            Case: 15-11797   Date Filed: 10/17/2017   Page: 1 of 39


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 15-11797
                        ________________________

                 D.C. Docket No. 1:05-cv-00831-WKW-WC



ARTEZ HAMMONDS,


                                                            Petitioner-Appellant,

                                   versus


COMMISSIONER, Alabama
Department of Corrections,


                                                          Respondent-Appellee.

                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Alabama
                       ________________________

                             (October 17, 2017)

Before WILSON, ROSENBAUM, and JILL PRYOR, Circuit Judges.
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PER CURIAM:

      An Alabama jury convicted Hammonds of murder and sentenced him to

death. Hammonds petitioned for federal habeas review, arguing that the prosecutor

made statements during trial that violated Hammonds’s constitutional rights—

namely, his Fifth Amendment right against self-incrimination as articulated in

Griffin v. California, 380 U.S. 609, 615 (1965), and his due-process right to a fair

trial as set forth in Estelle v. Williams, 425 U.S. 501, 503-13 (1976). The district

court denied Hammonds’s petition. Because Hammonds cannot show that he was

actually prejudiced by any constitutional trial error, we affirm.

                                I. BACKGROUND

A. Factual and Procedural Background

      Petitioner Artez Hammonds was convicted in the Circuit Court of Houston

County, Alabama, of capital murder and sentenced to death. The facts of the crime

for which Hammonds was convicted are thoroughly detailed in Hammonds v.

State, 777 So. 2d 750 (Ala. Crim. App. 1999) (“Hammonds I”), aff’d sub nom. Ex

parte Hammonds, 777 So. 2d 777 (Ala. 2000) (“Hammonds II”). We include a

summary of the facts relevant to this appeal.

      The State presented the following evidence at Hammonds’s trial.

Hammonds and another man, Greg Gordon, delivered bedroom furniture to




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Marilyn Mitchell’s townhouse the morning of May 14, 1990. Hammonds and

Gordon set up the furniture in Mitchell’s second-floor master bedroom and left.

      The following evening, Mitchell’s fiancé entered the townhouse and found

Mitchell dead, lying in the hallway at the top of the stairs. She had been raped and

murdered.

      The police investigation that followed uncovered blood spatters in the

townhouse and semen in Mitchell’s vaginal and anal cavities as well as on a tissue

found in a bedroom. Missing from the townhouse were Mitchell’s engagement

ring, $400, and a comforter from one of the beds.

      The State’s investigation was fruitless for six years. Meanwhile, Hammonds

was convicted of an unrelated crime in Alabama and imprisoned. In May 1996, a

sample of Hammonds’s blood was drawn for DNA analysis and comparison

pursuant to the Alabama combined DNA indexing system (“CODIS”) program.

See Ala. Code § 36-18-20, et seq. Two to three months later, the final test results

indicated a match between Hammonds’s DNA and the DNA extracted from the

blood and semen samples obtained from the crime scene. On September 6, 1996,

the State arrested Hammonds for Mitchell’s rape and murder.

      At Hammonds’s trial, forensic scientists testified that Hammonds’s DNA

matched the DNA obtained from the blood spatters and the semen found at the

crime scene. The State also presented evidence that Hammonds’s thumbprint was


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discovered on a telephone that was in Mitchell’s bedroom and that Hammonds had

pawned a diamond ring similar to Mitchell’s missing engagement ring after

Mitchell’s murder.

      Hammonds invoked his Fifth Amendment right against self-incrimination

and elected not to testify. Doug Valeska led the State’s prosecution. Although it is

black-letter law that a prosecutor may not comment on a defendant’s decision not

to testify, Griffin, 380 U.S. at 615, Hammonds thought it necessary to ask the court

in a pre-trial motion in limine to preclude Valeska from making any such remarks,

given Valeska’s track record. See, e.g., Jackson v. State, 414 So. 2d 1014, 1021-22

(Ala. Crim. App. 1982) (quoting from the record Valeska’s improper closing

argument about defendant’s failure to testify); McNair v. State, 653 So. 2d 320,

333-34, 336-38 (Ala. Crim. App. 1992) (disapproving of numerous inappropriate

remarks Valeska made about the victim). The trial court granted Hammonds’s

motion over the State’s objection and ordered Valeska not to refer to Hammonds’s

decision not to testify during the trial.

      But neither the Constitution nor a direct order from the court inhibited

Valeska from improperly referring to Hammonds’s decision not to testify.

Hammonds’s counsel was examining Gordon about the telephone that had been in

Mitchell’s bedroom, when the following exchange occurred:

             Q: Let’s say there’s a phone next to the wall on the floor.
             You wouldn’t have thought anything at all about sitting
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             down and picking up that phone and putting [it on a
             nightstand], would you?

             A: No.

             Q: Mr. Hammonds would have done the same thing,
             wouldn’t he?

             Valeska: Objection. He can’t testify—

             Court: Sustained.

             Valeska: —what Mr. Hammonds would do. Let him
             testify.
      Hammonds’s counsel immediately asked to approach the bench and, outside

the jury’s presence, Valeska admitted that he intended to refer to Hammonds when

he said, “Let him testify.” Hammonds’s counsel moved for a mistrial. The trial

court denied Hammonds’s motion for a mistrial but issued a curative instruction to

the jury. The trial transcript reflects the following instruction:

             Ladies and gentlemen of the jury, there was a statement
             made by the Prosecution, an objection by the Defense,
             which was sustained. The remark, and I’m not sure in
             which manner it was intended, but it basically said, “Let
             him testify.” It can be taken several ways, but such
             remarks are improper, and the jury should disregard that
             remark by Mr. Valeska. Statements of counsel as I told
             you are not any evidence in this case and should not be
             used by you or considered by you as evidence. Under the
             law the Defendant has the privilege to testify in his own
             behalf or not. He cannot be compelled to testify against
             himself, and that no presumption of guilt or innocence of
             any kind should be drawn from his failure to testify.

(emphasis added).

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      Valeska made another inappropriate comment during his closing argument.

In highlighting the inconsistencies in Hammonds’s prior statements, Valeska

argued the following:

             In the statement he gave to the police officers; I wasn’t
             having sex with anybody but who? Suwana, my wife.
             That tells us about Artez. Was your wife pregnant, at that
             time? No, she wasn’t pregnant. He didn’t even know his
             own wife was pregnant, carrying his child. He couldn’t
             keep the stories straight in prison and the detective said
             you said your son was born in September, she had to be
             pregnant. Oh, that is right. She was pregnant.

(emphasis added).

      Hammonds’s counsel again immediately requested to approach the bench

and again moved for a mistrial, citing Valeska’s reference to Hammonds’s

imprisonment. The trial court denied Hammonds’s second motion for a mistrial

and issued the following curative instruction to the jury:

             Ladies and Gentlemen of the Jury, I told you before and I
             will tell you again; you know what the lawyers say to you
             is not evidence. It is not to be considered by you as
             evidence. What they tell you and what they are doing is
             arguing their case to you. They are submitting what they
             believe the evidence to be. They are attempting to draw
             certain inferences; what they say is just to assist you. But,
             it is not to be considered by you as any evidence in this
             case. And, the only evidence that you are to consider
             would be evidence that comes from this Witness Stand or
             any exhibits that were introduced and admitted into
             evidence. So, just keep that in mind, what the Attorneys
             tell you is not evidence. You may proceed.



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      The jury convicted Hammonds and recommended the death penalty. The

trial court sentenced Hammonds to death on December 19, 1997.

      The Alabama Court of Criminal Appeals affirmed the conviction and

sentence, Hammonds I, as did the Alabama Supreme Court, Hammonds II.

Although Valeska’s improper remarks “almost persuaded” the Alabama Supreme

Court to reverse Hammonds’s conviction, it nonetheless held that “the trial judge

corrected any harm by giving appropriate corrective instructions.” Hammonds II,

777 So. 2d at 778. So in short, the Alabama Supreme Court concluded that a

constitutional violation had occurred, but it found that the judge’s trial instructions

had rendered the error harmless.

      Notably, three dissenting justices would have held Hammonds entitled to a

new trial. One justice specifically faulted the first curative instruction at issue for

failing to instruct the jury that it could not draw an adverse inference from

Hammonds’s decision not to testify: “While the trial judge did caution the jury not

to draw any ‘presumption of guilt or innocence’ from the defendant’s failure to

testify, the defendant was more imperiled by the likelihood that the jury would

draw an adverse inference, a much more common legal and mental operation.” Id.

at 780 (Johnstone, J., dissenting).

      Hammonds then exhausted his state court post-conviction remedies.




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      When that yielded no relief, Hammonds timely filed a petition for a writ of

habeas corpus, pursuant to 28 U.S.C. § 2254, in the United States District Court for

the Middle District of Alabama, again asserting that the prosecutor’s remarks

violated his Fifth Amendment right against self-incrimination and denied him a fair

trial. The district court denied Hammonds’s petition, holding that the Alabama

courts did not act contrary to, or engage in an unreasonable application of, clearly

established federal law. The district court also denied Hammonds’s motion for

reconsideration and application for a certificate of appealability.

      Hammonds filed a motion for a certificate of appealability with this court.

See 28 U.S.C. § 2253(c). We granted Hammonds’s motion on the issue of whether

the Alabama courts acted contrary to, or engaged in an unreasonable application

of, clearly established law in determining that any violation of Hammonds’s rights

under the Fifth and Fourteenth Amendments by the prosecutor’s two statements

referencing Hammonds’s decision not to testify in his own defense and directly

referencing Hammonds’s prior imprisonment did not require a new trial.

      We note that Hammonds was procedurally barred from raising Valeska’s

inappropriate comments as a basis for relief in his Alabama state collateral-review

petition, since he had raised the issue on direct appeal and the Alabama courts had

addressed it. See Ala. R. Crim. P. 32.2(a)(4). Therefore, the Alabama Supreme




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Court’s opinion in Hammonds’s direct appeal represents the last opinion of the

Alabama courts on the issues raised in Hammonds’s federal habeas petition.

B. The Discovery of a “Corrected” Record

      On April 20, 2016, following the parties’ briefing in the instant appeal and

five days before we held oral argument, the State moved to correct the record on

appeal, pursuant to Rule 10(e), Fed. R. App. P. 1 In support of its motion, the State

informed the court that it had recently discovered a “Certificate of Replacement

Page to the Official Record on Appeal” signed on June 27, 2000, by Carla




      1
          Federal Rule of Appellate Procedure 10(e) provides,

               (e) Correction or Modification of the Record.

                       (1) If any difference arises about whether the record truly
                       discloses what occurred in the district court, the difference
                       must be submitted to and settled by that court and the
                       record conformed accordingly.

                       (2) If anything material to either party is omitted from or
                       misstated in the record by error or accident, the omission or
                       misstatement may be corrected and a supplemental record
                       may be certified and forwarded:

                              (A) on stipulation of the parties;

                              (B) by the district court before or after the record
                                  has been forwarded; or

                              (C) by the court of appeals.

                       (3) All other questions as to the form and content of the
                       record must be presented to the court of appeals.


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Woodall, a Special Roving Court Reporter for the Twentieth Judicial Circuit of the

State of Alabama.

      According to the Certificate, Woodall reviewed her notes and the audio

recording of Hammonds’s trial at the request of the judge who presided over it.

Woodall concluded that page 228 of the original trial transcript erroneously

substituted “innocence” for “inference” in the court’s curative instruction.

Woodall’s filing purported to correct the error by offering a replacement page 228,

on which the curative instruction reads as follows:

             Ladies and gentlemen of the jury, there was a statement
             made by the Prosecution, an objection by the Defense,
             which was sustained. The remark, and I’m not sure in
             which manner it was intended, but it basically said, let
             him testify. It can be taken several ways, but such
             remarks are improper, and the jury should disregard that
             remark by Mr. Valeska. Statements of counsel as I told
             you are not any evidence in this case and should not be
             used by you or considered by you as evidence. Under the
             law the Defendant has the privilege to testify in his own
             behalf or not. He cannot be compelled to testify against
             himself, and that no presumption of guilt or inference of
             any kind should be drawn from his failure to testify.

(emphasis added). On June 27, 2000—four days after the Alabama Supreme

Court issued its decision in Hammonds’s direct appeal, but before Hammonds

sought relief under Alabama’s post-conviction process—Woodall filed the

certificate in the Alabama circuit court.     She also forwarded a copy of the

certificate to the Alabama Supreme Court and the Alabama Court of Criminal


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Appeals. On June 28, 2000, Woodall’s Certificate of Replacement was docketed

on the Alabama Court of Criminal Appeal’s docket.             Hammonds filed an

application for rehearing on July 7, 2000, which the Alabama Supreme Court

summarily denied on September 1, 2000.

                 II. MOTION TO CORRECT THE RECORD

      As a threshold matter, we must determine whether to rely on original or

corrected page 228 in conducting our review. We previously determined that we

did not need to “correct” our record pursuant to Rule 10(e) because Woodall’s

corrected page 228 already appeared in the record that was filed in the district

court and forwarded to us. Hammonds v. Comm’r, Ala. Dep’t of Corr., 822 F.3d

1201, 1206 (11th Cir. 2016) (“Hammonds III”). But that fact does not answer the

question of whether we can rely on corrected page 228. Hammonds opposes the

State’s motion and urges us to consider only original page 228.

      Our “review under § 2254(d)(1) is limited to the record that was before the

state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S.

170, 181 (2011) (emphasis added). We were unable to piece together whether

corrected page 228 was “before” the Alabama Supreme Court when it adjudicated

Hammonds’s claim. Hammonds III at 1207-09. So on April 28, 2016, we asked

the Alabama Supreme Court to identify for us whether corrected page 228 was a




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part of the record when it determined Hammonds’s claim.               We certified the

following questions to the Alabama Supreme Court:

               1. Whether corrected page 228 of the trial transcript in
                  Artez Hammonds’s trial for the capital murder of
                  Marilyn Mitchell, attached hereto as Appendix A, was
                  part of “the record that was before the [Alabama
                  Supreme Court]” when it “adjudicated [Artez
                  Hammonds’s claim that the trial court erred in
                  denying his motion for a mistrial following the
                  prosecutor’s reference to his decision not to testify] on
                  the merits.” Cullen v. Pinholster, 563 U.S. 170, 181,
                  131 S. Ct. 1388, 1398 (2011).
               2. If so, whether page 228 of the original trial transcript
                  or corrected page 228 constitutes the official transcript
                  of Hammonds’s trial.

Id. at 1209.

      On May 27, 2016, the Alabama Supreme Court declined to answer the

questions, which it “has every right to do.” Blue Cross & Blue Shield of Ala., Inc.

v. Nielsen, 116 F.3d 1406, 1413 (11th Cir. 1997), certified question answered, 714

So. 2d 293 (Ala. 1998). But that does not relieve us of our obligation to determine

whether corrected page 228 was “before” the Alabama Supreme Court when it

adjudicated Hammonds’s claims. See Pinholster, 563 U.S. at 181-83.

      On the one hand, corrected page 228 was arguably part of the record before

the Alabama Supreme Court by the time it completed its consideration of

Hammonds’s claims. The Committee Comments to Alabama Rule of Appellate

Procedure 36 indicate that a decision of the Alabama Supreme Court becomes final

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upon issuance of an opinion and entry of judgment. Entry of judgment is stayed

following issuance of an opinion until after any applications for rehearing have

been resolved. Ala. R. App. P. 41(a)(2).

      Corrected page 228 was not part of the record when the Alabama Supreme

Court issued its opinion on June 23, 2000. But as we have noted, Hammonds filed

an application for rehearing on July 7, 2000, which the Alabama Supreme Court

summarily denied on September 1, 2000. On September 20, 2000, the Alabama

Supreme Court and the Alabama Court of Criminal Appeals issued a Certificate of

Judgment affirming Hammonds’s conviction. The Alabama Court of Criminal

Appeals docketed, and the Alabama Supreme Court presumably had received,

Woodall’s copy of corrected page 228 by September 20, 2000, when the

Certificate of Judgment issued.      Therefore, corrected page 228 was arguably

“before” the Alabama Supreme Court before its consideration of Hammonds’s

claims was final.

      On the other hand, corrected page 228 was not added to the record according

to proper procedure, on appeal or on rehearing.          Alabama Rule of Appellate

Procedure 10(g) governs supplements and corrections to criminal records on

appeal. The rule specifies that “if any question arises as to whether the record

correctly reflects what occurred in the trial court and the parties cannot stipulate as

to what action should be taken to supplement or correct the record,” the party


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seeking to supplement the record must file a motion to do so with the trial court.

Ala. R. App. P. 10(g). The trial court must then “enter such orders as are necessary

to ensure that the record is complete and that it conforms to the truth.” Id. But no

party filed a motion to supplement or correct the record as directed by Rule 10(g).

And although that rule also allows an appellate court to sua sponte certify a

supplemental or corrected record, id., no Alabama appeals court did so to

accommodate corrected page 228.

      An applicant for rehearing can challenge an appeals court’s rendering of the

facts pursuant to Alabama Rule of Appellate Procedure 40(e).2 Hammonds filed

an application for rehearing on July 7, 2000. The State did not oppose it. Our

record does not include a copy of Hammonds’s application for rehearing, so we

cannot say whether he challenged the Alabama Supreme Court’s rendering of the
      2
          Alabama Rule of Appellate Procedure 40(e) provides in relevant part,

               If a court of appeals issues an opinion or an unpublished
               memorandum containing a statement of facts and a party applying
               for rehearing is not satisfied with that court’s statement of the
               facts, the party applying for rehearing may present in the
               application for rehearing a proposed additional or corrected
               statement of facts or the applicant’s own statement of facts. If the
               applicant is not satisfied with the facts stated in the main opinion
               or the unpublished memorandum of the court of appeals, but the
               applicant is satisfied with the facts as stated in a dissent or a
               special writing by a judge or judges of the court of appeals, the
               applicant shall indicate those facts with which the applicant is in
               agreement and indicate in which part of the dissent or special
               writing the facts are found. If the applicant does not present in the
               application an additional or corrected statement of facts or the
               applicant’s own statement of facts, it will be presumed that the
               applicant is satisfied with the facts as stated in the court of appeals’
               main opinion or unpublished memorandum.
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facts with respect to the trial judge’s curative instruction. If he did not, then the

Alabama Supreme Court likely accepted the facts as stated in its June 23, 2000,

opinion, which reflected the curative instruction as written on original page 228.

      That neither party made use of the appropriate procedures for correcting or

supplementing the record suggests that corrected page 228 may not have been

“before” the Alabama Supreme Court, in which case we would be precluded from

relying on it.

      Most significantly, even if corrected page 228 was technically part of the

record by the time judgment issued, the Alabama Supreme Court appears not to

have considered it. The court summarily denied rehearing without referencing

corrected page 228 or modifying its opinion. Neither did the dissenting justices

modify their dissents, even though one dissenting justice specifically found fault

with the word “innocence,” a word that no longer appears in the jury instruction on

corrected page 228.

      Our “review under § 2254(d)(1) focuses on what a state court knew and

did.” Pinnholster, 563 U.S. at 182. If the Alabama Supreme Court relied on

original—and not corrected—page 228 when it rendered judgment on

Hammonds’s claims, we must likewise evaluate the court’s decision based on

original page 228. Because we have deep doubts that the Alabama Supreme Court




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knew about corrected page 228, let alone considered it the official trial transcript,

we cannot conclude that it was “before” the Court for purposes of our review.

      Excluding corrected page 228 from our review also makes sense as a policy

matter. Hammonds understandably complains that the State sat on its copy of

corrected page 228 for almost 16 years—during which time Alabama courts, the

federal district court, and our court in granting the COA, relied on original page

228—before asking us to conduct our collateral review using a fact that the State

could have brought to the attention of the Alabama Supreme Court, but didn’t.

Considering corrected page 228 in these circumstances could create a perverse

incentive for a party to withhold a key fact that is otherwise lost in a voluminous

record until the most opportune moment, regardless of whether that moment arises

before the state has completed its review. 3

      This tactic, however, would “deprive[] the state courts of an opportunity to

address” a claim in the first instance, Coleman v. Thompson, 501 U.S. 722, 732

(1991), holding modified by Martinez v. Ryan, 132 S. Ct. 1309 (2012), and would

frustrate our collateral review of the state court’s decision. Cf. Pinholster, 563

U.S. at 204 (“Permitting a petitioner to obtain federal habeas relief on the basis of



      3
         We do not intend to imply that the State intentionally waited to call attention to
corrected page 228. We note only that our consideration of corrected page 228 in these
circumstances could invite future parties to habeas proceedings to engage in such acts.


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evidence that could have been but was not offered in state court would upset this

scheme.”) (Alito, J., concurring).

      For these reasons, we deny the State’s motion insofar as it requests that we

consider corrected page 228 in conducting our collateral review. Our review of the

Alabama Supreme Court’s adjudication of Hammonds’s constitutional claims

therefore considers original page 228.

                        III. STANDARDS OF REVIEW

      We review de novo a district court’s denial of habeas relief. French v.

Warden, Wilcox State Prison, 790 F.3d 1259, 1265 (11th Cir. 2015).

      Under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), a federal court cannot grant a writ of habeas corpus to a state

petitioner whose claim was adjudicated on the merits unless the adjudication of the

claim “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 “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.” 28 U.S.C. § 2254(d). When a state court recognizes that

error occurred during trial, the AEDPA standard requires the federal court to

determine, among other things, whether the state court’s conclusion that an error

was harmless was unreasonable.


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       The Supreme Court has identified two relevant definitions of a harmless

error. In Chapman v. California, 386 U.S. 18 (1967), the Supreme Court explained

that an error is not harmless if “the beneficiary of a constitutional error [cannot]

prove beyond a reasonable doubt that the error complained of did not contribute to

the verdict obtained.” Id. at 23. Chapman was a case involving review on direct

appeal.

       In Brecht v. Abrahamson, 507 U.S. 619 (1993), the Supreme Court

determined that the standard for establishing harmlessness in a case on collateral

review was less demanding than that on direct review. Specifically, the Court held

that error is harmless unless it “had substantial and injurious effect or influence in

determining the jury’s verdict.” Id. at 623 (quoting Kotteakos v. United States, 328

U.S. 750, 776 (1946)) (quotation marks omitted). To satisfy the Brecht standard, a

petitioner must show “actual prejudice” resulting from a constitutional trial error.

Trepal v. Sec’y, Fla. Dep’t of Corr., 684 F.3d 1088, 1110 (11th Cir. 2012).

       Here, the Alabama Supreme Court considered on direct review the issue of

harmlessness as it relates to the errors that occurred in this case. It therefore

appears to have applied the Chapman standard for concluding that the errors were

harmless.4 See Hammonds II, 777 So. 2d at 777-79. We, however, are evaluating


       4
           The Alabama Supreme Court did not expressly reference Chapman or paraphrase its
test for harmless error. Nonetheless, the Alabama Court “found no error in . . . the guilt phase . .
. of the trial that adversely affected Hammonds’s substantial rights.” Hammonds II, 777 So. 2d
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Hammonds’s claim on collateral review, so the Brecht standard for harmlessness

applies, and it applies regardless of the standard that the Alabama Supreme Court

used on direct review. Fry v. Pliler, 551 U.S. 112, 121-22 (2007).

       The Supreme Court has held that in this situation, where the state court

applies the Chapman standard, a habeas court may not simply apply AEDPA’s

unreasonableness standard in reviewing the state-court decision. Id. at 119-20.

Rather, the Supreme Court has determined that to grant relief, the habeas court

must find that the error satisfies Brecht’s standard for harmfulness. The Court has

also explained that the Brecht standard “obviously subsumes” the AEDPA test

when it is applied to a Chapman finding of harmless error, meaning that if a

petitioner satisfies the Brecht standard, he necessarily also satisfies the AEDPA

standard, though the reverse is not true. Id. at 120; see also Davis v. Ayala, 135 S.

Ct. 2187, 2198-99 (2015).

       The majority of the federal courts of appeals directly apply the Brecht test

rather than first determining whether a petitioner meets the AEDPA standard.5



at 777-78. It further concluded that “the trial judge corrected any harm by giving appropriate
corrective instructions.” Id. at 778. This language demonstrates that the Alabama Supreme
Court, at the very least, implicitly concluded that the errors at issue were harmless beyond a
reasonable doubt.
        5
          See, e.g., Connolly v. Roden, 752 F.3d 505, 506 (1st Cir. 2014) (2015) (applying “the
Brecht standard of review, which is even more deferential than the ordinary standard of review
under [AEDPA],” to review state court’s determination that constitutional error during state
criminal proceedings was harmless); Wood v. Ercole, 644 F.3d 83, 93 (2d Cir. 2011) (noting that
Fry “settled the debate” and held that the Brecht standard applies to determine whether a state
trial-court constitutional error was harmless); Ruelas v. Wolfenbarger, 580 F.3d 403, 412 (6th
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And we have previously explained that “federal courts—on collateral review—

should apply the ‘actual prejudice’ standard of Brecht” when addressing a state

trial-court constitutional error. Vining v. Sec’y, Dep’t of Corr., 610 F.3d 568, 571

(11th Cir. 2010); see also Trepal, 684 F.3d at 1111-12.

       Hammonds invokes our collateral review of the impact of two alleged

constitutional trial errors committed during his state criminal trial. Although he

argues that the Alabama courts engaged in an unreasonable application of clearly

established federal law under AEDPA when they concluded that the errors he

alleged were harmless, he must also meet the more demanding Brecht “actual

prejudice” standard. And since it “makes no sense” to apply both tests, Fry, 551

U.S. at 120, we apply the Brecht standard to Hammonds’s claims. Our task is

therefore to determine whether any errors actually “had substantial and injurious

effect or influence in determining the jury’s verdict.”

Cir. 2009) (“Brecht is always the test, and there is no reason to ask both whether the state court
‘unreasonably’ applied Chapman under the AEDPA and, further, whether the constitutional error
had a ‘substantial and injurious’ effect on the jury’s verdict.”); Bond v. Beard, 539 F.3d 256,
275–76 (3d Cir. 2008) (“Fry instructs us to perform our own harmless error analysis under
Brecht . . . , rather than review the state court’s harmless error analysis under the AEDPA
standard.”); Burbank v. Cain, 535 F.3d 350, 356 (5th Cir. 2008) (noting that Brecht, rather than
AEDPA, “governs federal habeas review of constitutional errors that occur during a state trial”);
Golphin v. Branker, 519 F.3d 168, 189, 190 (4th Cir. 2008) (noting that “[t]he Brecht standard
applies even in cases like this one, in which the state courts did not consider the harmless nature
of a trial error” and observing that it would be “unnecessary to consider whether” the state court
unreasonably applied federal case law); see also Welch v. Workman, 639 F.3d 980, 992 (10th
Cir. 2011) (applying Brecht standard to determine whether constitutional error warranted
granting writ); Jackson v. Norris, 573 F.3d 856, 858 (8th Cir. 2009) (applying Brecht standard
and citing Fry). But see Johnson v. Acevedo, 572 F.3d 398, 404 (7th Cir. 2009) (applying the
AEDPA standard first, and proceeding to Brecht only if the state court’s determination was
unreasonable).
                                                20
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      Brecht requires “more than a reasonable possibility that the error contributed

to the conviction or sentence.” Mansfield v. Sec’y, Dep’t of Corr., 679 F.3d 1301,

1313 (11th Cir. 2012) (quotation marks and citation omitted).           To determine

whether a constitutional error substantially and injuriously influenced the verdict,

we consider the error “‘in relation to all else that happened’ at trial.” Trepal, 684

F.3d at 1114 (quoting Kotteakos, 328 U.S. at 764). Where the State’s evidence

was overwhelming, the constitutional error is unlikely to have substantially

influenced the jury’s verdict. See Hill v. Turpin, 135 F.3d 1411, 1417 (11th Cir.

1998).

                               IV. APPLICATION

      We first assess whether any alleged constitutional error as to which we

granted a certificate of appealability occurred during Hammonds’s trial. Only after

finding that such an error occurred do we determine whether the error had

substantial and injurious effect or influence in determining the jury’s verdict.

A. Identifying Constitutional Error

      As we have noted, Hammonds asserts that the State committed two

constitutional violations during his trial.      First, Hammonds complains about

Valeska’s statement, “Let him testify.”         And second, Hammonds challenges

Valeska’s statement during closing that Hammonds “couldn’t keep the stories

straight in prison.” We address each in turn.


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      1. The Griffin Error: “Let him testify.”

      Hammonds argues that the prosecutor’s first statement, which referred to his

decision not to testify, violated his Fifth Amendment right against self-

incrimination. He’s right.

      The Fifth Amendment—applicable to the states through the Fourteenth

Amendment—prohibits a prosecutor from commenting on a defendant’s choice not

to testify. Griffin, 380 U.S. at 614-15. A comment amounts to a constitutional

violation where it was “manifestly intended to be a comment on the defendant’s

failure to testify” or it was “of such a character that a jury would naturally and

necessarily take it to be a comment on” the defendant’s silence. Isaacs v. Head,

300 F.3d 1232, 1270 (11th Cir. 2002) (citation omitted).

      Valeska’s “Let him testify” remark plainly violated Hammonds’s Fifth and

Fourteenth Amendment right against self-incrimination and therefore constituted

Griffin error. Indeed, even Valeska admitted to the trial judge that he intended his

remark to refer to Hammonds’s refusal to testify—this after the judge had

expressly instructed Valeska not to comment on Hammonds’s exercise of his Fifth

Amendment right.

      We are very disturbed by Valeska’s behavior.          Not only did Valeska

intentionally refer to Hammonds’s decision not to testify, but he did so in flagrant

violation of the court’s pre-trial order—an order that should not have even been


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necessary in the first place, since it is a basic tenet of constitutional law that the

government may not use against the defendant his decision not to testify. And the

instruction really should not have been necessary in Hammonds’s case, since

Valeska had been reprimanded in prior cases for engaging in precisely the same

unconstitutional and unethical behavior.

      We are further deeply disappointed that throughout this appeal, the State has

perpetuated the charade that Valeska did not intend to refer to Hammonds’s

decision not to testify. In its brief, the State characterized Valeska’s “Let him

testify” statement as “a few stray words” and an “offhand comment[].” And at oral

argument, the State repeatedly downplayed the statement as an “offhand remark.”

But, as we have recounted, Valeska’s history and his own words at Hammonds’s

trial betray the State’s white-washing of its prosecutor’s actions. Yet the State

continues to act as if Valeska, an experienced prosecutor, inadvertently violated

one of the most basic tenets of criminal trial law. And it does so, even though the

Alabama Supreme Court itself expressed disapproval of Valeska’s blatant

disregard of his ethical responsibilities as a prosecutor. See Hammonds II, 777 So.

2d at 778. The State’s insistence on defending this improper conduct implicitly

condones the unethical tactics that Valeska used, and it invites the State’s current

crop of prosecutors to likewise engage in such unsavory conduct.




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       For this reason alone, we, like the Alabama Supreme Court, see id., are

tempted to grant Hammonds’s petition. But as we have explained, we cannot do so

unless Valeska’s conduct actually prejudiced Hammonds—an issue we will

explore later in this opinion. We can, however, provide the Alabama State Bar

with a copy of our opinion for consideration of Valeska’s conduct, and we will do

so.

       2. The Williams Error: “[Hammonds] couldn’t keep the stories straight in
       prison”

       Hammonds also argues that the prosecutor’s second improper statement, that

Hammonds “couldn’t keep the stories straight in prison,” violated his constitutional

right to a fair trial under the Fourteenth Amendment.

       The Fourteenth Amendment guarantees the right to a fair trial, of which

“[t]he presumption of innocence . . . is a basic component.” Williams, 425 U.S. at

503.    The Supreme Court has held that states may not compromise that

presumption by requiring imprisoned defendants to wear prison garb during trial.

Id. at 503-13. This requirement constantly reminds the jury “of the accused’s

condition” and invites “impermissible factors” to infiltrate the jury’s deliberation.

Id. at 504-05. We refer to any error that impairs the presumption of innocence

through imprisonment references as Williams error.

       A prosecutor’s repeated statements directly referencing a defendant’s

imprisonment may likewise compromise the right to a presumption of innocence.
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See United States v. Villabona-Garnica, 63 F.3d 1051, 1058 (11th Cir. 1995). But

we have previously explained that, “[w]hile use of such words as ‘jail,’ ‘prison,’

[and] ‘arrest’ are[] generally to be avoided, where irrelevant, the mere utterance of

the word does not, without regard to context or circumstances, constitute reversible

error per se.” United States v. Veteto, 701 F.2d 136, 139–40 (11th Cir. 1983)

(quoting United States v. Barcenas, 498 F.2d 1110, 1113 (5th Cir. 1974) (quotation

marks omitted)). Hammonds cites no authority suggesting that a single mention of

a defendant’s imprisonment amounts to a constitutional violation as articulated in

Williams.

      Unlike the “Let him testify” comment, Valeska’s mention of Hammonds’s

imprisonment was, in context, a passing reference subordinate to his point that

Hammonds’s prior testimony was inconsistent. The prison remark was an isolated

statement and was not, like a defendant’s sporting prison garb, a “constant

reminder of the accused’s condition” or “a continuing influence throughout the

trial.” Williams, 425 U.S. at 504-05. We have previously held that a government

witness’s “two to three minute monologue” about how difficult it was to obtain and

view tapes in prison facilities with the defendant over a year-and-a-half period was

“quite brief” and therefore “unlikely to prejudice the jury sufficiently to rise to the

level of a due process violation.” Villabona-Garnica, 63 F.3d at 1058. While the

fact that the prosecutor improperly referenced Hammonds’s imprisonment is


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obviously more serious than the fact that a witness mentioned the defendant’s

imprisonment in Villabona-Garnica, Valeska’s single mention of “prison” is far

less substantial than the Villabona-Garnica witness’s two-to-three-minute-long

monologue.      If the Villabona-Garnica witness’s violation did not constitute

Williams error, we cannot say that Valeska’s reference to Hammonds’s

imprisonment was constitutional error.          We are nonetheless cognizant of the

inappropriate statement and consider it along with the rest of the record in

conducting our plenary review. See Brecht, 507 U.S. at 642 (“The purpose of

reviewing the entire record is, of course, to consider all the ways that error can

infect the course of a trial.”) (Stevens, J., concurring).

B. Determining Whether the Griffin Error Actually Prejudiced Hammonds

      Keeping in mind that Brecht’s standard is more forgiving than AEDPA’s

standard requiring a petitioner to show that the state court’s determination of

harmlessness beyond a reasonable doubt was unreasonable, Hammonds does not

show that the Griffin error, even taking into account the inappropriate prison

remark, actually prejudiced the verdict against him. Two main factors lead us to

that conclusion: first, the court issued a curative instruction immediately following

the improper Griffin comment; and second, the State presented overwhelming

evidence of Hammonds’s guilt to the jury.

      1. The Curative Instruction


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      We discuss the court’s curative instruction first, noting the trial judge issued

it to the jury immediately following the Griffin error. The court instructed the jury

to disregard the prosecutor’s statement and to not draw a “presumption of guilt”

from Hammonds’s decision not to testify. “Few tenets are more fundamental to

our jury trial system than the presumption that juries obey the court’s instructions.”

United States v. Stone, 9 F.3d 934, 938 (11th Cir. 1993).          The trial judge’s

instruction to the jury to disregard the prosecutor’s improper remark immediately

blunted its impact.

      Hammonds attacks this curative instruction in numerous respects in an effort

to show that it only compounded the mischief sowed by the prosecutor’s improper

remark.    Although Hammonds points to legitimate flaws, none compels a

conclusion that the Griffin error improperly infiltrated the jury’s determination.

      First, Hammonds points out that the court neglected to admonish the jury to

draw no adverse inference from his decision not to testify. See Carter v. Kentucky,

450 U.S. 288, 300 (1981) (“[T]he Fifth Amendment requires that a criminal trial

judge must give a ‘no-adverse-inference’ jury instruction when requested by a

defendant to do so.”). The trial transcript reveals that Hammonds’s counsel did not

specifically request a “no-adverse-inference” curative instruction, nor did he

formally object to the curative instruction given. Hammonds nonetheless contends




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that the jury did not know to consciously dispense of any adverse inferences

stemming from his decision not to testify.

       True, the curative instruction was not a model of clarity. Still, we cannot

conclude that its imprecision caused the jury to draw any adverse inference, even

after Valeska rendered Hammonds’s decision not to testify conspicuous. For one

thing, the curative instruction made up for what it lacked: the trial court instructed

the jury to disregard Valeska’s “Let him testify” remark; to draw no presumption

from Hammonds’s exercise of his Fifth Amendment privilege; and to not consider

statements by counsel as evidence in its deliberations. We have previously upheld

a trial court’s instruction that the jury not consider a defendant’s choice not to

testify, even though the defendants proposed a no-adverse-inference instruction.

United States v. Russo, 796 F.2d 1443, 1455 (11th Cir. 1986).6                           In fact, we

considered that instruction “broader and more beneficial” to defendants. Id.

       In any case, the curative instruction “sufficiently covered the substance” of

what the jury needed to know: that it was not supposed to allow the fact that
       6
           In Russo, the trial court instructed the jury,

                         The indictment or formal charge against any Defendant is
                 not evidence of guilt. Indeed, the Defendant is presumed by the
                 law to be innocent. The law does not require a Defendant to prove
                 his innocence or produce any evidence at all; and if a Defendant
                 elects not to testify, you should not consider that in any way during
                 your deliberations. The government has the burden of proving a
                 Defendant guilty beyond a reasonable doubt, and if it fails to do so
                 you must find the Defendant not guilty.

796 F.2d at 1454-55.
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Hammonds did not testify to inform its decision about his guilt. United States v.

Castaneda, 94 F.3d 592, 596 (9th Cir. 1996) (noting that “the specific words ‘no

inference’ . . . are preferable but not required under Carter” and holding that the

instruction, “[t]he defendant is presumed to be innocent and does not have to

testify or present any evidence to prove innocence,” “sufficiently covered the

substance” of defendant’s proposed no-adverse-inference instruction).

      Second, Hammonds argues that the court’s jumbled instruction aggravated

the Griffin error by undermining the presumption of innocence to which he was

entitled. According to Hammonds, the instruction “improperly stated that the jury

should not draw a presumption of innocence, even though the presumption of

innocence is to remain with the defendant throughout the trial.” As a result, he

contends, the instruction was not curative.

      Hammonds is correct that the instruction may be read to contradict the jury’s

duty to presume Hammonds innocent.            But the instruction’s curative context

lowers the risk that the jury would hyper-technically interpret it as Hammonds

fears and accordingly allow Hammonds’s decision not to testify to infringe on his

presumed innocence. Indeed, the likelihood that, but for the instruction, the jury

would have entertained a favorable inference from Hammonds’s decision not to

testify is slim.   See Griffin, 380 U.S. at 614 (observing that comment on a

defendant’s decision not to testify is verboten in order to avoid “solemniz[ing] the


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silence of the accused into evidence against him” (emphasis added)). To the

extent the instruction prohibited the jury from allowing Hammonds’s decision not

to testify to inform its determination in either direction, it was imperfect but not

prejudicial. See Russo, 796 F.2d at 1455; see also United States v. Padilla, 639

F.3d 892, 896-97 (9th Cir. 2011) (concluding on direct review that instruction that

“the jury could not ‘consider[ ] that the defendant may not have testified’” was

constitutionally adequate).

      We also cannot say that the curative instruction’s failure to accurately

convey the presumption of innocence exacerbated the Griffin error to the point of

negatively influencing the determination of the jury’s verdict for an additional

reason.       Significantly, the trial court properly instructed the jury on the

presumption of innocence on at least seven occasions. During voir dire, the court

instructed,

               As he [Hammonds] sits before you now, he is presumed
               to be innocent. The State must prove his guilt beyond a
               reasonable doubt before you can find him guilty.

After closing argument, the court instructed the jury six more times regarding the

presumption of innocence to which Hammonds was entitled. For instance, the

court defined the presumption of innocence for the jury as follows:

               Now, the attorneys have used several terms during the
               course of the trial which are legal terms and I will define
               those terms to you. One, of course, is presumption of
               innocence. The Defendant is presumed to be innocent

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              until he is proven guilty, beyond a reasonable doubt, by
              the evidence in this case. He comes into Court cloaked
              with this presumption and this presumption follows him
              throughout the course and proceedings of the trial until
              the evidence produced by the State convinces each of
              you, beyond a reasonable doubt, as to his guilt. The
              presumption of innocence is to be regarded by you, the
              Jury, as a matter of evidence to the benefit of which the
              accused is entitled.
The court similarly instructed the jury on the burden of proof as follows:

              The Defendant is presumed innocent at all stages of the
              trial until guilt is proven beyond a reasonable doubt. The
              burden is never on the Defendant to establish his
              innocence or to disprove a fact necessary to establish a
              crime of which he is charged. 7


       7
        The remaining four jury instructions on the presumption of innocence included the
following:

   (1) The presumption of innocence with which the Defendant enters into the trial is a fact in
       the case which must be considered with all the evidence and is not to be disregarded by
       you. There is a presumption of innocence, a cloak of innocence wrapped around the
       shoulders of the Defendant when he walked in the Court. The presumption of innocence
       would not require this Defendant to prove anything. This presumption not only walks
       through the door with the Defendant, but remains wrapped around his shoulder like a
       cloak until the burden of proof is met by the State of Alabama.

   (2) It is your duty to presume Artez Hammonds innocent, to give him the benefit of that
       presumption, all through the trial and in every stage of your investigation of the evidence
       in a Jury Room until it is over come, if it shall be over come, by proof beyond a
       reasonable doubt. The evidence, in order to deprive the Defendant of the benefit of this
       humane presumption of law, but [sic] not only be consistent with the theory of guilt, but
       must be inconsistent and exclude every reasonable theory of innocence. And, as long as
       you are able to reconcile the evidence with any reasonable theory of Artez Hammonds’
       innocence, the law makes it your duty to do so.

   (3) It is a cardinal and important rule in our society that the Defendant in a criminal trial
       must always be presumed to be innocent of the crime for which he is charged until his
       guilt is proven beyond a reasonable doubt. This presumption of innocence does not cease
       when you retire to discuss this case. It accompanies Artez Hammonds from the time of
       his arrest through out the trial until you have reached a verdict, based upon testimony, to
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      The trial court also instructed the jury to draw inferences consistent with

Hammonds’s innocence:

              If conflicting inferences may be drawn from the same
              facts, the Jury should draw an inference consistent with
              innocence. . . .

              If you find different inferences can be drawn from the
              same facts, it is your duty to draw the inference
              consistent with the Defendant’s innocence.

      Additionally, the jury heard from Hammonds’s counsel during closing

argument the importance of the presumption of innocence:

              [T]he evidence starts in this case with the presumption of
              innocence. The judge will come in here and tell you and
              instruct you that the presumption of innocence is
              evidence that you take back into that jury room with you.
              Mr. Artez Hammonds is presumed to be innocent.

      Under these circumstances, we cannot conclude that the jury went to

deliberations unaware of its duty to presume Hammonds innocent. See United

States v. Ruppel, 666 F.2d 261, 274–75 (5th Cir. Unit A 1982) (rejecting argument

on direct review that trial court’s failure to issue a requested presumption-of-

innocence instruction was reversible error where trial court “charged the jury on

the presumption of innocence at the beginning of the trial and referred to these


      the exclusion of a reasonable doubt. It is your solemn duty to reconcile the facts proved
      with the presumption of innocence and acquit Artez Hammonds, unless you are
      convinced beyond a reasonable doubt that he is guilty.

   (4) The Court charges the Jury while reasonable inferences from the evidence may furnish a
       basis for proof beyond a reasonable doubt, mere possibility, suspicion, or guess work, no
       matter how strong, will not over turn the presumption of innocence.
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instructions at the outset of his final charge[] . . . [and] Appellant’s counsel referred

to the presumption of innocence during his closing argument”). We must therefore

reject the contention that the curative instruction rendered the Griffin error or the

misstatement on the presumption of innocence actually prejudicial.

      Third, Hammonds takes issue with the court’s use of the word “failure” in

the instruction that ended, “He cannot be compelled to testify against himself, and

that no presumption of guilt or innocence of any kind should be drawn from his

failure to testify” (emphasis added). Hammonds argues that “the term ‘failure’ in

this context itself conveys an adverse inference,” and cites United States v.

Skidmore, an opinion from the Seventh Circuit, in support. 254 F.3d 635 (7th Cir.

2001).

      In Skidmore, the Seventh Circuit opined that the use of the word “failure” in

this type of context “is problematic because . . . it carries with it the possible

implication from the court to the jury that [the defendant] has neglected a

responsibility to present testimony and other evidence.” Id. at 640. Nevertheless,

the Seventh Circuit did not find the trial court’s use of the word “failure” to have

inflicted plain error because the jury was otherwise properly instructed on the

presumption of innocence. Id.

      While we share the Seventh Circuit’s view that it would be better to avoid

use of the word “failure” in such an instruction, even assuming, arguendo, that


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error occurred, we cannot conclude that any error rose to the level of Griffin error.

And we cannot say that any error that might have occurred actually prejudiced

Hammonds. As in Skidmore, and as we have discussed, here, too, the jury received

sufficient instruction on the presumption of innocence. In addition, the trial judge

separately expressly instructed the jury,

             The Defendant did not testify in his own behalf in this
             case. That must not and you cannot take that into
             consideration either for or against the Defendant. The
             Defendant has the right to either testify in his own behalf
             or not testify in his own behalf. And, the fact that he
             does stay off the witness stand and does not testify
             cannot be taken and considered by the Jury when it goes
             out to weigh and consider all the testimony in this case
             and make up its verdict as to the guilt or innocence of the
             Defendant.

In short, Hammonds has not shown that the trial court’s curative instruction

exacerbated Valeska’s “Let him testify” comment to the point of effecting actual

prejudice.

      Hammonds next argues that Valeska’s remark that Hammonds couldn’t keep

his stories straight in prison compounded the Griffin error. In support of this

contention, Hammonds posits that the remark acted as a second, implicit reference

to his decision not to testify. He paraphrases the prosecutor’s remark as, “If he was

willing to tell his story in prison, why didn’t Mr. Hammonds get on the stand to tell

which version was correct during this trial?” Hammonds theorizes that the prison



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remark thus hearkened back to the “[L]et him testify” comment and compounded

its injurious effect.

       This argument cannot help Hammonds for three reasons. First, we do not

think Hammonds’s interpretation of the improper comment is a reasonable one;

second, Hammonds does not attack the statement for the purpose of asserting

Williams error; and third, even if he did, the court’s curative instructions rendered

any resulting Williams error harmless under the Brecht standard.

       First, the prison remark makes no mention of Hammonds’s decision not to

testify, and to read it as Hammonds does requires inventing text and even subtext

that isn’t there. In context, Valeska’s statement focused on Hammonds’s past

inconsistent statements which, had Valeska not mentioned the word “prison,”

would not have been improper. See Portuondo v. Agard, 529 U.S. 61, 65-73

(2000) (declining to extend the principle announced in Griffin to a prosecutor’s

comments attacking a defendant’s credibility). Juries may appropriately consider a

defendant’s credibility, so a prosecutor’s otherwise proper comment on a

defendant’s credibility cannot inject harm into the jury’s deliberation. See id. at

67-68. Hammonds cites no authority for the proposition that an otherwise proper

comment on a defendant’s credibility necessarily exacerbates a Griffin error.

       Second, Hammonds does not attack the aspect of the prison remark—

“prison”—that makes it inappropriate. Instead, he relies on it solely to bolster his


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claim of Griffin error. And as we have discussed, even if Hammonds had relied on

the remark to demonstrate Williams error, the remark does not reach the level of a

due-process violation under our Circuit precedent.

      Third, the instruction the trial court issued following the prison remark

rendered harmless any conceivable Williams error. Although Hammonds faults the

curative instruction for neglecting to convey to jurors that they should disregard

the prison remark, the court instructed the jury that the lawyers’ statements were

argument and not evidence, and that the jury must not consider the attorneys’

statements as evidence. A prosecutor’s “improper statements can be rectified by

the district court’s instruction to the jury that only the evidence in the case be

considered.” United States v. Smith, 918 F.2d 1551, 1562 (11th Cir. 1990). So

even assuming, arguendo, that Hammonds asserted a true claim of Williams error,

he has not shown actual prejudice resulting from it.

      Finally, Hammonds urges us to bear in mind in conducting our review that

the risk of harm accrued with each successive trial error or misstep. He relies on

our decision in United States v. Blakey in arguing that the cumulative effect of the

prosecutor’s improper statements and the curative instructions’ flaws was harmful

enough to warrant granting his habeas petition. 14 F.3d 1557 (11th Cir. 1994). In

Blakey, we reversed a conviction on direct review where the prosecutor told the

jury the defendant was a “professional criminal”; the trial court’s curative


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instruction “unintentionally amplified the prosecutor’s error”; and the prosecutor

made an improper burden-shifting remark during closing argument. Id. at 1559-

61.   We stated that “[f]or comments such as those made in this case to be

considered harmless, the evidence against [the defendant] must be overwhelming.”

Id. at 1561 (citing United States v. McRae, 593 F.2d 700, 706 (5th Cir. 1979) (en

banc)); see also Hill, 135 F.3d at 1417 (compiling cases where the weight of the

evidence played a significant role in the determination whether a constitutional

trial error was harmless, even under more lenient “harmless beyond a reasonable

doubt” standard articulated in Chapman). We found that the evidence against the

defendant in Blakey was not overwhelming. Id.

      2. The Evidence of Hammonds’s Guilt

      By contrast, here, the State produced overwhelming evidence of

Hammonds’s guilt.     For example, the evidence demonstrated Hammonds was

present with Mitchell inside her townhouse the day before her body was found

there. It further indicated that Hammonds was there when Mitchell was raped and

violently attacked. Indeed, Hammonds’s DNA matched the DNA extracted from

sperm obtained from Mitchell’s vaginal and anal cavities and from a paper tissue at

the crime scene, as well as the DNA from blood spatters inside the townhouse.

And Hammonds’s thumbprint was found on the telephone in Mitchell’s bedroom.

The evidence also showed that after the killing, Hammonds possessed a diamond


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ring similar in appearance to Mitchell’s missing engagement ring, before pawning

it.

      In light of this overwhelming evidence, we cannot conclude that the

cumulative effect of the Griffin error, any Williams error, and the less-than-perfect

curative instructions, were harmful in the Brecht sense, particularly in light of the

other curative instructions that the court provided. See Grossman v. McDonough,

466 F.3d 1325, 1340 (11th Cir. 2006) (holding Confrontation Clause violation

harmless under Brecht standard in light of overwhelming evidence, which included

fingerprint evidence, inculpatory testimony, and the murder victim’s charred shoes

which defendant had attempted to burn).

                               V. CONCLUSION

      The prosecutor’s “Let him testify” and prison remarks were entirely

improper, particularly in view of the prosecutor’s history.              Nevertheless,

Hammonds is not entitled to habeas relief unless he can show that the prosecutor’s

remarks had a substantial and injurious effect on the determination of the jury’s

verdict—a standard for showing harmfulness more exacting than AEDPA’s

requirement that the Alabama court have unreasonably determined that the errors

Hammonds raised were harmless.         But, for the reasons we have discussed,

Hammonds cannot show that the Griffin error, alone or in combination with any

other error, actually prejudiced him under Brecht. Nor has he shown any Williams


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error. We therefore affirm the district court’s denial of Hammonds’s petition for a

writ of habeas corpus.

      AFFIRMED.




                                        39
