an objection to the
      prosecution’s comments at closing arguments relating to
      evidence of Muhammad’s license plate number which was
      deemed inadmissible by the trial court.

D. 86 at 2–3. It denied a COA on all other claims. Id. at 2.

      On appeal, Muhammad first argues that the prosecutor improperly tried to


                                           4
inflame the jury during closing arguments by focusing on the pain and terror of the

victim. During closing argument, the prosecutor stated, “Debra Holdren . . .

testified that there was terror on [the victim’s] face and she saw how frightened he

was . . . .” Ex. 20 at 1962. He also stated:

      The victim of the crime . . . is not here to speak because he is
      dead but had he survived and if he was asked to come in and
      tell you his perception of what happened to him and what he
      saw and who did it to him against the back drop of the fear and
      the anger and the terror . . . .

Ex. 20 at 1968–69. Muhammad’s attorney objected to this later statement, but was

overruled. The state responds that, regarding the victim’s pain, a witness had

already testified that the victim had a “look of terror,” and therefore, the statement

was a comment on the evidence. It also contends that there was no reasonable

probability that these comments, even if improper, contributed to a guilty verdict.

      Second, Muhammad argues that the prosecutor repeatedly and

impermissibly vouched for the credibility of a witness by stating that she was

“candid” during his closing argument. The prosecutor stated, “Herndon, as far as

her identification here, I would submit to you she was candid, they all were candid

and they were all candid conversations based upon human experiences.” Id. at

1982. He also stated, “[L]ook at Melissa Herndon when you are talking candor . . .

.” Id. at 1985. Muhammad’s counsel did not object to either statement. The state



                                           5
contends that the prosecutor reminded the jury members that it was their job to

assess the credibility of the witnesses, and that any improper comments did not

deny Muhammad due process. It also argues that Muhammad did not raise this

issue on direct appeal, though the state does not explicitly argue that the claim is

procedurally barred. At the outset, where the state does not assert a procedural bar

and it is unclear whether a court in a previous ruling considered an issue

procedurally barred, a federal court considers the issues on the merits. See Davis v.

Zant, 36 F.3d 1538, 1545 (11th Cir. 1994).

          Third, Muhammad contends that the prosecutor referenced facts not in

evidence during his closing argument by stating that the police were able to

identify Muhammad’s car based on the license plate, even though such evidence

previously had been ruled inadmissible. During closing argument, the prosecutor

stated:

          Officer Russell testified to you that there was additional
          information given to him that he used as far as the car was
          concerned to go ahead and stop that car and to detain that car,
          but it was not all beaten up. Tags. There was additional
          information that he used to do that this which was given to him
          in this particular case.

Ex. 20 at 1986 (emphasis added). Muhammad’s counsel did not object. The state

concedes that the license plate comment was improper, but it notes that it

constituted harmless error beyond a reasonable doubt.


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      Additionally, Muhammad alleges that his counsel’s failure to object to the

reference to the license plate constituted ineffective assistance of counsel. The

state responds by arguing that Muhammad cannot show prejudice because the

underlying error was not “fundamental.” Accordingly, we review only the issues

granted under the COA and affirm the denial of Muhammad’s 28 U.S.C. § 2254

petition for habeas corpus relief.

                           II. STANDARD OF REVIEW

      When reviewing a district court’s denial of a § 2254 habeas corpus petition,

“we review questions of law and mixed questions of law and fact de novo, and

findings of fact for clear error.” LeCroy v. Sec’y, Fla. Dep't of Corr., 421 F.3d

1237, 1259 (11th Cir. 2005) (citing Nyland v. Moore, 216 F.3d 1264, 1266 (11th

Cir. 2000).

                                 III. DISCUSSION

      Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), a federal court may only grant habeas relief with respect to a claim

adjudicated in state court if the state court proceedings: “(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



                                           7
facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §

2254(d); see also Maharaj v. Sec’y for the Dep’t. of Corr., 432 F.3d 1292, 1308

(11th Cir. 2005).

      A.     Due Process Based on Prosecutorial Misconduct

      “To find prosecutorial misconduct, a two-pronged test must be met: (1) the

remarks must be improper, and (2) the remarks must prejudicially affect the

substantial rights of the defendant.” United States v. Eyster, 948 F.2d 1196, 1206

(11th Cir. 1991) (citing United States v. Walther, 867 F.2d 1334, 1341 (11th Cir.

1989)). “The reversal of a conviction or a sentence is warranted when improper

comments by a prosecutor have ‘so infected the trial with unfairness as to make the

resulting conviction [or sentence] a denial of due process.’” Parker v. Head, 244

F.3d 831, 838 (11th Cir. 2001) (quoting Darden v. Wainwright, 477 U.S. 168, 181,

106 S. Ct. 2464 (1986)); U.S. Const. Amend. XIV. Due process is denied “when

there is a reasonable probability,” or “a probability sufficient to undermine

confidence in the outcome,” that, but for the improper remarks, “the outcome of

the proceeding would have been different.” Eyster, 948 F.2d at 1206–07 (citations

and internal punctuation omitted). Where prosecutorial misconduct renders a trial

fundamentally unfair, it constitutes a denial of due process. Land v. Allen, 573

F.3d 1211, 1219 (11th Cir. 2009) (per curiam) (citing Darden, 477 U.S. at 181). If



                                           8
it fails to render the trial fundamentally unfair, however, habeas relief is not

available. Id.

      The remarks are considered under the totality of the circumstances. Hall v.

Wainwright, 733 F.2d 766, 773 (11th Cir. 1984) (per curiam) (citing Brooks v.

Francis, 716 F.2d 780, 787 (11th Cir. 1983)). “In determining whether arguments

are sufficiently egregious to result in the denial of due process,” we consider

factors including: “(1) whether the remarks were isolated, ambiguous, or

unintentional; (2) whether there was a contemporaneous objection by defense

counsel; (3) the trial court’s instructions; and (4) the weight of aggravating and

mitigating factors.” Land, 573 F.3d at 1219–20 (citing Romine v. Head, 253 F.3d

1349, 1369–70 (11th Cir. 2001)). Other factors courts have considered include:

“the degree to which the challenged remarks have a tendency to mislead the jury

and to prejudice the accused” and “the strength of the competent proof to establish

the guilt of the accused.” Davis, 36 F.3d at 1546 (citing Brooks v. Kemp, 762 F.2d

1383, 1402 (11th Cir. 1985) (en banc)). “[T]he bar for granting habeas based on

prosecutorial misconduct is a high one.” Land, 573 F.3d at 1220. Where there is

other overwhelming evidence of guilt, improper comments will usually not render

a trial fundamentally unfair. See id.

      Under Florida law, an argument is improper if it invites the jury to imagine



                                            9
the pain and suffering of the victim. See Urbin v. State, 714 So. 2d 411, 421 (Fla.

1998) (per curiam) (holding improper an imaginary script where prosecutor stated

victim died pleading for his life); Garron v. State, 528 So. 2d 353, 358–59 (Fla.

1988) (per curiam) (“[Y]ou can just imagine the pain this young girl was going

through as she was laying there on the ground dying . . . . I would hope . . . that the

jurors will listen to the screams and to her desires for punishment . . . .” (internal

quotation omitted)). The Florida Supreme Court found that the prosecutor’s

remarks that referred to the look of terror and fear of the victim were a violation of

that rule in this case, but the record as a whole indicated that it was harmless

beyond a reasonable doubt. Muhammad, 782 So. 2d at 360. The Florida Supreme

Court’s decision, that nothing about the statements concerning the terror of the

victim indicated that it contributed to the jury’s verdict, is not contrary to clearly

established federal law on due process. Further, as multiple witnesses identified

Muhammad as the shooter, among other evidence, treating the prosecutor’s

comments regarding the look on the victim’s face as harmless beyond a reasonable

doubt was not contrary to, or an unreasonable application of, federal law.

      A prosecutor’s comments constitute improper “vouching” if they are “based

on the government’s reputation or allude to evidence not formally before the jury.”

Eyster, 948 F.2d at 1206 (citing United States v. Hernandez, 921 F.2d 1569, 1573



                                            10
(11th Cir. 1991)). “The prohibition against vouching does not forbid prosecutors

from arguing credibility, which may be central to the case . . . .” Hernandez, 921

F.2d at 1573. Although improper vouching can be grounds for reversal, it may be

cured if the remarks are not “substantially prejudicial” and any lingering prejudice

is remedied by a careful cautionary instruction. See United States v. Sarmiento,

744 F.2d 755, 762–65 (11th Cir. 1984). Although the district court did not

explicitly address whether the prosecutor’s statements constituted improper

vouching, the record here shows that the error, if any, was harmless. First, a

statement that a witness was “candid” does not show that the prosecutor relied on

the government’s reputation to support the witness. Further, there is no indication

that this remark rendered the entire trial fundamentally unfair in violation of

Muhammad’s right to due process. An isolated statement that a witness was

candid, when contrasted with multiple eyewitness identifications, is not sufficient

to overcome the high threshold for establishing that the trial was fundamentally

unfair, violating Muhammad’s due process rights.

      Finally, it is prosecutorial misconduct to argue “prejudicial facts not in

evidence.” Berger v. United States, 295 U.S. 78, 84, 55 S. Ct. 629, 631 (1935).

Muhammad argues that it was prosecutorial misconduct during closing argument

for the prosecutor to argue that the arresting officer had received information on a



                                          11
license plate and matched that to Muhammad’s vehicle, after a pretrial motion in

limine ruling barred such evidence. The prosecutor’s comment regarding the

license tag was impermissible because the pretrial motion forbade any mention of

the license plate, and no witness testified about the plate. The prosecutor’s

statement in his closing statement was arguably probative, as information on the

plates would more strongly link Muhammad’s car to the crime scene.

      As previously stated, Muhammad was identified as the shooter by several

witnesses. Russell had other stated reasons for believing the car in question was

the same one linked to the crime scene. More specifically, during Officer Russell’s

re-direct examination, the prosecutor asked, “This last [“Be On the Lookout”] that

you had other than the first one without telling us the information in it, was that

updated with some specific information?” Ex. 20 at 1798. Officer Russell replied,

“Absolutely, it was.” Id. In light of the record, it does not appear that the

comment referring to the license plate, although improper, rendered the trial

fundamentally unfair in violation of due process.

      In light of the overwhelming evidence of guilt, coupled with defense

counsel’s failure to contemporaneously object, the prosecutor’s improper and

isolated comments did not render this trial fundamentally unfair. Accordingly,

Muhammad has not shown that the Florida court’s decision, that the improper



                                          12
comments were harmless beyond a reasonable doubt, was contrary to, or

constituted an unreasonable application of, federal law. Therefore, the district

court did not err in denying Muhammad’s petition as to his due process claim

based on prosecutorial misconduct.

      B.     Ineffective Assistance of Counsel

      In order to show ineffective assistance of counsel, a petitioner must

demonstrate “both (1) deficient performance of counsel and (2) prejudicial impact

stemming from counsel’s deficient performance.” Alderman v. Terry, 468 F.3d

775, 792 (11th Cir. 2006) (citing Strickland, 466 U.S. at 687); U.S. Const. Amend.

VI. This Court has held that where a petitioner was not entitled to relief for

prosecutorial misconduct, his attorney’s failure to object to that misconduct does

not warrant reversal. See Land, 573 F.3d at 1221.

      The district court did not err in denying Muhammad’s petition in this

respect. Assuming arguendo Muhammad’s attorney was constitutionally

ineffective for failing to object, the statements themselves did not render the trial

fundamentally unfair. Muhammad has not shown that, had his attorney objected

contemporaneously to the improper comment regarding a fact not in evidence, the

outcome would have been any different. The Florida court’s conclusion that this

was harmless beyond a reasonable doubt was therefore not clearly contrary to, or



                                           13
an unreasonable application of, federal law.

      Upon review of the record and the parties’ briefs, we affirm the district

court’s denial of Muhammad’s 28 U.S.C § 2254 petition for habeas corpus relief.



      AFFIRMED.




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