[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOV 23, 2011
No. 09-16011 JOHN LEY
CLERK
D. C. Docket No. 08-00334-CV-RDP-RRA
MARK DUKE,
Petitioner-Appellant,
versus
RICHARD ALLEN,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Alabama
ON PETITION FOR REHEARING EN BANC
Before DUBINA, Chief Judge, TJOFLAT, EDMONDSON, CARNES,
BARKETT, HULL, MARCUS, WILSON and MARTIN, Circuit Judges.*
*
Judge William H. Pryor Jr. was recused in this case and did not participate in the en banc
poll.
The court having been polled at the request of one of the members of the
Court and a majority of the Circuit Judges who are in regular active service not
having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure), the
Suggestion of Rehearing En Banc and the Petition for Rehearing are DENIED.
/s/ JOEL F. DUBINA
____________________________
Chief Judge
2
BARKETT, Circuit Judge, dissenting, in which WILSON, Circuit Judge, joins:
I dissent from the denial of rehearing en banc because the panel opinion
eviscerates the protections afforded defendants under Griffin v. California, 380
U.S. 609 (1965).
The Supreme Court has instructed that, under AEDPA, “deference does not
imply abandonment or abdication of judicial review.” Miller-El v. Cockrell, 537
U.S. 322, 340 (2003). Here, the Alabama court’s adjudication of Mark Duke’s
claim involved the most “unreasonable application of[] clearly established Federal
law,” 28 U.S.C. § 2254(d)(1), because it “unreasonably fail[ed] to extend a clearly
established legal principle,” the Fifth Amendment prohibition against commenting
on a defendant’s silence, to the facts of this case. Gore v. Sec’y for the Dep’t of
Corr., 492 F.3d 1273, 1293 (11th Cir. 2007) (citations omitted).1
The Alabama court’s finding that the prosecutor was not referring to the
defendant, Mark Duke, in his closing argument is an unreasonable and wholly
1
In his closing argument, the prosecutor stated, “there’s a witness that you heard from but
he didn’t come in here and talk to you from this witness stand. After he shot, stabbed and cut the
throat of Randy Duke, he took Randy Duke’s blood with him throughout that house.” In denying
the defendant’s motion for a mistrial, the trial court determined that the “he” the prosecutor was
referring to was Randy Duke’s blood, and not Mark Duke.
Thus, Alabama’s adjudication also “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). If the Alabama court had, conversely, made the factual finding that the prosecutor’s
statement did refer to Mark Duke, the legal conclusion would necessarily have been that this
statement violated Mark Duke’s rights under Griffin.
3
unsupported finding that is only theoretically possible if the record in this case is
ignored and we were to apply an unnatural reading of the prosecutor’s words.
Mark Duke should prevail on the basis of the prosecutor’s unconstitutional
comment alone. However, defense counsel’s immediate response, asking that the
record reflect that the prosecutor was pointing at Mark Duke while making this
statement, solidifies the unreasonableness of the Alabama court’s adjudication.
Such an egregious example of prosecutorial misconduct, followed by a state
court’s failure to adhere to basic tenets of constitutional criminal procedure,
should not be permitted to stand. AEDPA is not a rubber stamp, whereby even
cases on all fours with seminal federal precedent are unreviewable. Accordingly,
this case is one that should be reheard en banc.
4
WILSON, Circuit Judge, dissenting:
I join Judge Barkett’s dissent, for the reasons she states, and for the reasons
that I articulated in my prior dissent from the panel’s opinion.
5