Citations
- 628 F. Supp. 2d 1033
Full opinion text
MEMORANDUM AND ORDER
PAUL A. MAGNUSON, District Judge.
This matter is before the Court on the Report and Recommendation (“R & R”) of Chief Magistrate Judge Raymond L. Erickson dated March 17, 2009. In the R & R, the Magistrate Judge recommended that the Court deny the Petition for a Writ of Habeas Corpus in its entirety and dismiss this action with prejudice. Petitioner filed timely objections to the R & R.
According to statute, the Court must conduct a de novo review of any portion of the Magistrate Judge’s opinion to which specific objections are made. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b); D. Minn. L.R. 72.2(b). Based on that de novo review, the Court adopts the R & R.
BACKGROUND
Petitioner was convicted in Minnesota state court of several counts of robbery, assault, and theft arising out of his attempt to shoplift frozen shrimp from a Rainbow Foods grocery store in Minneapolis, Minnesota. He is now serving a sentence of 98 months in a Minnesota state correctional facility. He brought this Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254, contending that several aspects of his trial violated his rights under the United States Constitution.
Petitioner’s specific contentions are difficult to discern. Magistrate Judge Erickson discussed the five grounds for relief raised in the Petition itself: (1) the allegedly improper mention of race during the prosecutor’s closing argument; (2) the allegedly improper disqualification of a black juror; (3) the prosecutor’s restricted law license; (4) alleged ineffective assistance of counsel in failing to introduce evidence of Petitioner’s own post-arrest injuries; and (5) alleged ineffective assistance of trial counsel in failing to call a medical expert to testify. However, in his Objections to the R & R, Petitioner seems to have abandoned some of these claims and raised at least one new claim. Objections to an R & R are not the appropriate place to raise new claims for relief. However, given that neither the initial claims nor the new claim have any merit, the Court finds that there is no reason to allow Petitioner to amend the Petition to include the new claim. The Court will discuss this claim as if fully presented in the Petition.
DISCUSSION
The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) strictly limits a federal court’s power to review habeas petitions brought by state-court prisoners. In particular, the AEDPA restricts the Court’s review to state-court adjudications of the direct appeal or habeas petition that:
(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.
28 U.S.C. § 2254(d). Moreover, this Court may not consider claims that were not presented to the state courts either on direct appeal or in post-conviction proceedings unless Petitioner can show cause for his failure to so present the claims and prejudice as a result, or can establish his actual innocence. See Weeks v. Bowersox, 119 F.3d 1342, 1349 (8th Cir.1997) (“A state prisoner wishing to raise claims in a federal petition for a writ of habeas corpus ordinarily must first present those claims to the state court....”); Reagan v. Norris, 279 F.3d 651, 656 (8th Cir.2002) (setting forth cause and prejudice standard for procedurally defaulted habeas claims).
This case is unusual: Petitioner admits that he committed the underlying offense, namely shoplifting. (Obj. at 2) (“Simply because I was shoplifting shrimps for Christmas.”) He seems to believe, however, that the state should not have prosecuted him, or perhaps should have prosecuted him for a lesser offense, because he allegedly suffered injuries when Rainbow Poods employees attempted to subdue him after discovering the shoplifting. Thus, although Petitioner contends that some aspects of his trial were constitutionally deficient, he does not and cannot establish that, absent those deficient elements, he would not have been convicted of the crime charged. Moreover, none of Petitioner’s arguments in the Objections acknowledge the restrictive AEDPA standard quoted above. This Court cannot revisit a state court’s determinations merely because Petitioner claims that there was a “cover-up” or a “miscarriage of justice.” (Obj. at 1.) The only claims this Court may consider are claims that the state courts made a ruling that either was contrary to clearly established federal law or was an unreasonable application of that law. Petitioner has utterly failed to raise any such claims here.
A. Prosecutor’s Alleged Misconduct
Petitioner raises several distinct assertions with respect to the prosecutor’s conduct at his trial. First, he contends that the prosecutor improperly discussed race both in her closing argument and in questioning a witness. Second, he argues that the prosecutor improperly struck a black juror during voir dire.
A prosecutor’s comments will warrant habeas corpus relief only when those comments so infect the trial as to render the result constitutionally suspect. Roberts v. Bowersox, 137 F.3d 1062, 1066 (8th Cir. 1998). In other words, Petitioner cannot show a violation of his constitutional rights unless he can establish that the result of the trial would have been different absent the alleged prosecutorial misconduct about which he complains. Mack v. Caspari, 92 F.3d 637, 643 (8th Cir.1996).
This Court does not take lightly allegations of racial bias in criminal proceedings. It is a matter of great concern when a prosecutor improperly injects race into a criminal trial, either through comments or through improper preemptive strikes. In this case, however, Petitioner has not established that any of the comments the prosecutor made were improper. Rather, as Chief Magistrate Judge Erickson noted, those comments were in keeping with the evidence adduced at trial, which was that Petitioner told another Rainbow Foods security guard that because the guard was black and Petitioner was black, Petitioner would not attempt to shoplift during the guard’s work shift. It was not improper for the prosecutor to mention this testimony. Neither has Petitioner offered anything other than supposition surrounding the allegedly improper strike of a black juror from the venire. The Court cannot find racial bias or a constitutional violation from the mere fact that the prosecutor struck one black juror. Petitioner’s claims regarding alleged prosecutor misconduct are without merit and must be denied.
B. Ineffective Assistance of Counsel
To prove ineffective assistance of counsel, Petitioner must show that: “(1) his counsel so grievously erred as to not function as the counsel guaranteed by the Sixth Amendment; and (2) his counsel’s deficient performance prejudiced his defense.” Auman v. United States, 67 F.3d 157,162 (8th Cir.1995) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “Prejudice” requires a reasonable probability that the result of the proceeding would have been different but for counsel’s errors. York v. Lockhart, 856 F.2d 61, 63 (8th Cir.1988).
Petitioner claims that his trial counsel was constitutionally deficient in failing to introduce his medical records that allegedly showed that he was assaulted during the post-shoplifting altercation, and in failing to call a medical expert to testify about the alleged bite marks suffered by the security guard. Even if the jury had considered such evidence, however, the result of the proceeding would not have been different. Petitioner argues that a medical expert would have testified that the injuries the security guard suffered were not a result of Petitioner biting him but instead were a result of him striking Petitioner in the face, breaking Petitioner’s tooth. This evidence does not help Petitioner, but merely supports the prosecution witnesses’ testimony that Petitioner engaged in an altercation after he was discovered leaving the store with the frozen shrimp. Under the Strickland test, Petitioner has failed to show that the allegedly deficient performance of his trial counsel prejudiced Petitioner’s defense in any meaningful way. His claim on this ground must be denied.
C. Bite Mark Evidence
Apparently for the first time, Petitioner contends in his Objections that the admission of bite mark evidence unconstitutionally prejudiced his defense. He asserts that “The United States Supreme Court should give convicts a constitutional right to test ‘bite marks’ evidence.” (Obj. at 15.) In support of this assertion, he quotes from a newspaper article detailing false bite-mark testimony offered by a dentist in Mississippi state criminal proceedings.
Even if all bite mark evidence was suspect, as Petitioner apparently believes, Petitioner has not established what he is required to establish for relief under AED-PA, namely that there is a clearly established federal law with respect to bite mark evidence and that the state courts either ignored that law or unreasonably applied it. Absent federal law on the subject, the Court cannot entertain Petitioner’s claims.
CONCLUSION
Petitioner has failed to establish that the state courts acted in derogation of federal law. As Chief Magistrate Judge Erickson concluded, the Petition must be denied.
Accordingly, IT IS HEREBY ORDERED that:
1. The Report and Recommendation (Docket No. 16) is ADOPTED;
2. The Petition for a Writ of Habeas Corpus (Docket No. 1) is DENIED; and
3. This matter is DISMISSED with prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY
REPORT AND RECOMMENDATION
RAYMOND L. ERICKSON, United States Chief Magistrate Judge.
I. Introduction
This matter came before the undersigned United States Magistrate Judge pursuant to a general assignment, made in accordance with the provisions of Title 28 U.S.C. § 636(b)(1)(B), upon a Petition for a Writ of Habeas Corpus, under Title 28 U.S.C. § 2254.
The Petitioner Mark Anthony Hamilton (“Hamilton”), appears pro se, and the Respondent appears by Michael K. Walz, Assistant Hennepin County Attorney.
For reasons which follow, we recommend that the Petition for a Writ of Habeas Corpus be denied.
II. Factual and Procedural Background
Hamilton is a State prisoner, who is currently serving a ninety-eight (98) month sentence, at the Minnesota Correctional Facility, in Faribault, Minnesota. The sentence resulted from Hamilton’s conviction, by a Jury, on March 23, 2006, in Hennepin County District Court, on one (1) Count of First Degree Aggravated Robbery, one (1) Count of Second Degree Aggravated Robbery, one (1) Count of Second Degree Assault, one (1) Count of Terroristic Threats, and one (1) Count of Misdemeanor Theft. See, State v. Hamilton, 2007 WL 3076995 at *1 (Minn.App., October 23, 2007), rev. denied (Minn., January 15, 2008). The facts which led to Hamilton’s conviction were aptly summarized by the Minnesota Court of Appeals as follows:
In December 2005, Minneapolis police responded to a report of an assault and shoplifting incident at a Rainbow Foods store. The report identified appellant Mark Anthony Hamilton as a possible suspect. Police apprehended appellant and found a kitchen knife in his pocket. Police interviewed Zavier Awoudi and his supervisor Michael Davenport, both of Rainbow’s loss-prevention department. Awoudi alleged that appellant had attempted to steal merchandise from the store and, when confronted, bit Awoudi on the hand and threatened him with a knife. When police interviewed appellant he complained of a loose tooth and ear pain and, therefore, was transported to a hospital for treatment. Subsequently, appellant was charged with first-and second-degree aggravated robbery, second-degree assault, theft, and terroristic threats.
At trial, the state presented testimony from Awoudi, Davenport, and two Minneapolis police officers who were involved in the investigation. Awoudi and Davenport testified that they observed appellant remove two bags of frozen shrimp from the store without paying for them. Awoudi then confronted appellant as he was leaving the store by asking if there was “anything you might of forg[otten] to purchase?” Appellant tried to run away, but Awoudi grabbed his coat, saying, “just drop the bag[s] of shrimp and you can go.” Awoudi testified that appellant responded by biting his hand. When Awoudi extricated his hand, appellant threatened him with a knife and stated he was going to “f-ck him up.” Davenport and another employee broke up the scuffle, and then Davenport called the police. Awoudi subsequently was treated at the hospital for the bite on his hand.
Id.
After a Jury Trial, Hamilton was convicted on all charges. Id. On April 17, 2006, Hamilton was sentenced to ninety-eight (98) months in prison for First Degree Aggravated Robbery. See, State v. Hamilton, supra at *1; Petition, Docket No. 1, at 1; Respondent’s Memorandum, Docket No. 7, at 1.
After his conviction, Hamilton appealed to the Minnesota Court of Appeals, arguing that his alleged conduct did not meet the statutory elements, under Minnesota Statutes Section 609.245, Subdivision 1, for First Degree Aggravated Robbery, and that the evidence, which was presented at his Trial, was insufficient to support his conviction. See, State v. Hamilton, supra at *1-2. In addition, Hamilton raised claims, in his pro se supplemental brief, which attacked the credibility of the prosecution’s witness, and which raised issues that were not presented at his Trial, and he further alleged that he had not received the effective assistance of counsel. Id. at *3.
On October 23, 2007, the Minnesota Court of Appeals affirmed Hamilton’s conviction.- Id. at *1. The Court rejected Hamilton’s first four (4) claims on their merits. Id. at *1-3. With respect to his claim of ineffective assistance of counsel, Hamilton had advanced two (2) arguments: first, that his counsel failed to subpoena a witness who saw Hamilton shortly after his altercation at the Rainbow Foods store; and second, that his counsel failed to introduce photographs, which were taken shortly after Hamilton’s arrest, and which showed his tooth and ear injuries. Id, at *4. The Court rejected Hamilton’s claim, and noted that “[Hamilton’s] criticisms of the trial tactics employed by his counsel are not proper grounds for an ineffective-assistance-of-counsel claim.” Id. On January 15, 2008, the Minnesota Supreme Court denied Hamilton’s Petition for review. See, Petition, supra at 2.
Some time later, Hamilton filed a Petition for Post-Conviction relief in Hennepin County District Court, in which he raised several new arguments in challenging his conviction. Id. at 2-3. According to Hamilton, his Petition for Post Conviction relief alleged that exculpatory evidence was withheld, that witnesses had committed perjury, that improper racial comments had been made to the Jury, and that Hamilton was the actual victim, rather than the assailant. Id. at 3. On March 26, 2008, Hamilton’s Petition for Post Conviction relief was denied. Id.
On June 18, 2008, Hamilton filed his current Petition for Federal Habeas seeking relief under Section 2254. Hamilton raises the following five (5) grounds for relief: 1) that the prosecutor improperly spoke about race during her closing arguments; 2) that his constitutional rights were violated when the prosecutor disqualified a black juror; 3) that the prosecutor lacked the necessary Continuing Legal Education (“CLE”) credits that are required for a licensed attorney in the State of Minnesota; 4) that he received the ineffective assistance of counsel, because his counsel failed to present photographs that assertedly depicted his post-arrest injuries for the Jury; and 5) that he received ineffective assistance of counsel because his counsel failed to have a medical expert testify at his Trial. See, Petition, supra at 5-6, 9-10; Petitioner’s Response, Docket No. 12-2, at 5-6.
The Respondent opposes Hamilton’s Petition on both procedural and substantive grounds, and we consider the parties’ arguments in turn.
III. Discussion
A. Standard of Review. “[A] district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” Title 28 U.S.C. § 2251(a). “In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). As a result, before a Writ may issue, a petitioner must establish that the State’s exercise of custody over his person is an affront to the Constitution, a Federal law, or a Federal treaty. Id.-, see also, Lupien v. Clarke, 403 F.3d 615, 619 (8th Cir.2005); Newton v. Kemna, 354 F.3d 776, 782 (8th Cir.2004), cert. denied, 543 U.S. 979, 125 S.Ct. 485, 160 L.Ed.2d 357 (2004); Robinson v. Leapley, 26 F.3d 826, 829 (8th Cir.1994).
In 1996, Congress restricted the scope of a Federal Court’s review of Habeas Petitions where, as here, the underlying claims were adjudicated in State Court. See, Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996)(“AEDPA”); see also, Lockyer v. Andrade, 538 U.S. 63, 70, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (“AED-PA circumscribes a federal habeas court’s review of a. state court decision.”). A Federal -Court’s authority to vitiate State Court decisions, by the granting of a Writ of Habeas Corpus, is now limited to the narrow class of claims which have been fully exhausted in the State Courts, and which involve an adjudication that either:
(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.
Title 28 U.S.C. § 2254(d).
The Supreme Court has determined that the “contrary to,” and “unreasonable application” clauses of Section 2254(d)(1), present two (2) separate grounds on which a Federal Court may grant Habeas relief to claims adjudicated in the State Courts. See, Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
The Court has explained, as follows:
Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrive[d] at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decide[d] a ease differently .than [the Supreme Court] has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifie[d] the correct governing legal principle from [the Supreme Court’s] decisions but unreasonably applie[d] that principle to the facts of the prisoner’s case.
The Court further explained that a consideration of a State Court’s decision, under the “unreasonable application” clause, requires a Federal Court to “ask whether the state court’s application of clearly established federal law was objectively unreasonable.” Id. at 409, 120 S.Ct. 1495; see also, Underdahl v. Carlson, 462 F.3d 796, 798 (8th Cir.2006); Davis v. Norris, 423 F.3d 868, 874-75 (8th Cir.2005); LaFrank v. Rowley, 340 F.3d 685, 689 (8th Cir.2003), cert. denied, 541 U.S. 950, 124 S.Ct. 1689,158 L.Ed.2d 381 (2004).
Under this heightened standard of review, a Federal Court “may not issue the writ simply because that court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly,” but “[r]ather, that application must also be unreasonable.” Id. at 411, 120 S.Ct. 1495; see also, Davis v. Norris, supra at 875; Siers v. Weber, 259 F.3d 969, 972-73 (8th Cir.2001)(examining the impact of Williams on Habeas proceedings), cert. denied, 534 U.S. 1138, 122 S.Ct. 1087, 151 L.Ed.2d 986 (2002); Newman v. Hopkins, 247 F.3d 848, 850-51 (8th Cir.2001), cert. denied, 536 U.S. 915, 122 S.Ct. 2381, 153 L.Ed.2d 199 (2002); Copeland v. Washington, 232 F.3d 969, 973 (8th Cir. 2000), cert. denied, 532 U.S. 1024, 121 S.Ct. 1968, 149 L.Ed.2d 761 (2001).
As a consequence, Williams affirmed the distinction, which had previously been drawn by several Circuit Courts, that the “contrary to” clause was to be used in cases addressing pure questions of law and mixed questions of law and fact, whereas the “unreasonable application” clause addressed factual determinations. See, e.g., Evans v. Rogerson, 223 F.3d 869, 872 (8th Cir.2000)(the “in custody” determination for Miranda purposes is a question of law subject to the first prong of Section 2254(d), when the relevant facts are undisputed). Therefore, when a petitioner argues that the State Court improperly applied clearly established Supreme Court law to a particular set of facts, the Federal Courts may not grant a Writ absent a finding that such an application was unreasonable. “ ‘[Objectively unreasonable’ does not mean ‘clear error,’ because ‘[tjhese two standards * * * are not the same,’ ” and “[t]he gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness.” LaFrank v. Rowley, supra at 689, quoting Lockyer v. Andrade, supra at 75, 123 S.Ct. 1166.
Additionally, Section 2254(e)(1) retains a presumption of correctness for all purely factual determinations rendered by a State Tribunal, which can, as a result, only be rebutted by the production of clear and convincing evidence to the contrary. See, Guinn v. Kemna, 489 F.3d 351, 359 (8th Cir.2007); Lupien v. Clarke, supra at 618; Green v. Norris, 394 F.3d 1027, 1029 (8th Cir.2005). Despite this presumption, Section 2254(d)(2) authorizes the issuance of a Writ if the State Court Judgment “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.” Kinder v. Bowersox, 272 F.3d 532, 538 (8th Cir.2001); McDonald v. Bowersox, 101 F.3d 588, 592 (8th Cir.l996)(“[W]e presume state court findings of fact to be correct in habeas proceedings unless the petitioner establishes, the respondent admits, or the record shows otherwise.”), cert. denied, 521 U.S. 1127, 117 S.Ct. 2527, 138 L.Ed.2d 1027 (1997). Thus, “[f]actual findings by the state court ‘shall be presumed to be correct,’ a presumption that will be rebutted only ‘by clear and convincing evidence.’ ” Kinder v. Bowersox, supra at 538, citing Title 28 U.S.C. § 2254(e)(l).
'S. Legal Analysis. As noted, Hamilton seeks Habeas relief on five (5) separate grounds, and the Respondent opposes his Petition on both substantive and procedural grounds. Procedurally, the Respondent asserts that Hamilton has defaulted some of his claims, because he did not raise them in his direct appeal, and we turn to consider that argument first.
1. Exhaustion and Procedural Default
a. Standard of Review. It is well-established that a Federal Court will not entertain a Petition for a Writ of Habeas Corpus, on behalf of a State prisoner, unless the prisoner has first exhausted all available State Court remedies. See, Title 28 U.S.C. § 225i(b); O’Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); see also, Armstrong v. State of Iowa, 418 F.3d 924, 925-26 (8th Cir.2005), cert. denied, 546 U.S. 1179, 126 S.Ct. 1351, 164 L.Ed.2d 63 (2006)(“Federal habeas relief is available to a petitioner after he ‘has exhausted the remedies available in the courts of the State.’ ”), quoting Title 28 U.S.C. § 225m(1)(A).
The exhaustion of State remedies requirement is based upon principles of comity and federalism, as its purpose is to ensure that State Courts are given the first opportunity to correct alleged Federal constitutional errors that are raised by State prisoners. See, O’Sullivan v. Boerckel, supra at 844, 119 S.Ct. 1728; Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995); Rose v. Lundy, supra at 518-19, 102 S.Ct. 1198; Curtiss v. Mount Pleasant Correctional Facility, 838 F.3d 851, 855 (8th Cir.2003), cert. denied, 540 U.S. 1060, 124 S.Ct. 837, 157 L.Ed.2d 717 (2003)(“The exhaustion requirement serves AEDPA’s goal of promoting ‘comity, finality, and federalism,’ by giving state courts ‘the first opportunity to review [the] claim,’ and to ‘correct’ any ‘constitutional violation in the first instance.’ ”), quoting Carey v. Saffold, 536 U.S. 214, 220, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002).
In order to exhaust his State Court remedies, a prisoner must fairly present his constitutional claims to the highest available State Court before seeking relief in Federal Court. See, O’Sullivan v. Boerckel, supra at 845, 119 S.Ct. 1728; Duncan v. Henry, supra at 365-66, 115 S.Ct. 887; see also, Dixon v. Dormire, 263 F.3d 774, 777 (8th Cir.2001); McCall v. Benson, 114 F.3d 754, 757 (8th
Cir.1997)(“[B]efore we may reach the merits of a habeas petition, we must first determine whether the petitioner has fairly presented his federal constitutional claims to the state court.”). The exhaustion of State remedies requires more than the fact that the Federal Habeas applicant has been through the State Courts. See, Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). When a State has a two-tiered appellate review system, as does the State of Minnesota, a prisoner must exhaust both appellate levels before presenting his claims in Federal Court. See, O’Sullivan v. Boerckel, supra at 845, 119 S.Ct. 1728. This is true even when a State does not afford a “right” to review by its highest Court, but only offers an opportunity to present claims for discretionary review. Id.
To serve the purposes of the Rule, the State Courts must have the first opportunity to' hear the claim, which is sought to be vindicated in a Federal Habeas proceeding. See, Picard v. Connor, supra at 275-76, 92 S.Ct. 509. The State Court has an opportunity to hear a claim, when the claim has been fairly presented, by reference to a specific Federal constitutional right, a Federal case, or a State case, which raises a pertinent Federal constitutional issue. See, Cox v. Burger, 398 F.3d 1025, 1031 (8th Cir.2005), cert. denied, 546 U.S. 844, 126 S.Ct. 93, 163 L.Ed.2d 109 (2005), quoting Barrett v. Acevedo, 169 F.3d 1155,1161-62 (8th Cir. 1999), cert. denied, 528 U.S. 846, 120 S.Ct. 120, 145 L.Ed.2d 102 (1999); Abdullah v. Groose, 75 F.3d 408, 411 (8th Cir.1996), cert. denied, 517 U.S. 1215, 116 S.Ct. 1838, 134 L.Ed.2d 941 (1996). Claims are exhausted only when the same factual underpinnings, and legal theories, were first properly raised in the State Courts. Id. “Presenting a claim that is merely similar to the federal habeas claim is not sufficient to satisfy the fairly presented requirement.” Id.; see also,' Abdullah v. Groose, supra at 412, citing Duncan v. Henry, supra at 366,115 S.Ct. 887.
Under Minnesota law, “[o]nce a defendant has had a direct appeal, ‘all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for post-conviction relief.’ ” Zenanko v. State, 587 N.W.2d 642, 644-45 (Minn.1998), quoting State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737, 741 (1976). If the petitioner has failed to exhaust his State Court remedies, and if the Court to which he should have presented his claim would now find it procedurally barred, the claim is proeedurally defaulted. See, Sloan v. Delo, 54 F.3d 1371, 1381 (8th Cir.1995), cert. denied, 516 U.S. 1056, 116 S.Ct. 728, 133 L.Ed.2d 679 (1996), citing Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). In addition, if a petitioner has attempted to raise a claim in State Court, but the State Court determines that the petitioner has defaulted the claim under a State procedural rule, Federal Courts will not, as a general proposition, consider the claim on Habeas review. See, Coleman v. Thompson, supra at 750, 111 S.Ct. 2546; Sloan v. Delo, supra at 1378.
Accordingly, “[a] default under a state procedural rule bars consideration of a federal claim presented to the state courts if the last state court to review the claim specifically rested its decision on an adequate and independent state ground * * Sloan v. Delo, supra at 1378, citing Harris v. Reed, 489 U.S. 255, 260-63, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). A claim that is procedurally defaulted under State law, however, is barred from Federal review only if the State procedural rule is firmly established, and regularly followed. See, Oxford v. Delo, 59 F.3d 741, 744 (8th Cir.1995), cert. denied, 517 U.S. 1124, 116 S.Ct. 1361, 134 L.Ed.2d 528 (1996), citing Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991); see also, Harris v. Reed, supra at 262, 109 S.Ct. 1038 (“[A]n adequate and independent finding of procedural default [as a matter of State law] will bar federal habeas review of the federal claim.”). Although the State Court procedural bar is “nearly absolute,” a petitioner can avoid the bar if he “demonstrate^] cause for the default and actual prejudice as a result of the alleged violation of federal law,” or shows his actual innocence. Reagan v. Norris, 279 F.3d 651, 656 (8th Cir.2002), quoting Coleman v. Thompson, supra at 750, 111 S.Ct. 2546.
Furthermore, a Habeas Petitioner must exhaust his State Court remedies with respect to all of the claims that he wishes to raise in a Federal Habeas Petition. A “mixed petition” — i.e., one that includes both exhausted and unexhausted claims — will be dismissed for non-exhaustion, or stayed, under certain circumstances, to allow the exhaustion of State remedies. See, Rose v. Lundy, supra at 510, 522, 102 S.Ct. 1198; see also, Akins v. Kenney, 410 F.3d 451, 456 (8th Cir. 2005)(“In order to determine whether a stay pending exhaustion would be appropriate in this case, [petitioner] must be given' an opportunity to demonstrate good cause for his failure to exhaust his claims first in state court, to show that his unexhausted claims are not ‘plainly meritless,’ and to demonstrate that he has not engaged in abusive litigation tactics or intentional delay.”), citing Rhines v. Weber, 544 U.S. 269, 277, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005).
However, our Court of Appeals has also concluded that, “if no state court remedy is available for the unexhausted claims — that is, if resort to the state courts would be futile — then the exhaustion requirement in § 2254(b) is satisfied, but the failure to exhaust ‘provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim, unless the petitioner can demonstrate cause and prejudice for the default’ (or actual innocence, which is not at issue in this case).” Armstrong v. State of Iowa, supra at 926, quoting Gray v. Netherland, 518 U.S. 152, 162, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996). If a petitioner cannot provide cause and prejudice for his default, in the absence of a claim of actual innocence, then a Federal District Court can “properly dismiss[] [the petitioner’s] federal claims with prejudice.” Id., supra at 927 [emphasis in original].
b. Legal Analysis. In his direct appeal, Hamilton raised numerous grounds for relief, but he did not assert that the prosecutor improperly spoke about race during her closing arguments. However, in his Petition for Post-Conviction relief to the Hennepin County District Court, Hamilton alleged that “improper racial comments were made to the jury[.]” See, Petition, supra at ¶ 11(a)(3). According to Hamilton, the Hennepin County District Court denied his Petition for PosWConviction Relief. Id. at ¶ 11(a)(5). With respect to Hamilton’s claims, that the prosecutor improperly struck a black juror from the Jury pool, and that he received ineffective assistance because his counsel failed to call a medical expert, Hamilton failed to raise those claims in either his direct appeal, or his Petition for Post-Conviction relief. See, Petition, supra at ¶ 11(a)(3), p. 10; Petitioner’s Response, at 4-5.
As a result, those specific claims are now procedurally barred because he failed to bring them before the Minnesota Court of Appeals. See, Minnesota Statutes Section 590.01, Subdivision 3 (“The court may summarily deny a second or successive petition for similar relief on behalf of the same petitioner and may summarily deny a petition when the issues raised in it have previously been decided by the Court of Appeals or the Supreme Court in the same case.”); Arredondo v. State, 754 N.W.2d 566, 570-71 n. 2 (Minn.2008)(finding that failure to raise an inconsistent Verdict on direct appeal barred consideration in a post-conviction proceeding), citing State v. Knaffla, supra at 741; Gustafson v. State, 754 N.W.2d 343, 348 (Minn.2008)(“When a ‘direct appeal has once been taken, all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.’ ”), quoting State v. Knaffla, supra at 741.
Since those claims are procedurally barred under Minnesota law, Hamilton has no remedy for his unexhausted claims. As a result, any resort to the State Courts would be futile, and therefore, Hamilton has fulfilled the exhaustion requirement of Section 2254(b). See, Armstrong v. Iowa, supra at 926; Ramos v. Fabian, 2003 WL 22999545 at *2 (D.Minn., December 18, 2003)(“While a federal court typically will not hear unexhausted claims, a petitioner can satisfy the exhaustion requirement if his claims are procedurally barred under state law, because the exhaustion requirement refers only to state remedies still available when the federal petition is filed.”), citing Gray v. Netherland, 518 U.S. 152, 161-62, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996)(finding that the exhaustion requirement applies only to remedies that are still available at the time of the Petition, and that exhaustion is met if the claims are barred by a State procedural rule); Garza v. Fabian, 2007 WL 2571990 at *6 (D.Minn., August 31, 2007)(“In effect, ‘if a petitioner’s unexhausted claims are procedurally barred under state law, the exhaustion requirement is satisfied because this requirement * * * refers only to remedies still available at the time of the federal petition.’ ”), quoting Copeland v. Minnesota, 2004 WL 1701034 at *2 (D.Minn., July 29, 2004), quoting, in turn, Gray v. Netherland, supra at 161-62, 116 S.Ct. 2074.
Although Hamilton has exhausted his State Court remedies, that same procedural bar “provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim, unless the petitioner can demonstrate cause and prejudice for the default,” or a fundamental miscarriage of justice. Wemark v. Iowa, 322 F.3d 1018, 1022 (8th Cir.2003), citing Gray v. Netherland, supra at 162, 116 S.Ct. 2074 [citations omitted]; see also, Armstrong v. State of Iowa, supra at 926; Moore-El v. Luebbers, 446 F.3d 890, 896 (8th Cir.2006)(“Where a petitioner fails to follow applicable state procedural rules, any claims not properly raised before the state court are procedurally defaulted,” but a defaulted claim will be considered if “the petitioner can establish either cause for the default and actual prejudice, or that the default will result in a fundamental miscarriage of justiee.”)[eitations omitted], cert. denied, 549 U.S. 1059, 127 S.Ct. 673, 166 L.Ed.2d 525 (2006).
In order to satisfy the “cause” requirement, Hamilton must demonstrate that some external impediment prevented him from presenting his claim in a timely and procedurally proper manner. See, Bell v. Attorney General of State of Iowa, 474 F.3d 558, 561 (8th Cir.2007)(“A cause is sufficient to excuse procedural default when it is external to the petitioner, and not attributable to the petitioner.”), cert. denied, — U.S.-, 128 S.Ct. 261, 169 L.Ed.2d 191 (2007), citing Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)(“[C]ause under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to him * * * [f]or example, ‘a showing that the factual or legal basis for a claim was not reasonably available * * * or that some interference by officials made compliance impracticable[.]’ ”)[emphasis in original], quoting, in turn, Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).
Here, Hamilton has failed to present any evidence to demonstrate that an external impediment prevented him from presenting his claims to the Minnesota Court of Appeals. As a result, we conclude that Hamilton has not satisfied the “cause” prong of the “cause and prejudice” standard so as to excuse his procedural default.
However, Hamilton asserts that he was the actual victim of the crime rather than the assailant. See, Petition, supra at ¶¶ 9(d), 11(3), p. 11. Construing his Petition liberally, we understand Hamilton to argue that we should excuse his procedural default based upon the fundamental miscarriage of justice exception. The “fundamental miscarriage of justice” exception is available only upon a “showing, based on new evidence, that ‘a constitutional violation has probably resulted in the conviction of one who is actually innocent.’ ” Brownlow v. Groose, 66 F.3d 997, 999 (8th Cir.l995)[emphasis added], cert. denied, 516 U.S. 1161, 116 S.Ct. 1049, 134 L.Ed.2d 194 (1996), quoting Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); see also, Weeks v. Bowersox, 119 F.3d 1342, 1350 (8th Cir. 1997)(“To fit within the fundamental miscarriage of justice exception, a petitioner must make a showing of actual innocence.”), cert. denied, 522 U.S. 1093, 118 S.Ct. 887, 139 L.Ed.2d 874 (1998), citing Schlup v. Delo, supra at 321,115 S.Ct. 851.
Our Court of Appeals has explained that “[t]he actual innocence exception is concerned with claims of actual, not legal innocence,” and “it is evidence of factual innocence coupled with a constitutional violation which triggers the actual innocence exception.” Pitts v. Norris, 85 F.3d 348, 350 (8th Cir.1996), cert. denied, 519 U.S. 972, 117 S.Ct. 403, 136 L.Ed.2d 317 (1996), citing Anderson v. United States, 25 F.3d 704, 707 (8th Cir.1994). “Examples of evidence which may establish factual innocence include credible declarations of guilt by another, trustworthy eyewitness accounts, and exculpatory scientific evidence.” Id. at 350-51, citing Schlup v. Delo, supra at 324, 115 S.Ct. 851 and Sawyer v. Whitley, 505 U.S. 333, 340, 112 S.Ct. 2514,120 L.Ed.2d 269 (1992).
“An actual innocence claim is ‘not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.’ ” Wadlington v. United States, 428 F.3d 779, 783 (8th Cir.2005), cert. denied, 549 U.S. 1077, 127 S.Ct. 723, 166 L.Ed.2d 561 (2006), quoting Schlup v. Delo, supra at 315, 115 S.Ct. 851; Flanders v. Graves, 299 F.3d 974, 977 (8th Cir.2002)(“[T]he concept of actual innocence is used as a ‘gateway,’ that is, actual innocence, if it can be shown, opens the gate to consideration of constitutional claims on their merits, claims that would otherwise be procedurally barred.”), cert. denied, 537 U.S. 1236, 123 S.Ct. 1361, 155 L.Ed.2d 203 (2003); Cornell v. Nix, 119 F.3d 1329, 1334 (8th Cir.l997)(noting that the actual innocence exception “is not a substantive claim in itself, but is a ‘gateway’ through which a petitioner must pass to obtain review of defaulted substantive claims.”).
To establish a claim of actual innocence, a petitioner must meet a two (2) part test. “First, the petitioner’s allegations of constitutional error must be supported with new reliable evidence that was not presented at trial.” Weeks v. Bowersox, supra at 1351, quoting Bowman v. Gammon, 85 F.3d 1339, 1346 (8th Cir. 1996), cert. denied, 520 U.S. 1128, 117 S.Ct. 1273, 137 L.Ed.2d 350 (1997). “‘[E]vidence is new only if it was not available at trial and could not have been discovered earlier through the exercise of due diligence.’ ” Johnson v. Norris, 170 F.3d 816, 818 (8th Cir.1999), quoting Amrine v. Bowersox, 128 F.3d 1222, 1230 (8th Cir.1997), cert. denied, 523 U.S. 1123, 118 S.Ct. 1807, 140 L.Ed.2d 946 (1998). “Second, the petitioner must establish that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Id. As our Court of Appeals has noted “[f]ew petitions are ‘within the narrow class of cases * * * implicating a fundamental miscarriage of justice.’ ” Id., quoting Schlup v. Delo, supra at 314-15, 115 S.Ct. 851, quoting, in turn, McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).
Here, Hamilton has not offered any new, reliable evidence to support his claim of actual innocence. Rather, in support of his claim, Hamilton has offered diagrams, medical terminology, and his discharge instructions, which were issued following his release from the hospital after his arrest. However, because all of that evidence was readily available, or discoverable, at the time of Hamilton’s Trial, we find that he has not disclosed any new evidence which would affirmatively prove that he was, in fact, the victim of the crime. See, Morris v. Dormire, 217 F.3d 556, 559 (8th Cir. 2000) (finding that “the evidence was not new since it was available at trial or could ‘have been discovered earlier through the exercise of due diligence.’ ”), quoting Johnson v. Norris, supra at 818; Wren v. Fabian, 2008 WL 4933950 at *3 n. 3 (D.Minn., November 14, 2008); Johnson v. United States Parole Comm’n, 2008 WL 227656 at *2 n. 3 (D.Minn., January 28, 2008). Accordingly, Hamilton has failed at the first step, and we need not consider his claim further. See, Amrine v. Bowersox, 238 F.3d 1023, 1029 (8th Cir.2001)(concluding that the petitioner’s failure to produce new reliable evidence precluded him from utilizing the actual innocence gateway), cert. denied sub. nom., Amrine v. Luebbers, 534 U.S. 963, 122 S.Ct. 372, 151 L.Ed.2d 283 (2001); Weeks v. Bowersox, supra at 1352 (“Because Weeks has not presented new reliable evidence that he is actually innocent, he can not pass through the actual innocence gateway.”); Thibodeau v. Carlson, 2007 WL 4372960 at *5 (D.Minn., December 6, 2007) (finding that, since the “Petitioner has not offered new evidence of actual innocence, his procedural default is not excusable.”); see also, United States v. Siepker, 2008 WL 5273088 at *8 (N.D.Iowa, December 18, 2008)(“The lack of any new evidence alone is enough to deny Siepker’s claim when characterized as an actual innocence claim.”), citing House v. Bell, 547 U.S. 518, 537-38, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006). Accordingly, since Hamilton has failed to establish his actual innocence, those specific claims have been procedurally defaulted, and we recommend that those claims be dismissed with prejudice.
2. The Prosecutor’s Restricted Law License.
a. Facial Due Process. In his Petition, Hamilton alleges that his constitutional rights were violated because the prosecutor, Gemma Graham (“Graham”), prosecuted him without the proper CLE credits. See, Petition, supra at ¶ 12(c). We disagree.
At the time of Hamilton’s Trial, Graham’s law license was on restricted status, because she failed to submit Affidavits, as required by Rules 5.5, and 8.4(d), Minnesota Rules of Professional Conduct, so as to confirm her compliance with the applicable CLE requirements. See, In re Disciplinary Action Against Graham, 744 N.W.2d 19, 19 (Minn.2008). Although our Court of Appeals has not addressed that issue, we rely on the analysis of other Courts in analogous circumstances.
In People v. Carter, 77 N.Y.2d 95, 99, 564 N.Y.S.2d 992, 566 N.E.2d 119 (N.Y. 1990), the defendants requested that their convictions be declared invalid, because the prosecutor was not licensed. The defendants argued that the appearance of a nonlawyer, before the Grand Jury, made such proceedings defective, and accordingly, the Indictments against them should have been dismissed. Id. at 100, 103, 564 N.Y.S.2d 992, 566 N.E.2d 119. The Court rejected the defendants’ argument, noting that the prosecutor’s unlicensed status did not “undermine the underlying prosecutorial jurisdiction possessed by the Special Narcotics Prosecutor or affect his permission to be present before the Grand Jury as an Assistant District Attorney!)]” Id. at 105, 564 N.Y.S.2d 992, 566 N.E.2d 119. [citations omitted].
The Court also rejected the defendants’ argument, that their Due Process rights were violated, because they were prosecuted by someone other than a licensed attorney. Id. at 106-07, 564 N.Y.S.2d 992, 566 N.E.2d 119. The Court noted that the question was not whether the defendants should have been prosecuted by a licensed attorney, but instead, was “whether the fact of defendants’ prosecution by a non-lawyer, standing alone, has deprived them of protections guaranteed by the Federal and State Constitutions.” Id. at 106, 564 N.Y.S.2d 992, 566 N.E.2d 119. The Court noted that the defendants had offered no support for their constitutional right to be prosecuted by a licensed attorney, and concluded that, “in the absence of prejudice, the fact that [the prosecutor] .was not a lawyer did not result in a deprivation of defendants’ constitutional due process rights.” Id. at 107, 564 N.Y.S.2d 992, 566 N.E.2d 119.
Similarly, in Munoz v. Keane, 777 F.Supp. 282, 283-84 (S.D.N.Y.1991), aff'd sub. nom., Linares v. Senkowski, 964 F.2d 1295 (2nd Cir.1992), cert. denied, 506 U.S. 986, 113 S.Ct. 494, 121 L.Ed.2d 432 (1992), the petitioners challenged their convictions, on Fourteenth Amendment Due Process grounds, because the prosecutor was not a licensed attorney. Specifically, the petitioners argued that their Trial was not a fair legal proceeding because the prosecutor’s actions were “ ‘tainted by his unlawful conduct.’ ” Id. at 285. [citation omitted]. The Court noted that the petitioners had “formulated a new constitutional right — the right to be prosecuted by a licensed attorney.” Id. In rejecting the petitioners’ claim, the Court explained that the prosecution, by an unlicensed attorney, did not violate the petitioners’ Due Process rights because, “[w]hile it ■ is obviously preferable that a prosecutor be licensed to practice law in the jurisdiction in which he or she practices, the fact that a prosecutor is not admitted does not necessarily undermine the fairness of the trial process.” Id.
The Court recognized that the Court of Appeals for the Second Circuit had held that a criminal defendant must be represented by licensed counsel. Id. However, it noted that, “[w]hile a prosecutor is obligated to seek justice, not only a conviction, a criminal defendant does not rely on a prosecutor to protest his rights” and, “[a]s a result, the fact that a prosecutor may be unlicensed to practice law has far fewer repercussions for the defendant than if his own counsel is not admitted.” Id. at 286. The Court rejected the petitioners’ argument, that a per se Due Process violation occurred when a prosecutor was unlicensed because, “[wjhere, as here, defense counsel and an impartial trial judge are capable of monitoring the prosecutor’s conduct in order to ensure that no constitutional violations occur, it would be inappropriate to conclude that a due process violation automatically results from the prosecutor’s unlicensed status.” Id.
The Court was also concerned about the practical implications of the petitioners’ claim, and noted that “the practical implications of accepting petitioners’ due process claim * * * [would mean that] every defendant convicted by [the prosecutor] during his fourteen year tenure as a prosecutor would be entitled to a new trial.” Id. The Court concluded that the petitioners had not demonstrated a sufficient basis for invalidating such a large number of cases, nor did they propose a means for limiting their proffered constitutional rule, and accordingly, the Court declined to adopt the petitioners’ per se rule. Id.
Lastly, the Court recognized that, even if the petitioners had a constitutional right to be prosecuted by a licensed attorney, the petitioners’ convictions would only be reversed “if petitioners c[ould] demonstrate that [the prosecutor’s] conduct prejudiced them in some way.” Id. The Court ruled that the petitioners had not demonstrated that the prosecutor’s unlicensed status impacted upon the prosecution of their case. Id. at 286-87. Accordingly, the Court held that, “[i]n the absence of any evidence that [the prosecutor] failed to meet his constitutional obligations to petitioners, the requested relief must be denied.” Id. at 287.
Several Minnesota Courts have addressed analogous circumstances concerning the unlicensed practice of law. In State v. Abbott, 356 N.W.2d 677, 679 (Minn.1984), the defendant contended that he was denied Due Process “because the attorney who prosecuted him was not properly appointed an assistant county attorney.” The Court rejected the defendant’s claim, noting “that even if the prosecutor’s appointment was technically defective, the defect did not prejudice defendant or deprive him of a fair trial.” Id. [citation omitted]. Subsequently, in State v. Smith, 476 N.W.2d 511, 512-13 (Minn.1991), the defendant contended that his Sixth Amendment right to counsel had been violated because his counsel had been suspended from the practice of law during his Trial. The Court first observed that, when “counsel has never been a lawyer, never been admitted to the bar, persuasive authority holds that this creates a per se Sixth Amendment violation.” Id. at 513. However, the Court noted that the question before it was whether “the per se rule should be extended to situations where counsel has been admitted to the bar but, at the time of the court proceedings, has lost licensure because of suspension or disbarment.” Id.
In Smith, the Court rejected a per se rule, because “the reasons for loss of licensure can be so varied in kind and degree that imposition of a per se rule is inappropriate.” Id. Lastly, the Court recognized the need to balance “the integrity of the criminal justice system,” against the “reluctance to set aside a criminal conviction where guilt has been fairly established by the evidence in proceedings conducted with reasonable competence by counsel.” Id. at 514. Given those considerations, the Court concluded that the circumstances required a more flexible rule, and rejected the defendant’s request for a per se Sixth Amendment violation. Id.
More recently, the Minnesota Court of Appeals addressed the effect of Graham’s restricted license. In State v. Ali, 752 N.W.2d 98, 106 (Minn.App.2008), rev. granted (Minn., September 23, 2008), the Court rejected the defendant’s argument that he was entitled to a new Trial because of Graham’s restricted law license. Relying on State v. Abbott, supra, the Court first concluded that the defendant “must show prejudice resulting from the fact that he was prosecuted by an attorney whose license to practice law was on restricted status,” if he is to be entitled to a new Trial. Id. at 108. The Court concluded that the defendant had failed to show such prejudice. Id. at 109.
Further, the Court concluded that the defendant was not entitled to a new Trial because Graham was not an “imposter,” who had never been a lawyer. Id. at 108, citing State v. Smith, supra at 513. The Court explained that, even though Graham’s license was restricted, she had been admitted to practice law in the State of Minnesota. Id. The Court rejected the defendant’s argument that Graham’s restricted license created a per se rule, which required the vacation of his conviction, and the grant of a new Trial. Id. at 108-09. The Court noted that “the integrity of the criminal justice system and a reluctance to set aside a criminal conviction when guilt was fairly established,” required a flexible approach, which “the application of a per se rule cannot afford.” Id., citing State v. Smith, supra at 514.
Lastly, the Court observed that “the practical effect of a per se rule” could not be ignored. Id. at 109, citing Munoz v. Keane, supra at 286. The Court explained:
If we were to apply the standard that [the defendant] urges, every defendant who was prosecuted by Graham during the more than 20 years that her license was on restricted status would be entitled to a reversal of his conviction, regardless of whether the integrity of any defendant’s trial was in any way impaired.
Therefore, since the defendant had failed to show prejudice, owing to Graham’s restricted license, the Court concluded that he was not entitled to a new Trial. Id.', see also, State v. Ramirez, 2008 WL 4470542 at *2 (Minn.App., October 7, 2008)(finding that the defendant was not entitled to a new Trial because he did not contend that he was prejudiced by Graham’s conduct during his Trial), rev. granted in part, and denied in part (Minn. December 23, 2008).
Here, we agree with the Court, in Munoz v. Keane, supra, that Hamilton does not have a constitutional right to be prosecuted by a licensed attorney. Hamilton has not offered any legal support for such a constitutional right, ■ nor has our independent research disclosed any. In addition, even if Hamilton had a constitutional right to be-prosecuted by an licensed attorney, we conclude that any alleged error was harmless, because Hamilton has not demonstrated any prejudice that arose from Graham’s conduct. See, Munoz v. Keane, supra at 286-87; State v. Ali, supra at 108-09.
“ ‘An error is harmless if it does not affect substantial rights of the defendant, and did not influence or had only a slight influence on the verdict.’ ” United, States v. Street, 548 F.3d 618, 629 (8th Cir.2008), quoting United States v. Hogan, 539 F.3d 916, 922 (8th Cir.2008), quoting, in turn, United States v. Martinez, 462 F.3d 903, 910 (8th Cir.2006)[citation omitted], cert. denied, 549 U.S. 1272, 127 S.Ct. 1502, 167 L.Ed.2d 241 (2007). Constitutional errors are divided into Trial errors, and structural errors. See, Arizona v. Fulminante, 499 U.S. 279, 306-310, 111 SiCt. 1246, 113 L.Ed.2d 302 (1991). Trial errors are “errors occurring during the course of the trial [which] may be assessed quantitatively along with the other evidence presented at trial,” and “[i]t is possible, therefore, to determine if trial errors were harmless beyond a reasonable doubt.” Lufkins v. Leapley, 965 F.2d 1477, 1480 (8th Cir.1992), citing Arizona v. Fulminante, supra at 307-08, 111 S.Ct. 1246. “On the other hand, structural defects, such as the total deprivation of right to counsel, can never be subject to harmless error analysis because they call into question the legitimacy of the entire proceeding.” Id., citing Arizona v. Fulminante, supra at 309-10, 111 S.Ct. 1246.
Here, the “right” to be prosecuted by a licensed attorney does not qualify as structural defect. See, Munoz v. Keane, supra at 286 (“[T]he ‘right’ asserted here — to be prosecuted by an attorney licensed to practice law — does not qualify as ‘structural defect * * * in the trial mechanism.’ ”). Accordingly, we find no facial denial of Due Process, but we proceed to determine whether any of the Trial errors, which are alleged in the Petition, prejudiced Hamilton. See, Petition, supra at ¶ 12(A)-(B).
b. Alleged Trial Errors.
1) Gmham’s Closing Argument. Hamilton first argues that Graham committed prosecutorial misconduct by speaking about race during her closing argument. See, Petition, supra at ¶ 12(A). Generally, if a timely objection to an error is made, Rule 52(a), Federal Rules of Criminal Procedure, applies and the error is analyzed under the harmless beyond a reasonable doubt standard. See, United States v. Triplett, 195 F.3d 990, 996 (8th Cir.1999), cert. denied, 529 U.S. 1094, 120 S.Ct. 1735, 146 L.Ed.2d 654 (2000), citing Chapman v. California, 386 U.S. 18, 22-24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); see also, United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The burden then rests with the State to prove that the error was harmless beyond a reasonable doubt. See, United States v. Triplett, supra at 996.
However, at Trial, Hamilton. did not object to Grahanfs closing argument, and accordingly, Graham’s closing argument is reviewed for plain error. See, Rule 52(b), Federal Rules of Criminal Procedure; United States v. Two Elk, 536 F.3d 890, 900 (8th Cir.2008), citing United States v. Sharpfish, 408 F.3d 507, 511 (8th Cir.2005). “Under plain error review, this court will reverse only if there is 1) error 2) that is plain and 3) affects the defendant’s substantial rights” and, “[i]n addition, the error must seriously affect ‘the fairness, integrity or public reputation of judicial proceedings.’” United States v. Robinson, 439 F.3d 777, 780 (8th Cir.2006), quoting United States v. Olano, supra at 732,113 S.Ct. 1770.
The word “error” is to be read as error — that is, a “[deviation from a legal rule is ‘error’ unless the rule has been waived.” United States v. Olano, supra at 732-33, 113 S.Ct. 1770. “Plain” is defined as “clear or obvious.” Id. at 734, 113 S.Ct. 1770. “For an error to have been plain, it must have been “clear” or “obvious” under current law.” United States v. Lachowski, 405 F.3d 696, 698 (8th Cir.2005), citing United States v. Olano, supra at 734, 113 S.Ct. 1770. ■ In order to “affect substantial rights,” “the error must have been prejudicial: It must have affected the outcome of the district court proceedings.” ■ United States v. Olano, supra at 734, 113 S.Ct. 1770. The defendant bears the burden of proving plain error. See, United States v. Pirani, supra at 550, citing United States v. Olano, supra at 734-35, 113 S.Ct. 1770.
We will reverse a conviction for prosecutorial misconduct only if “(1) the prosecutor’s remarks or conduct were improper, and (2) the remarks or conduct prejudicially affected the defendant’s substantial rights so as to deprive him a fair trial.” United States v. Ziesman, 409 F.3d 941, '953 (8th Cir.2005), cert. denied, 546 U.S. 990, 126 S.Ct. 579, 163 L.Ed.2d 483 (2005), quoting United States v. Beckman, 222 F.3d 512, 526 (8th Cir.2000). “If we reach the second step, we consider ‘(1) the cumulative effect of the misconduct, (2) the strength of the properly admitted evidence of the defendant’s guilt, and (3) any curative actions taken by the trial court.’ ” United States v. Londondio, 420 F.3d 777, 787 (8th Cir.2005), quoting United States v. Ziesman, supra at 953, quoting, in turn, United States v. Beckman, supra at 526.
As a result, a Habeas petitioner “bears the heavy burden of showing that the alleged improprieties were so egregious that they fatally infected the proceedings and rendered his entire trial fundamentally unfair.” Mack v. Caspari, 92 F.3d 637, 643 (8th Cir.1996), cert. denied, 520 U.S. 1109, 117 S.Ct. 1117, 137 L.Ed.2d 317 (1997), citing Jones v. Jones, 938 F.2d 838, 844-45 (8th Cir.1991); see also, Moore v. Wyrick, 760 F.2d 884, 886 (8th Cir.1985); Roberts v. Bowersox, 137 F.3d 1062, 1066 (8th Cir.l998)(prosecutorial misconduct does not merit Habeas Corpus relief unless the prosecutor committed an error that effectively eliminated the defendant’s Due Process right to a fair Trial), cert. denied, 525 U.S. 1073, 119 S.Ct. 808, 142