[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-12053 ELEVENTH CIRCUIT
JULY 2, 2012
Non-Argument Calendar
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:07-cv-23016-JAL
ANTHONY B. WILSON,
Petitioner-Appellant,
versus
DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 2, 2012)
Before TJOFLAT, EDMONDSON and FAY, Circuit Judges.
PER CURIAM:
In Wilson v. State, the Florida District Court of Appeal affirmed Anthony
Wilson’s convictions for “attempted first degree murder and burglary with a
battery while armed with a knife, in connection with the stabbing of Antron Pope
inside Pope’s home.” 880 So.2d 1287 (Fla. 3d D.C.A. 2004). After exhausting his
state remedies, Wilson petitioned the U.S. District Court for the Southern District
of Florida for a writ of habeas corpus. 28 U.S.C. § 2254. The district court denied
relief. Wilson appealed, and we issued a certificate of appealability on one issue,
to-wit:
Whether the district court erroneously applied the deference standard
under 28 U.S.C. § 2254(d) to Wilson’s claim, and, if so, whether the
district court erred in finding that the prosecutor’s questions and
comments, regarding whether Wilson believed that the other
witnesses were lying and conspiring against him, did not constitute a
violation of Wilson’s constitutional rights?
As the district court stated in denying habeas relief, the “claim” Wilson presented
was
whether Wilson was denied a fundamentally fair trial due to alleged
prosecutorial misconduct during cross-examination and closing
arguments. Wilson allege[d] that the prosecutor was permitted to ask
him . . . whether the prosecution’s witnesses were lied during their
testimony and were conspiring against him. The prosecutor later
made reference to Wilson’s belief in the conspiracy against him
during summation.
Order, March 30. 2011, at 1-2. The relevant portion of the challenged cross-
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examination was this:
Q: Now you sat there the whole time and listened to what
everybody said?
A: Yes.
Q: You heard what Kia said. That you were harassing Shirley,
you were were coming by constantly and wouldn’t go away?
A: I heard everything.
Q: You heard what Dakeidra said, you were coming to the house
and you were harassing Shirley and wanted Shirley back. You
heard that?
A: Yes.
Q: You heard Antron’s testimony, yes?
A: Yes.
Q: And you heard today, Shirley’s own mother come in here and
testify about how you were threatening her daughter and how you
were threatening Antron. But they’re all lying?
DEFENSE COUNSEL: Objection. He has to be here during trial.
THE COURT: No speaking objection. Objection overruled. Talk
about it sidebar. Continue.
DEFENSE COUNSEL: May I have a sidebar? It is improper to ask
one witness—
THE COURT: Stop, stop. That is a speaking objection.
Q: Do you believe that all these witnesses are conspiring against
you?
A: Well—
Q: That’s what you think, this is a big conspiracy? You’ve got the
officer. You’ve got Shirley’s mother. You’ve got Shirley’s friend.
You got Antron, the exboyfriend. You got everybody coming in
here saying the same thing, but it is because they are conspiring
against you?
DEFENSE COUNSEL: Objection.
That is argumentative.
THE COURT: Overruled.
Q: Yes or no, are they conspiring against you?
A: Yes.
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Id. at 2. And the relevant portion of the challenged jury argument was:
You have heard from a lot of witnesses. [Wilson] yesterday tells you
that its a conspiracy. Now, we’ve heard a lot of preposterous things,
but that is the ultimate. To say that Shirley’s mother and Antron
Pope, his family, his own friend, Dakeidra and Kia all came in here to
conspire against him, because of what? Because it is not true. There
is no conspiracy. The only thing we’re trying to do is achieve the
truth, get to justice, ladies and gentlemen.
Id. at 3.
We review de novo the district court’s decision rejecting Wilson’s due
process claim. See 28 U.S.C. § 2254(d), as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). Pursuant to the AEDPA, a
district court must deny habeas relief to a state prisoner on claims that were
previously adjudicated on the merits in state court, unless the state court’s
adjudication: “(1) . . . 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) . . . 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). In
this case, the questions we must decide are whether the Florida District Court of
Appeal’s decision rejecting the claim the district court set out above “was contrary
to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.”
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The district court of appeal found that the prosecutor’s questions on cross-
examination “were improper” under Florida law, as announced in Whitfield v.
State, 549 So.2d 1201 (Fla. 3d DCA 1989), but that the conduct constituted
“harmless error beyond a reasonable doubt.” Wilson, 880 So.2d at 1289. The
court did not pass on the propriety of the prosecutor’s “conspiracy” comments to
the jury because, in the court’s reading of the trial transcript, the “conspiracy of
witnesses against Wilson was not mentioned during the State’s closing argument.”
Id. The court was mistaken; as indicated in the district court’s order at 3, the
conspiracy was mentioned.
Neither the district court of appeal’s decision affirming Wilson’s conviction
nor the district court’s order denying habeas relief cited a Supreme Court decision
holding, or even intimating, that asking a defendant on cross-examination whether
a prosecution witness lied constitutes a denial of due process of law. The same
goes for the prosecutor’s conspiracy references closing argument; neither Wilson
nor the district court in its Order cites a Supreme Court decision anywhere in
point. Nonetheless, we will assume for sake of argument that the Supreme Court
would treat the prosecutorial conduct complained of as presenting prima facie a
due process claim. Further, because the district court of appeal did not pass on the
prosecutor’s “conspiracy” comments in closing argument, we consider the
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propriety of the comments de novo. And doing so, we ask whether the trial court
error—in overruling defense counsel’s objection to the prosecutor’s questioning
on cross-examination and (we assume) to the prosecutor’s “conspiracy” reference
in closing argument—“‘had a substantial and injurious effect or influence in
determining the jury’s verdict.’” Brecht v. Abrahamson, 507 U.S. 617, 637, 113
S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States,
328 U.S. 750, 766, 66 S.Ct. 1239, 1253, 90 L. Ed.2d 1557 (1946).
We conclude that the error was harmless. As the district court of appeal
remarked, “[t]he questions [put to Wilson on cross-examination] cannot possibly
vitiate the entire eight-day trial, and they did not change the physical evidence of
multiple stab wounds suffered by Pope. 880 So.2d at 1289. The same is true with
respect to the prosecutor’s comments in closing argument.
Accordingly, the district court’s decision denying Wilson habeas corpus
relief is,
AFFIRMED.
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Anthony B. wilson v. Department of Corrections
Combined Opinion