Ballard v. McNeil (785 F. Supp. 2d 1299, 2011)

ORDER ADOPTING REPORT AND RECOMMENDATION

STEPHAN P. MICKLE, Chief Judge.

THIS CAUSE comes before the Court for consideration of the Magistrate Judge’s Report and Recommendation (doc. 39). Petitioner has been afforded an opportunity to file objections pursuant to Title 28, United States Code, Section 636(b)(1). Petitioner filed objections (doc. 41). Pursuant to Title 28, United States Code, Section 636(b)(1), I have conducted a de novo review of the sections of the report to which objections have been made. I find that the Report and Recommendation is correct and should be adopted.

Petitioner brought this habeas corpus petition challenging his conviction of one count of aggravated child abuse related to the choking of his daughter. Several of the Petitioner’s asserted grounds for habeas corpus relief were not properly raised before the state courts, and are therefore procedurally defaulted. Moreover, as to those ineffective assistance of counsel claims remaining for consideration, Petitioner has not met the legal standard for constitutional ineffective assistance of counsel claims, as he cannot demonstrate a reasonable probability that but for his counsels’ alleged errors the outcome of his underlying case would have been different. Lastly, Petitioner has not shown that he was denied the right to a fair trial.

Accordingly, it is hereby ORDERED AND ADJUDGED as follows:

1. The Magistrate Judge’s Report and Recommendation (doc. 39) is adopted and incorporated by reference into this order.

2. The Second Amended Petition for Writ of Habeas Corpus (doc. 13) is denied.

3. A certificate of appealability is denied.

REPORT AND RECOMMENDATION

ELIZABETH M. TIMOTHY, United States Magistrate Judge.

This cause is before the court on Petitioner’s second amended petition for writ of habeas corpus filed under 28 U.S.C. § 2254 (Doc. 13). Respondent filed an answer and relevant portions of the state court record (Doc. 28). Petitioner filed a reply (Doc. 31).

The matter is referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loe. R. 72.2(b). After careful consideration of all issues raised by Petitioner, it is the opinion of the undersigned that no evidentiary hearing is required for the disposition of this matter, Rules Governing Section 2254 Cases 8(a). It is further the opinion of the undersigned that the pleadings and attachments before the court show that Petitioner is not entitled to relief.

I. BACKGROUND AND PROCEDURAL HISTORY

The relevant aspects of the procedural background of this case are established by the state court record (see Doc. 28, Exhibits). Petitioner was charged in the Circuit Court for Leon County, Florida, with one count of aggravated child abuse by malicious punishment based upon his choking his eight-year-old daughter (Ex. A at 1). Following a jury trial, Petitioner was convicted as charged (id. at 62). Petitioner was adjudicated guilty and sentenced on November 3, 2003, to twenty (20) years of imprisonment (id. at 69-77). Petitioner, through counsel, appealed the judgment to the Florida First District Court of Appeal (“First DCA”). The First DCA reversed the conviction and sentence and remanded the case for a new trial (Ex. B). Ballard v. State, 899 So.2d 1186 (Fla. 1st DCA 2005).

Petitioner was retried on July 19, 2005, and again convicted as charged (Ex. A at 118, Ex. C). The trial court again imposed a sentence of twenty (20) years of imprisonment (Ex. C at 239, Ex. K at 33-40). Petitioner appealed the judgment to the First DCA. On November 2, 2006, the appellate court affirmed the judgment of conviction per curiam without written opinion, with the mandate issuing December 22, 2006 (Exs. G, J). Ballard v. State, 944 So.2d 349 (Fla. 1st DCA 2006) (Table). Petitioner did not seek further review by the Florida Supreme Court or the United States Supreme Court.

On January 11, 2007, Petitioner filed a motion to correct illegal sentence, pursuant to Rule 3.800(b) of the Florida Rules of Criminal Procedure (Ex. K at 1-7). The trial court denied the motion on March 26, 2007 (id. at 22-23).

On August 2, 2007, Petitioner filed a motion for post-conviction relief, pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure (Ex. K at 53-97). On August 31, 2007, the trial court denied the motion without an evidentiary hearing (id. at 279-86). Petitioner appealed the decision to the First DCA. The appellate court affirmed per curiam without written opinion on March 31, 2008, with the mandate issuing June 3, 2008 (Exs. M, N). Ballard v. State, 982 So.2d 686 (Fla. 1st DCA 2008) (Table).

On May 27, 2008, Petitioner filed a petition for writ of habeas corpus in the First DCA (Ex. O). The First DCA issued an order treating the petition as a petition alleging ineffective assistance of appellate counsel (Ex. P). The court denied the petition on the merits on June 19, 2008 (Ex. Q). Ballard v. State, 991 So.2d 899 (Fla. First DCA 2008).

Petitioner filed the instant habeas action on July 30, 2008 (Doc. 1). Respondent concedes that the petition is timely (Doc. 28 at 4).

II. STANDARD OF REVIEW

Section 2254(a) of Title 28 provides that “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” upon a showing that his custody is in violation of the Constitution or laws of the United States. As the instant petition was filed after April 24, 1996, it is subject to the more deferential standard for habeas review of state court decisions under § 2254 as brought about by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Pub.L. 104-132, § 104, 110 Stat. 1214, 1218-19. In relevant part, section 2254(d) now provides:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a 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.

28 U.S.C.A. § 2254 (2002).

The United States Supreme Court explained the framework for § 2254 review in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The appropriate test was described by Justice O’Connor as follows:

In sum, § 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner’s application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied — the state court adjudication resulted in a decision that (1) “was contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States.” Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this court on a question of law or if the state court decides a case differently than this 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 identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.

Id., 529 U.S. at 412-13, 120 S.Ct. 1495 (O’Connor, J., concurring); Ramdass v. Angelone, 530 U.S. 156, 120 S.Ct. 2113, 2119-20, 147 L.Ed.2d 125 (2000). In employing this test, the Supreme Court has instructed that on any issue raised in a federal habeas petition upon which there has been an adjudication on the merits in a formal State court proceeding, the federal court should first ascertain the “clearly established Federal law,” namely, “the governing legal principle or principles set forth by the Supreme Court at the time the state court rendered] its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). The law is “clearly established” if Supreme Court precedent at the time “would have compelled a particular result in the case.” Neelley v. Nagle, 138 F.3d 917, 923 (11th Cir.1998), overruled on other grounds by Parker v. Head, 244 F.3d 831, 835 (11th Cir.2001).

Next, the court must determine whether the State court adjudication is contrary to the clearly established Supreme Court case law, either because “ ‘the state court applies a rale that contradicts the governing law set forth in [the Supreme Court’s] cases’ or because ‘the state court confronts a set of facts that are materially indistinguishable from a decision of th[e] [Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.’ ” Lockyer, 538 U.S. at 73, 123 S.Ct. 1166 (quoting Williams, 529 U.S. at 405-06, 120 S.Ct. 1495). The Supreme Court has clarified that “[a]voiding these pitfalls does not require citation to our cases — indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 365, 154 L.Ed.2d 263 (2002) (quoting Williams, 529 U.S. at 405-06, 120 S.Ct. 1495). If the State court decision is found in either respect to be contrary, the district court must independently consider the merits of the petitioner’s claim.

If on the other hand, the State court applied the correct Supreme Court precedent and the facts of the Supreme Court cases and the petitioner’s case are not materially indistinguishable, the court must go to the third step and determine whether the State court “unreasonably applied” the governing legal principles set forth in the Supreme Court’s cases. The standard for an unreasonable application inquiry is “whether the state court’s application of clearly established federal law was objectively unreasonable.” Williams, 529 U.S. at 409, 120 S.Ct. 1495. Whether a State court’s decision was an unreasonable application of legal principle must be assessed in light of the record the court had before it. Holland v. Jackson, 542 U.S. 649, 652, 124 S.Ct. 2736, 2737-38, 159 L.Ed.2d 683 (2004) (per curiam); cf. Bell v. Cone, 535 U.S. 685, 697 n. 4, 122 S.Ct. 1843, 1851 n. 4, 152 L.Ed.2d 914 (2002) (declining to consider evidence not presented to state court in determining whether its decision was contrary to federal law). An objectively unreasonable application of federal law occurs when the State court “identifies the correct legal rule from Supreme Court case law but unreasonably applies that rale to the facts of the petitioner’s case” or “unreasonably extends, or unreasonably declines to extend, a legal principle from Supreme Court case law to a new context.” Putman v. Head, 268 F.3d 1223, 1241 (11th Cir.2001). The State court’s incorrect or erroneous application of clearly established law will be held to be reasonable and not warrant a writ so long as the State court adjudication results in a “satisfactory conclusion.” Williams, 529 U.S. at 410-12, 120 S.Ct. 1495.

Section 2254(d) also allows federal habeas relief for a claim adjudicated on the merits in State court where that adjudication “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)(2). The Supreme Court has clarified that: “a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 1041, 154 L.Ed.2d 931 (2003) (dictum).

When performing its review under § 2254(d), the federal court must bear in mind that any “determination of a factual issue made by a State court shall be presumed to be correct,” and the petitioner bears “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see e.g. Miller-El, 537 U.S. at 340, 123 S.Ct. 1029 (explaining that a federal court can disagree with a state court’s factual finding and, when guided by AEDPA, “conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence”); Jones v. Walker, 496 F.3d 1216, 1226-27 (11th Cir.2007) (holding that § 2254(d)(2)’s “unreasonable determination” standard “must be met by clear and convincing evidence,” and concluding that that standard was satisfied where prisoner showed “clearly and convincingly” that the state court’s decision “contained] an ‘unreasonable determination’ of fact.”).

Only if the federal habeas court finds that the petitioner satisfied AEDPA, and § 2254(d), does the court take the final step of conducting an independent review of the merits of the petitioner’s claims. See Panetti v. Quarterman, 551 U.S. 930, 953, 127 S.Ct. 2842, 2858, 168 L.Ed.2d 662 (2007); Jones, 496 F.3d 1216 (same). The writ will not issue unless the petitioner shows that he is in custody “in violation of the Constitution or laws and treaties of the United States.” 28 U.S.C. § 2254(a).

III. EXHAUSTION AND DEFAULT

It is a long-standing prerequisite to the filing of a federal habeas corpus petition that the petitioner have exhausted available state court remedies, 28 U.S.C. § 2254(b)(1), thereby giving the State the “ ‘opportunity to pass upon and correct’ alleged violations of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971) (citation omitted)). To satisfy the exhaustion requirement, the petitioner must “fairly present” his claim in each appropriate state court, alerting that court to the federal nature of the claim. Duncan, 513 U.S. at 365-66, 115 S.Ct. 887; O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Picard, 404 U.S. at 277-78, 92 S.Ct. 509.

The Supreme Court has offered the following guidance for determining whether a habeas petitioner has met the “fair presentation” requirement. In Picard v. Connor, the Court held that, for purposes of exhausting state remedies, a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts which entitle the petitioner to relief. 404 U.S. at 277, 92 S.Ct. 509. In announcing that “the substance of a federal habeas corpus claim must first be presented to the state courts,” id., 404 U.S. at 278, 92 S.Ct. 509, the Court rejected the contention that the petitioner satisfied the exhaustion requirement by presenting the state courts only with the facts necessary to state a claim for relief.

Additionally, the Court has indicated that it is insufficient to make a general appeal to a constitutional guarantee as broad as due process to present the “substance” of such a claim to a state court. In Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982), the habeas petitioner was granted relief on the ground that a jury instruction violated due process because it obviated the requirement that the prosecutor prove all the elements of the crime beyond a reasonable doubt. Id. 459 U.S. at 7, 103 S.Ct. 276 (citing Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979)). The only manner in which the habeas petitioner cited federal authority was by referring to a state court decision in which “the defendant ... asserted a broad federal due process right to jury instructions that properly explain state law.” Anderson, 459 U.S. at 7, 103 S.Ct. 276 (internal quotation marks omitted). The Court expressed doubt that a defendant’s citation to a state-court decision predicated solely on state law was sufficient to fairly apprise a reviewing court of a potential federal claim merely because the defendant in the cited case advanced a federal claim. Id., 459 U.S. at 7 and n. 3, 103 S.Ct. 276. Furthermore, the Court clarified that such a citation was obviously insufficient when the record satisfied the federal habeas court that the federal claim asserted in the cited case was not the same as the federal claim on which federal habeas relief was sought. Id.

Years later, the Supreme Court readdressed the “fair presentation” requirement in Duncan v. Henry, 513 U.S. 364, 115 S.Ct. 887. The Duncan Court strictly construed the exhaustion requirement so as to mandate that, if state and federal constitutional law overlap in their applicability to a petitioner’s claim, the petitioner must raise his issue in terms of the applicable federal right in state court in order to obtain federal review of the issue. The Supreme Court explained, “[i]f a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal, but in state court.” Duncan, 513 U.S. at 365-66, 115 S.Ct. 887. Recently, the Supreme Court again focused upon the requirement of “fair presentation,” holding that “ordinarily a state prisoner does not ‘fairly present’ a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so.” Baldwin v. Reese, 541 U.S. 27, 124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (2004). The Baldwin Court commented that “[a] litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state-court petition or brief, for example, by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim ‘federal.’ ” Id., 541 U.S. at 32, 124 S.Ct. 1347. With regard to this statement, the Eleventh Circuit stated in McNair v. Campbell, 416 F.3d 1291 (11th Cir.2005):

If read in a vacuum, this dicta might be thought to create a low floor indeed for petitioners seeking to establish exhaustion. However, we agree with the district court that this language must be “applied with common sense and in light of the purpose underlying the exhaustion requirement!:] ‘to afford the state courts a meaningful opportunity to consider allegations of legal error without interference from the federal judiciary.’ ” McNair [v. Campbell ], 315 F.Supp.2d [1179] at 1184 [(M.D.Ala. 2004)] (quoting Vasques v. Hillery, 474 U.S. 254, 257, 106 S.Ct. 617, 620, 88 L.Ed.2d 598 (1986)). This is consistent with settled law established by the Supreme Court.... We therefore hold that “ ‘[t]he exhaustion doctrine requires a habeas applicant to do more than scatter some makeshift needles in the haystack of the state court record.’ ”

416 F.3d at 1302-03 (citations omitted).

An issue that was not properly presented to the state court and which can no longer be litigated under state procedural rules is considered proeedurally defaulted, that is, proeedurally barred from federal review. Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th Cir.1999). This court will also consider a claim proeedurally defaulted if it was presented in state court and rejected on the independent and adequate state ground of procedural bar or default. See Coleman v. Thompson, 501 U.S. 722, 734-35 and n. 1, 111 S.Ct. 2546, 2555 and n. 1, 115 L.Ed.2d 640 (1991); Caniff v. Moore, 269 F.3d 1245, 1247 (11th Cir.2001) (“[C]laims that have been held to be proeedurally defaulted under state law cannot be addressed by federal courts.”); Chambers v. Thompson, 150 F.3d 1324, 1326-27 (11th Cir.1998) (applicable state procedural bar should be enforced by federal court even as to a claim which has never been presented to a state court); accord Tower v. Phillips, 7 F.3d 206, 210 (11th Cir.1993); Parker v. Dugger, 876 F.2d 1470 (11th Cir.1989), rev’d on other grounds, 498 U.S. 308, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991). In the first instance, the federal court must determine whether any future attempt to exhaust state remedies would be futile under the state’s procedural default doctrine. Bailey, 172 F.3d at 1303. In the second instance, a federal court must determine whether the last state court rendering judgment clearly and expressly stated its judgment rested on a procedural bar. Id. A federal court is not required to honor a state’s procedural default ruling unless that ruling rests on adequate state grounds independent of the federal question. See Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989). The adequacy of a state procedural bar to the assertion of a federal question is itself a federal question. Lee v. Kemna, 534 U.S. 362, 122 S.Ct. 877, 885, 151 L.Ed.2d 820 (2002). The Eleventh Circuit has set forth a three-part test to determine whether a state court’s procedural ruling constitutes an independent and adequate state rule of decision. Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir.2001). First, the last state court rendering judgment must clearly and expressly state it is relying on state procedural rules to resolve the federal claim. Second, the state court’s decision on the procedural issue must rest entirely on state law grounds and not be intertwined with an interpretation of federal law. Third, the state procedural rule must be adequate. Id. The adequacy requirement has been interpreted to mean the rule must be firmly established and regularly followed, that is, not applied in an arbitrary or unprecedented fashion. Id.

To overcome a procedural default, the petitioner must show cause and prejudice or a fundamental miscarriage of justice in order for the federal habeas court to reach the merits of a claim. Tower, 7 F.3d at 210; Parker, 876 F.2d 1470. “For cause to exist, an external impediment, whether it be governmental interference or the reasonable unavailability of the factual basis for the claim, must have prevented petitioner from raising the claim.” McCleskey v. Zant, 499 U.S. 467, 497, 111 S.Ct. 1454, 1472, 113 L.Ed.2d 517 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986)). Lack of counsel or ignorance of available procedures is not enough to establish cause. Toiver, 7 F.3d at 210. To satisfy the miscarriage of justice exception, the petitioner must show that “a eonstitutional violation has probably resulted in the conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). “To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him.” Schlup, 513 U.S. at 327, 115 S.Ct. 851. Further:

a substantial claim that constitutional error has caused the conviction of an innocent person is extremely rare. To be credible, such a claim requires [a] petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence— that was not presented at trial.

Id.

Within this framework, the court will review Petitioner’s claims.

IV. PETITIONER’S CLAIMS

A. Ground One: “Petitioner is convicted either; as a result of a trial that was fundamentally unfair; and/or as a result of a trial that undermined the properfunctioning of the adversarial process so that the trial could not be relied on as having produced a just result; and/or the (herein itemized) violations constituted a fundamental flaw in the trial which undermined the structural integrity of the criminal process itself irrespective of prejudice and all trial errors herein identified thereby violated the 6th Amendment to the United States Constitution which states that ‘In all criminal prosecutions, the accused shall enjoy the right to a speedy public trial, by an impartial jury of the state ... wherein the crime shall have been committed ... to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; [and] to have compulsory process for obtaining witnesses in his favor ..

B. Ground Two: “Trial counsel was ineffective for not interjecting objections, on behalf of Petitioner, and in failing to preserve, for direct appeal review, an enormous and objectionable amount of prejudicial trial issues that collectively and cummulatively [sic] amounted to Jundamental/plain error. Trial counsel’s acts or omissions prejudiced Petitioner and therefore violated Petitioner’s constitutional rights to effective representation by trial counsel; guaranteed by the 6th Amendment to the United States Constitution which states that: ‘In all criminal prosecutions, the accused shall enjoy the right to ... have the assistance of counsel for his defence.’ There were no reasonable or plausible explanations for trial counsel’s acts or omissions; and a result more favorable to Petitioner would have likely occurred had it not been for trial counsel’s acts or omissions. ”

C. Ground Four: “Appellate Counsel was ineffective for failing to allege on direct appeal that trial counsel was ineffective for failing to object to and preserve prejudicial trial issues for direct appeal — errors apparent from the face of the record which were fundamental in nature. Appellate counsel’s acts or omissions prejudiced Petitioner which therefore violated Petitioner’s constitutional right to effective representation by trial counsel; guaranteed by the 6th Amendment to the United States Constitution which state that: ‘In all criminal prosecutions, the accused shall enjoy the right to ... have the assistance of counsel for his defence. ’ There were no reasonable or plausible explanations for trial counsel’s acts or omissions; and a result more favorable to Petitioner would have likely occurred had it not been for trial counsel’s acts or omissions. ”

In Ground One, Petitioner appears to assert his trial was fundamentally unfair because the prosecutor exceeded the trial court’s restrictions on the use of “Williams rule evidence” and made it a feature of Petitioner’s trial, and the prosecutor made improper comments during opening statements and closing arguments (Doc. 13 at 5-14).

In Ground Two, Petitioner asserts his trial counsel should have objected to the following alleged errors during trial: (1) the testimony of Mary Brewer, a child protective services worker in California, regarding Petitioner’s prior acts of child abuse (Petitioner refers to this testimony as the “Williams rule evidence”); (2) the opinion testimony of Mary Brewer; (3) the testimony of Tiffany Ballard (Petitioner’s wife) that Petitioner had choked her throughout their marriage; (4) the testimony of Mary Brewer, Tiffany Ballard, and Taylor Ballard (Petitioner’s daughter and the victim in this case) that Petitioner’s children had been removed from his and his wife’s custody as a result of child dependency proceedings in California; (5) the testimony of Mary Brewer that Petitioner and his wife were required to complete anger management and parenting skills training as a condition of reunification with their children in California; (6) the prosecutor’s impeaching Petitioner’s testimony with statements he made in the California dependency proceedings, even though he had not been “Mirandized” prior to the statements and was not represented by counsel; (7) the improper testimony of Michael Lomack, Petitioner’s cellmate at the jail, regarding his discussions with Petitioner about Petitioner’s trial strategy; (8) the improper comments by the prosecutor during opening statements; and (9) the improper comments by the prosecutor during closing arguments (Doc. 13 at 6-17).

In Ground Four, Petitioner contends his appellate counsel performed ineffectively by failing to raise the issues asserted in Grounds One, Two, and Three on direct appeal (id. at 20-21). Petitioner states he exhausted Grounds One, Two, and Four by raising them in his state habeas petition “as plain and fundamental error apparent on the face of the record” (Doc. 13 at 14, 18, 21).

Respondent contends that to the extent Petitioner raises a due process violation based upon the denial of his right to a fair trial, Petitioner failed to present this claim to the state courts (Doc. 28 at 7). Furthermore, even if Petitioner raised this due process claim in his state habeas petition, the claim was not properly presented, pursuant to the firmly established state procedural rule that habeas corpus cannot be used to litigate or re-litigate issues which could have been or were raised on direct appeal (id. at 7-9 (citing Breedlove v. Singletary, 595 So.2d 8, 10 (Fla.1992) (“Habeas corpus is not a second appeal and cannot be used to litigate or relitigate issues which could have been, should have been, or were raised on direct appeal.”))). Respondent additionally contends Petitioner’s claims of ineffective assistance of trial counsel asserted in Ground Two were not properly presented in a state habeas petition, pursuant to Rule 3.850(h) of the Florida Rules of Criminal Procedure; therefore, those claims were procedurally defaulted (Doc. 28 at 7-11, 23). Respondent argues that because the claims asserted in Grounds One and Two were procedurally defaulted in the state courts, they are barred from federal review (id. at 10). Respondent concedes, however, that the ineffective assistance of appellate counsel claims raised by Petitioner in Ground Four were properly raised and exhausted in his state habeas petition (id. at 19). Respondent contends Petitioner failed to show that the First DCA’s adjudication of those claims was contrary to or an unreasonable application of clearly established federal law (id. at 19-23).

In Petitioner’s reply, he appears to argue that he raised his due process claim (asserted in Ground One) in his state habeas petition by making the same substantive arguments he makes here but using different terminology (Doc. 31 at 2). He additionally appears to argue that the ineffective assistance of trial counsel claims were properly raised in his state habeas petition because the cumulative effect of those errors and the errors of appellate counsel presented not only issues of ineffective assistance of counsel, but also an issue of fundamental fairness of the entire criminal proceeding which deprived him of his liberty (id. at 3).

Upon review of the record, it appears that in Petitioner’s state habeas petition, he did not fairly present the due process claims he asserts in Ground One of the instant petition (that is, that the prosecutor improperly made the Williams rule evidence a feature of the trial and made improper comments during opening statements and closing arguments) (Ex. 0 at 13-47). Additionally, although Petitioner challenged the admission of the Williams rule evidence on direct appeal of his conviction, he presented the claim only as a matter of state law, not a federal constitutional issue (see Ex. D). Therefore, Petitioner failed to exhaust the issues raised in Ground One.

Petitioner may escape the federal procedural bar either by showing “cause for the default and prejudice” or establishing a “fundamental miscarriage of justice.” Bailey, 172 F.3d at 1306. “To establish ‘cause’ for procedural default, a petitioner must demonstrate that some objective factor external to the defense impeded the effort to raise the claim properly in the state court.” Wright v. Hopper, 169 F.3d 695, 703 (11th Cir.1999). In the instant case, Petitioner does not acknowledge his procedural default; however, he appears to allege cause by stating that his appellate counsel neglected to present these due process issues on direct appeal (Doc. 13 at 14). As will be discussed infra, appellate counsel was not ineffective for failing to raise the federal due process issues because they were not preserved in the trial court. Moreover, Petitioner has not presented new evidence establishing his actual innocence, so he cannot satisfy the miscarriage of justice exception. See Schlup, 513 U.S. at 327, 115 S.Ct. 851; Isaacs v. Head, 300 F.3d 1232, 1255 (11th Cir.2002). Therefore, Petitioner is procedurally barred from federal review of the due process claims asserted in Ground One.

With regard to Ground Two, Petitioner raised these claims of ineffective assistance of trial counsel in his state habeas petition (Ex. 0 at 13-47). The First DCA clearly and expressly stated that it construed the petition as a petition alleging ineffective assistance of appellate counsel, since that was the only proper remedy that Petitioner could seek by way of his state habeas petition (Ex. P (citing Fla. R.App. P. 9.040(c) and 9.141(c))). The court subsequently denied the ineffective assistance of appellate counsel claims on the merits (Ex. Q).

In Florida it is a firmly established and regularly followed rule that a court may not entertain a habeas petition seeking relief that is available through a Rule 3.850 motion. See Fla. R.Crim. P. 3.850(h); Reed v. State, 875 So.2d 415, 439-40 (Fla.2004) (claims of ineffective assistance of trial counsel are improperly raised in a petition for writ of habeas corpus); Breedlove, 595 So.2d at 10 (claims of trial counsel’s ineffectiveness should be brought in Rule 3.850 motion and are not cognizable in habeas corpus proceedings; also, habeas corpus is not a second appeal and cannot be used to litigate or relitigate issues which could have been, should have been, or were raised on direct appeal; therefore, such claims are proeedurally barred from review in habeas corpus); see also Thompson v. Sec’y, Dep’t of Corrs., 595 F.3d 1233, 1236-37 (11th Cir.2010) (“Under Florida law, an individual convicted of a noncapital crime must, with limited exceptions, file a collateral post-conviction challenge to his conviction and sentence via a Rule 3.850 motion rather than a habeas corpus petition.”) (citations omitted); see also Ousley v. Sec’y for Dep’t of Corrs., 269 Fed.Appx. 884, 887 (11th Cir.2008) (unpublished) (recognizing well-established Florida procedural rule that prisoner may not use state habeas petition to collaterally attack conviction or sentence) (citing Leichtman v. Singletary, 674 So.2d 889, 891 (Fla. 4th DCA 1996) and Fla. R.Crim. P. 3.850(h)).

In the instant case, by virtue of the First DCA’s order clearly and expressly stating that it construed Petitioner’s habeas petition as a petition alleging ineffective assistance of appellate counsel, and in light of the firmly established procedural rule that claims collaterally challenging the legality of Petitioner’s detention may not be entertained in a habeas petition, the First DCA implied that it would consider only those claims for which habeas corpus was the proper remedy, that is, Petitioner’s claims ineffective assistance of appellate counsel. Therefore, Petitioner procedurally defaulted the claims of ineffective assistance of trial counsel asserted in his state habeas petition.

As with Ground One, Petitioner does not acknowledge his procedural default; however, he alleges his appellate counsel was ineffective for failing to raise the underlying trial errors on direct appeal as fundamental error and failing to raise trial counsel’s alleged errors (Doc. 13 at 18). As discussed infra, appellate counsel was not ineffective for failing to raise these issues on direct appeal. Therefore, Petitioner is proeedurally barred from federal review of his ineffective assistance of trial counsel claims asserted in Ground Two of his federal petition, see Bailey, 172 F.3d at 1302-03, with the exception of two claims, namely, the claim that trial counsel was ineffective for failing to object to evidence of Petitioner’s involvement in a prior incident of child abuse in California, and the claim that trial counsel was ineffective for failing to object to the prosecutor’s appeal to “familial sympathy” in her closing argument. Petitioner exhausted these claims because he presented them in his Rule 3.850 motion (see Ex. K at 81-83, 92-94). Therefore, the undersigned will review the state court’s adjudication of those two claims of ineffective assistance of trial counsel (as well as the ineffective assistance of trial counsel claims presented in Ground Three, infra, which were also presented in Petitioner’s Rule 3.850 motion). Additionally, the court will review Petitioner’s claims of ineffective assistance of appellate counsel asserted in Ground Four, since Respondent concedes those claims were properly raised and adjudicated in Petitioner’s state habeas petition.

1. Ineffective Assistance of Trial Counsel

The standard for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To obtain relief under Strickland, Petitioner must show (1) deficient performance by counsel and (2) a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different. 466 U.S. at 687-88, 104 S.Ct. 2052. If Petitioner fails to make a showing as to either performance or prejudice, he is not entitled to relief. Id. at 697, 104 S.Ct. 2052. Thus, this court need not address the prejudice prong if the court determines that the performance prong is not satisfied. Turner v. Crosby, 339 F.3d 1247, 1279 (11th Cir.2003); Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir.2000) (“Because both parts of the test must be satisfied in order to show a violation of the Sixth Amendment, the court need not address the performance prong if the defendant cannot meet the prejudice prong, or vice versa.”) (citation omitted).

“The petitioner’s burden to prove, by a preponderance of the evidence, that counsel’s performance was unreasonable is a heavy one.” Jones v. Campbell, 436 F.3d 1285, 1293 (11th Cir.2006) (citing Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir.2000) (en banc)). The focus of inquiry under the performance prong is “reasonableness under prevailing professional norms.” Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052. “Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689, 104 S.Ct. 2052. If the record is not complete regarding counsel’s actions, “then the courts should presume ‘that what the particular defense lawyer did at trial — for example, what witnesses he presented or did not present — were acts that some lawyer might do.’ ” Jones, 436 F.3d at 1293 (citing Chandler, 218 F.3d at 1314-15 n. 15). Counsel’s performance is deficient only if it is “outside the wide range of professional competence.” Jones, 436 F.3d at 1293 (citing Strickland, 466 U.S. at 690, 104 S.Ct. 2052); Lancaster v. Newsome, 880 F.2d 362, 375 (11th Cir.1989) (emphasizing that petitioner was “not entitled to error-free representation”).

As stated by the Eleventh Circuit:

No absolute rules dictate what is reasonable performance for lawyers, [citing Strickland, 104 S.Ct. at 2065; other citations omitted]. “Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions.” Strickland, 104 S.Ct. at 2065; [other citations omitted]. The law must allow for bold and for innovative approaches by trial lawyers. And, the Sixth Amendment is not meant “to improve the quality of legal representation,” but “simply to ensure that criminal defendants receive a fair trial.” Strickland, 104 S.Ct. at 2065.

Chandler, 218 F.3d at 1307. However, not every strategic decision passes constitutional muster. Whether a particular decision by counsel was a tactical one is a question of fact, Hardwick v. Crosby, 320 F.3d 1127, 1163 (11th Cir.2003), and the state court’s resolution of that issue enjoys a strong presumption of correctness. See 28 U.S.C. § 2254(e)(1); Jackson v. Herring, 42 F.3d 1350, 1367 (11th Cir.1995); Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir.1991). Whether a particular tactical decision was a reasonable one, however, is a question of law, Hardwick 320 F.3d at 1163; Jackson, 42 F.3d at 1367; Horton, 941 F.2d at 1462. In determining whether counsel’s decision was reasonable, “every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. Strickland, 466 U.S. at 691, 104 S.Ct. 2052. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments. Id. “One of the primary duties defense counsel owes to his client is the duty to prepare himself adequately prior” to a legal proceeding. Lawhorn v. Allen, 519 F.3d 1272, 1295 (11th Cir.2008) (quoting Magill v. Dugger, 824 F.2d 879, 886 (11th Cir.1987)). Such preparation includes an understanding of the legal procedures and the legal significance of tactical decisions within those proceedings. Young v. Zant, 677 F.2d 792, 794, 799-800 (11th Cir.1982) (an attorney’s reliance on former law and unawareness of procedure deprived his client of effective assistance). Counsel’s decision whether to call a particular witness is a matter of trial strategy entitled to great deference. Chandler, 218 F.3d at 1314 n. 14 (citing Waters v. Thomas, 46 F.3d 1506, 1512, 1518-19 (11th Cir.1995) (en banc)). “Complaints of uncalled witnesses are not favored, because the presentation of testimonial evidence is a matter of trial strategy and because allegations of what a witness would have testified are largely speculative.” Buckelew v. United States, 575 F.2d 515, 521 (5th Cir.1978).

As to the prejudice prong of the Strickland standard, Petitioner’s burden of demonstrating prejudice is high. Wellington v. Moore, 314 F.3d 1256, 1260 (11th Cir.2002). The Supreme Court has cautioned that “ ‘[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.’ ” Id. (quoting Strickland, 466 U.S. at 693, 104 S.Ct. 2052). However, the Court has also clarified that a petitioner need not demonstrate it ‘more likely than not, or prove by a preponderance of evidence,’ that counsel’s errors affected the outcome. Strickland, 466 U.S. at 693-94, 104 S.Ct. 2052. Instead,

The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Id. at 694, 104 S.Ct. 2052. Indeed, it would be “contrary to” the law clearly established in Strickland for a state court to reject an ineffectiveness claim for failing to prove prejudice by a preponderance of the evidence. Williams v. Taylor, 529 U.S. at 405-406, 120 S.Ct. 1495.

The prejudice assessment does “not depend on the idiosyncracies of the particular decisionmaker,” as the court should presume that the judge or jury acted according to law. Strickland, 466 U.S. at 694-95, 104 S.Ct. 2052. “When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695,104 S.Ct. 2052.

a. Failure to object to Williams rule evidence

Petitioner contends trial counsel provided ineffective assistance by failing to object to evidence of his involvement in a prior incident of child abuse in California (Doc. 13 at 15-17). He acknowledges that trial counsel made a motion in limine to exclude the Williams rule evidence, but he contends counsel should have objected to testimony that “went beyond the In Li-mine ruling of the court” (id. at 16).

In Ground Six of Petitioner’s Rule 3.850 motion, he argued that trial counsel failed to file a response to the State’s notice of intent to use Williams rule evidence and allowed the State to introduce this evidence without “giv[ing] the Williams Rule Evidence, at the very least, any form of ‘Text Book’ adversarial contest” (Ex. K at 81-83). In Ground Seven of his motion, he argued that trial counsel was ineffective for failing to file a motion for new trial on the ground that the Williams rule evidence was erroneously admitted (id. at 84-87).

The trial court denied the claims, and the decision was affirmed by the First DCA. While the affirmance was a per curiam opinion without reasoning, this court presumes that the First DCA’s decision affirms the reasoning, as well as the judgment, of the circuit court. “‘Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.’ ” Sweet v. Sec’y Dept. of Corr., 467 F.3d 1311, 1316-17 (11th Cir.2006) (quoting Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 2594, 115 L.Ed.2d 706 (1991)); see also Harmon v. Barton, 894 F.2d 1268, 1273 (11th Cir.1990) (noting that the “clear inference” to be drawn from a per curiam affirmance without written opinion is that the appellate court “accepted not only the judgment but the reasoning of the trial court.”).

In the trial court’s written opinion denying Petitioner’s claims, the court identified the Strickland standard as the controlling legal standard for analyzing claims of ineffective assistance of counsel (Ex. K at 280, 284). Because the state court correctly identified Strickland as the governing precedent, Petitioner is entitled to federal habeas relief only if he demonstrates that the state court decision was based upon an unreasonable determination of the facts or was an unreasonable application of Strickland.

The trial court determined that the record showed that defense counsel adequately argued a motion in limine seeking to exclude the Williams rule evidence (Ex. K at 284). In support of this conclusion, the court attached a portion of the transcript of the pre-trial proceeding held on the motion in limine (id. at 296-301). Additionally, the court concluded that a motion for new trial would have had no chance of success under Rule 3.600 of the Florida Rules of Criminal Procedure, because motions for new trial are properly granted on limited grounds related to sufficiency of the evidence, new and material evidence, and juror errors, and admission of Williams rule evidence did not fall into any of those categories (id. at 285). Moreover, the court found that the Williams rule evidence did not become a feature of the trial such that the probative value of Mary Brewer’s testimony was outweighed by its prejudicial nature (id.). Therefore, the court concluded, Petitioner failed to satisfy the prejudice prong of Strickland (id. at 284).

The transcript attached to the Rule 3.850 order shows that defense counsel made a motion in limine to exclude any evidence of prior acts of child abuse (id. at 296). Counsel argued that such evidence was not sufficiently similar or relevant to the present allegations of child abuse because the prior incident did not involve choking (id. at 296, 299). Counsel argued further that the prejudicial effect of the evidence would outweigh its probative value (id.). Additionally, counsel argued that if the court admitted the evidence, it should not be made a feature of the trial, and the prosecutor should not be permitted to mention it in her opening statement (id. at 297, 299-300). The trial court denied defense counsel’s motion to exclude the evidence, but also indicated that the prosecutor should be careful not to make the Williams rule evidence a feature of the trial (id. at 301). Additionally, the court suggested that defense counsel “be ready to object ... in case you feel like it’s going too far” (id.). During Mary Brewer’s testimony (the child protective services worker from California), defense counsel objected (on relevancy grounds) to the prosecutor’s questions as to whether Ms. Brewer observed any physical injuries on Ashley Ballard or Roshuan Ballard, Jr., Petitioner’s other two children, during her investigation of prior child abuse allegations involving Petitioner (id. at 141-42). The trial court overruled the objections (id.).

Petitioner argues the State’s presentation of Williams rule evidence went too far. He asserts the prosecutor stated during the pre-trial hearing on the motion in limine that she intended to ask the victim one question about the incident in California, and she intended to ask approximately five questions of Mary Brewer, the child protective services worker from California (Doc. 13 at 7). Petitioner contends the prosecutor went beyond this limitation by eliciting the following testimony (as summarized by Petitioner):

On direct examination, she [Mary Brewer] testified that she was employed as a protective services worker for the County of San Diego Human Services Bureau in the year of 2000. She worked for the court intervention and investigation unit who acted on behalf of California Law Enforcement and investigated instances of alleged child abuse and the existence of possible criminal culpability in the alleged and previous California Child Abuse process.

She investigated child abuse allegations against petitioner and his wife— the abuse of their three children. The allegations were reported anonymously.

Another worker at the Polenski Center initiated the initial intake file the night the children were brought in. Mary Brewer’s part in the investigation began the next morning during her shift.

A doctor at the Polenski Children’s Center made physical assessments. The investigation was compiled by an assortment of investigative agents and court personnel, independent of each other on behalf of the Juvenile Court.

The children were made dependents of the eouri/state when Ms. Brewer’s part of the investigation was completed. Ms. Brewer concluded the children had been abused. It was her opinion and she had thought the father (petitioner) was responsible for the actions.

As a basis for her conclusions, Mary Brewer utilized the complied and written results of interviews, conducted by Child Protection Services and court investigators [and] reports generated as a result [thereof,] who interviewed witnesses of the alleged abuse of the Ballard children in the California collateral civil proceedings.

Mary Brewer further testified the California investigation revealed that Ashley Ballard — the other daughter of petitioner — ‘had some bruising and some old scars; ... and that these injuries to Ashley ... consisted of bruising, old scars on upper thigh and buttocks.’

Three prosecution witnesses — Mary Brewer, Tiffany Ballard and the victim-testified that the children had been removed from the petitioner and his wife as a result of the California investigation.

Furthermore, testimony was elicited that the parents were not to be reunified with their children until they completed respective case management!,] anger management!,] and parenting skills classes. The children were reunited with petitioner and his wife. They relocated to Florida.

(Doc. 13 at 8-10,16).

The state court’s conclusion that the Williams rule evidence did not become a feature of the trial such that its probative value was outweighed by its prejudicial nature was a determination of state law. Indeed, this state law issue was the basis for the First DCA’s reversal of Petitioner’s first conviction:

Generally, evidence of prior bad acts or crimes is relevant to prove a material fact at issue if the evidence is not being admitted solely to prove bad character or propensity. See § 90.404(2)(a), Fla. Stat. (2003). However, for such evidence to be admissible, its prejudicial effect must not outweigh its probative value. § 90.403, Fla. Stat. (2003); Turtle v. State, 600 So.2d 1214, 1218 (Fla. 1st DCA 1992). Here, the trial court permitted the state to make the collateral crime evidence a feature of the trial by presenting testimony regarding the evidence from four of its six witnesses; by publishing photographs of injuries allegedly sustained as a result of the alleged prior abuse; and by emphasizing the evidence in both its opening statement and its closing arguments. This was error because, by becoming a feature of the trial, the prejudicial effect of the evidence outweighed its probative value. We have considered, but reject, the state’s argument that any error was harmless. See State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986) (for error to be harmless, the state must satisfy the reviewing court to the exclusion of all reasonable doubt that the error did not affect the verdict); Goodwin v. State, 751 So.2d 537 (Fla.1999) (reaffirming that the DiGuilio test applies in criminal appeals to both constitutional and non-constitutional error).

(Ex. B). Ballard v. State, 899 So.2d 1186, 1187 (Fla. 1st DCA 2005).

“[A] state court’s interpretation of state law ... binds a federal court sitting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005); Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 1886, 44 L.Ed.2d 508 (1975) (“State courts are the ultimate expositors of state law,” and federal courts must therefore abide by their rulings on matters of state law) (citations and footnote omitted); Carrizales v. Wainwright, 699 F.2d 1053, 1055 (11th Cir.1983). In light of the state court’s determination that there was no legal basis for the argument that the Williams rule evidence became a feature of the trial such that the probative value of the evidence was outweighed by its prejudicial nature, as well as the state court’s determination that a motion for new trial would not have been properly granted under Rule 3.600, Petitioner failed to show a reasonable probability that the result of the trial would have been different if counsel had objected to the Williams rule evidence and moved for a new trial. Therefore, the state court’s denial of this ineffective assistance of counsel claims was not an unreasonable application of Strickland.

b. Failure to object to prosecutor’s closing argument

Petitioner contends his trial counsel should have objected to the following comments of the prosecutor during closing arguments:

... Make no mistake that the state would argue to you that the victim’s mother in this case, Tiffany Ballard, is just as guilty as he is for failing to protect her child when she was strangled in September of the year 2002.

... And I want you to ... think about what that child has been through. You have heard testimony that in California in the year 2000 she was removed from the custody of her parents because she was beaten by her father. He admitted that to you on the stand.

Those children were taken away. She was five at the time. Her little sister was three. Those children were taken away from those parents and placed in foster care at the age of five and three.

The parents obviously got these children back somehow, and they land here in Florida. Two years later she is taken again from the custody of her parents, Tiffany Ballard and the defendant in this case. Now she is seven and her little sister is five and her little baby brother is two.

Today she sits here and testifies before you three years after the incident and she tells you she is in foster care today. And then she has to say come in [sic] at age nine and sit in front of eight strangers in a courtroom full of people in front of her father, her biological father, the man who created her. A nine year old little child has to get up there on the stand with her dad in the room and tell you what he did to her.

Now, how easy do you think that was for that child to do? Think about it. How easy is it to understand why that child would not want to talk about what she has been through. She has been through abuse after abuse after abuse, at the hands of both her father and her mother, her mother for failing to protect her, and her father for laying his hands on her with coat hangers, with hands, strangling the child until she passed out.

Do you really believe that child came in here today and lied to you to protect someone? Who the heck is she protecting? She doesn’t have her mother anymore. She doesn’t have her father anymore. She is in foster care. Her whole world has been turned upside down, her entire life. And yet, you’re to believe that that little girl came in here and lied to you about being choked by her father? Why? What on earth would a little nine year old girl, what motive could she possibly have to come in here and tell you that story?

And I agree exactly with what Ms. Dandelake [defense counsel] said my position would be on her memory. She doesn’t want to remember that. She doesn’t want to remember being whipped and taken away from her parents in California. She doesn’t want to remember being strangled by other [sic] own father.

... This child has suffered, believe me for that.

There is only one person in this courtroom today that has a reason to lie, and that is the defendant in this case, who is looking at a substantial amount of time in prison for what he did to his little girl.

What is Ms. Ballard’s motive to come in here and lie? There is no reason for her to come in here and lie either....

It’s pretty convenient that the defendant admits the allegations now in California. He really has no choice but to admit the allegations. Now, you heard the testimony of Ms. Brewer.... And I asked her if the defendant admitted the allegations then, and he denied the allegations.

And now he sits here today, he wants you to believe him, and believe that he doesn’t, first of all remember that he denied the allegations. Well, I would argue that nobody forgets those types of allegations and nobody would forget — •

The defendant didn’t forget that he denied beating those children back then. He lied about it then and he is lying about it now, to save his own butt. Because neither him nor his wife, the mother of that child, took care of those children, and should have had those children — he abused them and she let it happen.

You have got the testimony of Mr. Lomack [Petitioner’s cellmate]. Even if you set aside his testimony all together, the state has proved to you beyond and to the exclusion of a reasonable doubt that the defendant is guilty. You have only to listen to that little girl’s testimony to know that he is guilty.

I guess there is some phrase, if you want to, you know, get to the devil, you got to go to hell, whatever, something like that. Sometimes we have to rely on those people, and we are trying to give you as much as [sic] information about this case as we can. So we called Mr. Lomack, and of course, you need to evaluate his testimony just like any other witness.

He is guilty of exactly what he is charged with. And, you know, I don’t know how he could look you in the face and say he isn’t. But the defendant is guilty of what exactly what [sic] he is charged with.

Csee Doc. 13 at 12-14; Ex. C at 208-16).

Petitioner contends trial counsel should have objected to the comments on the following grounds: (1) illegal bolstering of the credibility of the prosecution witnesses; (2) illegal reference to Petitioner as a “liar” and the “devil”; (3) illegal invasio