     Case: 11-30790     Document: 00511849796         Page: 1     Date Filed: 05/09/2012




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

                                                                            FILED
                                                                            May 9, 2012
                                     No. 11-30790
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

GEORGE LEE,

                                                  Petitioner-Appellant

v.

VENETIA MICHAEL, Warden,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:10-CV-1712


Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Petitioner-Appellant George Lee, Louisiana prisoner                # 437722, was
convicted by a jury of five counts of forcible rape and three counts of second
degree kidnapping. He was sentenced to a 32-year term of imprisonment. State
v. Lee, 844 So. 2d 970, 974-75, 1000 (La. Ct. App. 2003). Lee filed an application
under 28 U.S.C. § 2254 in federal court, claiming, inter alia, that the prosecution
violated his rights under the Fifth Amendment by commenting on his failure to
testify during closing argument. The district court denied relief on the ground

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                 No. 11-30790

that it was clear from the record that the prosecution was not commenting on
Lee’s failure to testify, but was instead using the trial evidence to contradict
Lee’s taped statement that was played to the jury.           The district court
nevertheless granted a certificate of appealability on this issue.
      A federal court may not grant habeas relief on any claim that was
adjudicated on the merits in state court proceedings unless the state court’s
ruling was the result of “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 if the state court decision “was
based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” § 2254(d).
      A prosecutor’s comment on a defendant’s failure to testify violates the
Fifth Amendment right against self-incrimination. Griffin v. California, 380
U.S. 609, 613-15 (1965); United States v. Martinez-Larraga, 517 F.3d 258, 266
(5th Cir. 2008). Remarks made by a prosecutor must be considered in context.
United States v. Delgado, 672 F.3d 320, 335 (5th Cir. 2012) (en banc) (direct
appeal). The Fifth Amendment is violated if the prosecutor’s “manifest intent
. . . must have been to comment on the defendant’s silence” or if “the character
of the remark [was] such that the jury would naturally and necessarily construe
it as a comment on the defendant’s silence.” Cotton v. Cockrell, 343 F.3d 746,
751 (5th Cir. 2003). There is no manifest intent to comment on a defendant’s
failure to testify if there is another “equally plausible” explanation for a
prosecutor’s remarks. United States v. Collins, 972 F.2d 1385, 1406 (5th Cir.
1992) (internal quotation and citation omitted). The relevant question with
regard to the character of such a remark is not whether a jury “possibly or even
probably” would view it as a comment on the defendant’s silence, but whether
a jury would necessarily construe it as such. Id.
      When read in context of the record as a whole, it is clear that the
prosecutor was contending that the trial evidence showed Lee’s taped statement

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                                   No. 11-30790

explaining that he and one of the victims had had consensual sex simply made
no sense. The prosecutor’s comments were consistent with the trial evidence.
See Delgado, 672 F.3d at 336. An attorney may argue to the jury the “inferences
and conclusions” that it should draw from the evidence so long as counsel’s
assertions are based on the evidence. Id. The prosecutor’s closing argument in
this case sounds as a comment on the defense’s failure to undermine or rebut the
State’s evidence rather than a reference to Lee’s silence. See Montoya v. Collins,
955 F.2d 279, 287 (5th Cir. 1992); United States v. Guzman, 781 F.2d 428, 432
(5th Cir. 1986). Lee has not shown that the district court erred in determining
that the state court’s adjudication of his claim was not unreasonable in light of
the facts and clearly established federal law. Charles v. Thaler, 629 F.3d 494,
498 (5th Cir. 2011); see § 2254(d)(1), (2).
      AFFIRMED.




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