                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 11a0870n.06

                                       No. 09-4543                                   FILED
                                                                                Dec 21, 2011
                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT                        LEONARD GREEN, Clerk


GAREY SMITH,                                  )
                                              )
       Petitioner-Appellant,                  )
                                              )   ON APPEAL FROM THE UNITED
v.                                            )   STATES DISTRICT COURT FOR THE
                                              )   SOUTHERN DISTRICT OF OHIO
JOHN COLEMAN, Warden,                         )
                                              )
       Respondent-Appellee.                   )




       Before: DAUGHTREY, CLAY, and STRANCH, Circuit Judges.




       MARTHA CRAIG DAUGHTREY, Circuit Judge. Petitioner Garey Smith, an Ohio

prisoner proceeding pro se, appeals the district court’s judgment denying his request for

relief under the federal habeas statute, 28 U.S.C. § 2254. In the district court, Smith raised

various claims, but the only issue certified by the district court for our review concerns

Smith’s contention that he was denied due process based on prosecutorial misconduct –

specifically, improper comments made during the rebuttal portion of the state’s closing

argument. The district court adopted the report and recommendation of the magistrate

judge, who reviewed the petitioner’s claims de novo, an exercise we find unnecessary,

given that the Ohio Court of Appeals had already reviewed the issue on direct appeal and
No. 09-4543
Smith v. Coleman

resolved it appropriately. We nevertheless affirm the denial of relief, concluding that the

result reached by the district court was correct.


       The charges against Smith were based on a 2001 shooting incident that resulted

in the death of one victim, Jimmy Gordon, and serious injury to three others. Smith never

denied that he shot the four men, but he claimed that he acted in self-defense after the

victims had advanced on him in a threatening manner. As it turned out, however, Smith

was the only one armed, and all the shots fired came from his weapon. Because the three

wounded victims were available to testify, along with several bystanders and police officers

who arrived on the scene, it became necessary to destroy the credibility of virtually all the

state’s witnesses at trial in order to maintain Smith’s theory of self-defense.           The

prosecutor’s response to that trial strategy produced the legal dispute now before us. It

arose during the second trial in a convoluted path of litigation that resulted in three trials

in state court, two direct appeals, a state postconviction hearing and appeal, two federal

habeas proceedings, and at least three appeals filed in this court, one other of which is still

pending, bearing case number 10-3280.1


       1
        In 2002, a jury found Smith guilty of a single count of murder, two counts of
attempted murder, six counts of felonious assault with firearm specifications, and
possession of a weapon while under a disability. The Ohio Court of Appeals reversed the
convictions and remanded the case for a new trial because Smith was denied the right to
represent himself. State v. Smith, No. C-020610, WL 102285 (Ohio Ct. App. Jan. 23,
2004). At a second trial, the jury found Smith guilty of six counts of felonious assault and
possession of a weapon under a disability; but the jury could not reach a verdict on the
murder charge. The Ohio Court of Appeals reversed two of the assault convictions and
remanded for re-sentencing. State v. Smith, 168 Ohio App.3d 141, 858 N.E. 2d 1222
(2006). It is the second trial and conviction that is the subject of the current habeas

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        The habeas petition now before us, charging prosecutorial misconduct occurring in

Smith’s second state trial, is governed by provisions of the Antiterrorism and Effective

Death Penalty Act of 1996, P.L. 104-132, 110 Stat. 1214 (1996) (AEDPA), which directs

the federal courts to review constitutional claims decided by the state courts on the merits

under the following standards:


        An application for writ of habeas corpus on behalf of a person in custody
        pursuant to the judgment of the state court shall not be granted with respect
        to any claim that was adjudicated on the merits in State court proceedings
        unless the 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.
                                        * * * * *
        In a proceeding instituted by an application for a writ of habeas corpus by a
        person in custody pursuant to the judgment of a State court, a determination
        of a factual issue made by a State court shall be presumed to be correct.
        The applicant shall have the burden of rebutting the presumption of
        correctness by clear and convincing evidence.


28 U.S.C. §§ 2254(d)(1), (d)(2), and (e)(1).



litigation.

         The question in No. 10-3280 is unrelated to the claim raised here. It involves the
Double Jeopardy Clause, which Smith invoked both before, during, and after his second
trial, claiming that his retrial after reversal of his initial conviction by the Ohio Court of
Appeals violated the constitutional protection against twice being placed in jeopardy.

        At a third trial, Smith was acquitted of murder.

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Smith v. Coleman

       In this case, the district court adopted the magistrate judge’s report and

recommendation, including the magistrate’s determination that the merits of Smith’s claim

should be reviewed de novo because the state court had analyzed the constitutional issues

under state rather than under federal law. However, our study of the state court record

indicates that the Ohio Court of Appeals, the last court to review the matter, did, in fact, rely

at least in part on United States Supreme Court precedent, specifically applying the

reasoning of Smith v. Phillips, 455 U.S. 209, 219 (1982), for the proposition that

“[prosecutorial] misconduct review focuses on <the fairness of the trial, not the culpability

of the prosecutor.’” State v. Smith, 168 Ohio App.3d 141, 858 N.E. 2d 1222, 1246 (2006).

Moreover, we have recently been admonished by the Supreme Court that the limitations

in section 2254(d) apply even “when a state court’s order is unaccompanied by an opinion

explaining the reasons relief has been denied.” Harrington v. Richter, 131 S. Ct. 770,

784 (2011). As a result, “a state court need not cite or even be aware of [Supreme Court]

cases” in order to withstand challenge in section 2254 cases. Id. (citing Early v. Packer,

537 U.S. 3, 8 (2002) (per curiam)); see also Treesh v. Bagley, 612 F.3d 424, 429 (6th Cir.

2010) (internal quotation marks and citation omitted), cert. denied, 131 S. Ct. 1678 (2011)

(“[T]he state court decision need not cite Supreme Court cases, or even evince an

awareness of [them], so long as neither the reasoning nor the result of the stat-court

decision contradicts them.”).


       It follows that the district court was not required to review Smith’s claims de novo

and, instead, should have done so under the dictates of AEDPA , i.e., seeking to determine

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whether the Ohio Court of Appeals’s decision “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States” or was “based on an unreasonable determination of

the facts” in the case against Smith. 28 U.S.C. § 2254(d). As it turns out, however, the

result is the same under either standard, because the district court applied the same

constitutional due process standard as did the state court.


      On direct appeal from Smith’s convictions for felonious assault and related weapons

charges at his second trial, the state appeals court analyzed Smith’s prosecutorial

misconduct claim and concluded that Smith had not been deprived of a fair trial:


      The prosecution is generally entitled to a “certain degree of latitude” in
      closing argument, but it must not attempt to obtain a conviction by going
      beyond the evidence that is before the jury. State v. Smith (1984), 14 Ohio
      St.3d 13, 14, 14 OBR 317, 470 N.E.2d 883. The trial court in its discretion
      generally determines the propriety of closing arguments. See State v.
      Maurer (1984), 15 Ohio St.3d 239, 269, 15 OBR 379, 473 N.E.2d 768.
      Where defense counsel has objected to improper remarks in closing
      argument, a conviction should be reversed if the improper remarks
      “prejudicially affected substantial rights of the defendant.” Smith, 14 Ohio
      St.3d at 14, 14 OBR 317, 470 N.E.2d 883. Thus, unless the trial court has
      taken specific actions that have tempered the prejudice from the comments,
      “it must be clear beyond a reasonable doubt that, absent the prosecutor's
      comments, the jury would have found [the] defendant guilty.” Id. at 15, 14
      OBR 317, 470 N.E.2d 883. Where the defendant has failed to object to
      improper comments, this court will reverse only when the defendant has
      demonstrated plain error. Plain error is an obvious error or defect in the trial
      affecting substantial rights and “but for the error, the outcome of the trial
      court clearly would have been otherwise.” State v. Williams (1997), 79 Ohio
      St.3d 1, 12, 679 N.E.2d 646; see, also, Crim.R. 52(B).
      Smith objected several times during the state's rebuttal closing argument.
      First, Smith objected after the prosecutor accused defense counsel of

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     “sandbagging” the state by using Franklin's medical records in closing
     argument to undermine Franklin's credibility. The medical records indicated
     that Franklin was shot in the front of his leg, contradicting Franklin's
     testimony that he was shot in the back of his leg. The medical records were
     admitted into evidence, but defense counsel did not cross-examine Franklin
     on this discrepancy. Rather, defense counsel referred to the medical records
     in closing argument to discredit Franklin's testimony that he was attempting
     to flee when he was shot.
     The “sandbagging” accusation was improper and unfounded. See Williams,
     79 Ohio St.3d at 14, 679 N.E.2d 646. The state had possessed Franklin's
     medical records for over three years and had used them in Smith's first trial.
     But Smith's objection to the derogatory reference to defense counsel was
     sustained, and the trial court instructed the jury to disregard the comment.
     Next, Smith complains that the prosecutor improperly insinuated to the jury
     that defense counsel did not believe his client's defense. The prosecutor
     stated in reference to Smith's closing argument, “We give closing argument.
     We're going to talk about self-defense for five minutes. That's how strong
     that self-defense theory is, isn't it? Five minutes of an hour-and-a-half
     closing argument. We don't want to get anywhere near that self-defense
     argument.”
     Smith objected, but before the court could rule, the prosecutor added,
     “Because his story is so incredible.” The trial court overruled Smith's
     objection to these comments.
     The prosecutor's first comment was improper for two reasons: (1) it
     mischaracterized Smith's closing argument, which almost in its entirety
     refuted the state's claim that Smith did not shoot the victims in self-defense,
     and (2) it attempted to present the jury with the irrelevant but potentially
     prejudicial insinuation that defense counsel personally thought that Smith
     was guilty. See State v. Keenan (1993), 66 Ohio St.3d 402, 405-406, 613
     N.E.2d 203. But the prosecutor had earlier made a similar comment that
     Smith had not objected to, and the jury was informed on several occasions
     that closing argument was merely argument.
     The prosecutor's additional comment that Smith's claim of self-defense was
     “incredible” came close to an improper expression of the prosecutor's
     personal opinion about Smith's guilt. But the prosecutor followed the
     comment with a summary of the state's evidence contradicting Smith's
     defense, rendering the comment arguably within the latitude afforded
     counsel. Id. at 408, 613 N.E.2d 203.



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       Later, the prosecutor cited matters not in evidence when he insinuated that
       Smith had come up with his self-defense theory only after the crime
       laboratory found gunshot residue on Gordon. The prosecutor had made a
       similar statement earlier in closing argument, when he, without objection,
       “testified” that Smith did not claim self-defense when proceedings were first
       instituted against him.
       But the prosecutor did tie this argument to the evidence by illustrating that
       Smith did not mention self-defense to Pat Barry when Barry drove Smith to
       the police station to turn himself in. Further, after Smith objected to the
       comment about the timing of the defense in relationship to the release of the
       crime lab report, the trial court informed the jury that closing argument was
       not evidence and that the jury was to determine the facts of the case.
       We hold that the trial court's actions in response to Smith's objections were
       sufficient to eliminate any prejudice from the prosecutor's misconduct, and
       that the jury would have found Smith guilty absent the prosecutor's improper
       remarks.
       Next we review other comments that Smith alleges were improper but that
       were not objected to at trial. The prosecutor referred to defense counsel's
       attack on the credibility of the state's witnesses as “outrageous” and called
       the self-defense theory “ridiculous.” The prosecutor also attempted to inject
       emotion into the jury's deliberations and again “testified” by adding, “I'm
       fighting for Jimmy Gordon. If you think the Prosecutor's Office--I guess, you
       know, I guess there is [sic] some people out there that say, well, they don't
       fight for a black, a black person who is a drug dealer. Well, I got news for
       you, that's exactly what Dave and I, Dave Feldhaus, are doing.” But Smith
       did not object to these remarks, and they were not so egregious in the
       context of the entire trial that they denied Smith a fair trial, especially in light
       of the substantial evidence in support of his conviction.


Smith, 858 N.E.2d at 1244-46.


       After a careful review of the record, we are not persuaded that findings by the Ohio

Court of Appeals was appropriate in every respect. For example, defense counsel did, in

fact, devote very little of his closing argument to the specifics of his theory of self-defense,

instead attacking at great length the credibility of the prosecuting witnesses, even the

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disinterested bystanders, and arguing that the police witnesses were “shading their

testimony” to “cover their butts.” Indeed, the nature and extent of the defendant’s closing

argument led the federal magistrate judge to rule that many of the prosecutor’s challenged

comments in response were, at most, “invited error.” As for the prosecutor’s comment

about “sandbagging,” it was undoubtedly meant to imply that the jury was being

sandbagged in some sense, not that defense counsel was trying to sandbag the state.

Nevertheless, it is quite obvious from these two instances, as well as others, that any

questionable calls made by the Ohio Court of Appeals were made in the defendant’s favor

and not the state’s. Despite its apparent misgivings about the tone and content of the

closing arguments, the state court was able to find, reasonably we conclude, that the

prosecutor’s comments in closing argument had not deprived Smith of a fair trial.


       Federal law is well-established along the same lines of analysis as that employed

by the state court in this case. In order to warrant relief in a federal habeas case, a

prosecutor’s misconduct must have been so egregious that it “infected the trial with

unfairness [so] as to make the resulting conviction of denial of due process.” Donnelly v.

DeChristoforo, 416 U.S. 637, 643 (1974). Given the substantial amount of evidence of

guilt, the fact that the challenged comments were confined to closing argument, and the

state trial judge’s curative instructions to the jury, it follows that the opinion of the Ohio

Court of Appeals was not “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States,” nor

was it “based on an unreasonable determination of the facts in light of the evidence

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presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1) and (2). Hence, there

was no basis on which to premise habeas relief, as the district court correctly concluded.


      For the reasons set out above, we AFFIRM the judgment of the district court.




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