Martin v. Cain

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________

No. 99-30585
____________________

LESLIE DALE MARTIN,

Petitioner-Appellant,
versus

BURL CAIN, Warden,
Louisiana State Penitentiary,

Respondent-Appellee.
_________________________________________________________________

Appeal from the United States District Court
for the Western District of Louisiana
_________________________________________________________________
_______________________
March 27, 2001

ON REMAND FROM THE UNITED STATES SUPREME COURT

Before KING, Chief Judge, BARKSDALE, and STEWART, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Leslie Dale Martin, sentenced to death in Louisiana state

court for first degree murder, appealed the denial of his federal

habeas application, the district court having granted a certificate

of appealability (COA) on two interrelated claims regarding the

testimony of the State’s key witness concerning Martin’s committing

the murder in connection with aggravated rape: ineffective

assistance of counsel and a Brady claim. Applying our court’s

then-contested standard of review, we affirmed the denial of habeas

relief. Martin v. Cain, 206 F.3d 450, 461 (5th Cir.), vacated, 121

S. Ct. 32 (2000).
 That standard of review was rejected subsequently in Williams

v. Taylor, 120 S. Ct. 1495 (2000). Concomitantly, concerning the

proper standard of review for the case at hand, the Supreme Court

granted certiorari, and vacated and remanded for us to consider

this case in the light of Williams. Martin v. Cain, 121 S. Ct. 32,

32 (2000).

On remand, and applying the standard adopted in Williams, we

AFFIRM. Other than those parts of the opinion in which we apply

that standard, this opinion closely tracks our previous one.

I.

On 20 June 1991, Martin went to a bar in Lake Charles,

Louisiana, where his companion, Roland, introduced him to the

victim. Around 7:30 the next morning, Martin told his work

supervisor that he had met a college student, left the bar with

her, and woke up alone on Galveston Beach. The supervisor noticed

scratches on Martin’s forehead, neck, and shoulder that had not

been there the day before.

When Martin returned to his aunt’s home (where he was

residing), wearing different clothes from the previous night, and

no shirt or shoes, his cousin observed scratches on his chest and

back, a bite mark on his shoulder, and a tear under his tongue.

Martin explained he had fought a “country boy” at the bar.

That same morning, Martin related to another, Rushing, he

thought he may have killed someone the previous night, and asked

2
Rushing for an alibi. Although Rushing refused, Martin confided

that the victim had threatened to report him for rape. Martin

mentioned a shed in Iowa, Louisiana, and stated he had choked the

victim with a rope, cut her throat, dug her eyes out, and jumped up

and down on a wooden board placed on her neck. Subsequently,

Rushing testified that Martin, who had served several years of a

ten-year sentence for sexual battery, told him (Rushing) “he didn’t

want to be turned in for rape again”.

Rushing did not believe Martin’s story; but, nine days later,

when he learned the victim had been missing since leaving the bar,

he provided the information to police. During a search of sheds in

the Iowa area, authorities discovered the victim’s decomposing

body, with a rope around her neck, and a wooden board containing

human blood nearby. There was little forensic evidence. A tampon

taken from the body tested negative for seminal fluid; but, a

forensic expert testified that, due to decomposition, the test

could be a “false negative”.

Under Louisiana law, first degree murder includes “killing ...

a human being ... [w]hen the offender has specific intent to kill

or to inflict great bodily harm and is engaged in the perpetration

or attempted perpetration of ... aggravated rape....” LA. REV. STAT.

ANN. § 14:30(A)(1) (emphasis added). Rape is aggravated “[w]hen

the victim resists the act to the utmost, but whose resistance is

overcome by force”. LA. REV. STAT. ANN. § 14:42(A)(1).

3
 Trial testimony indicated there may have been a time lapse

between the charged rape and the charged murder. On direct appeal,

the Louisiana Supreme Court noted: “when the sexual crime and the

homicide ‘formed one continuous transaction’”, the elements of §

14:30(A)(1) are met. State v. Martin, 645 So. 2d 190, 194 (La.

1994) (quoting State v. Copeland, 530 So. 2d 526, 540 (La. 1988)

(holding that raping victim, driving across parish line, and then

committing murder, was “one continuous transaction”)). In any

event, Martin confirmed at oral argument here that he is claiming

there was no rape, not that a time lapse between the charged rape

and charged murder would preclude the capital conviction.

Three inmates who had been incarcerated with Martin after his

arrest — Williamson, Fontenot, and Sweet — each testified, in

varying detail, that: Martin told them he had sexual relations

with the victim; she accused him of rape; and he killed her,

because he did not want to return to prison. But, only Sweet’s

testimony established aggravated rape:

Q: [PROSECUTOR] You said that he didn’t say
where they went, it was to be together,
but what happened then?

A: Well, he said that he wanted to have sex
with her.

Q: Uh-huh (yes).

A: But she refused because her ministration
[sic] was on.

....

4
Q: What did he do then?

A: He said he had to have her.

Q: Okay.

A: So he overpowered her.

Q: He overpowered her. Did he tell you how
he overpowered her?

A: He struggled with her.

Q: He struggled with her?

A: Yes, sir.

Q: Did he tell you if she fought back?

A: Yes, she did. She resisted.

Q: And what happened then?

A: He overpowered her and had sex with her.

....

Q: ... Did he tell you what happened next?

A: Yes. He said that after he was finished
she became hysterical and went to
threatening him about she was going to
tell the police, and that he was wrong
for what he did.

Q: She was hysterical at the time according
to him?

A: Yes, sir.

....

Q: What did he think then? Did he tell you
what he was thinking about then?

A: He said he was thinking about going back
to the prison.

5
 Q: Okay.

A: And he said he wasn’t going back to
prison for nobody.

Q: What happened next?

A: He said his mind clicked and he began to
choke her.

....

Q: Did he tell you if she was fighting back?

A: Yes, sir, she was struggling.

Q: While he was trying to kill her?

A: Yes, sir.

(Emphasis added.)

In May 1992, a jury found Martin guilty of first degree

murder. After a penalty phase hearing, it found he should be

sentenced to death, as a result of finding the following

aggravating circumstances: the aggravated rape; and the offense

was committed in an especially heinous, atrocious, and cruel

manner.

On direct appeal, Martin contended, inter alia, that the

State, at most, proved forcible, not aggravated, rape. Martin, 645

So. 2d at 194. The former occurs when “the victim is prevented

from resisting the act by force or threats of physical violence

under circumstances where the victim reasonably believes that such

resistance would not prevent the rape”. LA. REV. STAT. ANN. § 14:42.1

(emphasis added). The difference between aggravated and forcible

6
rape is “the degree of force” and “the extent of resistance”.

Martin, 645 So. 2d at 195 (citing State v. Parish, 405 So. 2d 1080

(La. 1981)).

The Louisiana Supreme Court affirmed Martin’s conviction and

death sentence, based, inter alia, on the victim’s small size and

Sweet’s testimony that the victim “refused [Martin’s] advances,

that he struggled with her and she fought back, and that he

overpowered her”. Id. (The sufficiency of the evidence for

aggravated rape is not one of the certified issues here.) The

Supreme Court of the United States denied certiorari. Martin v.

Louisiana, 515 U.S. 1105, reh’g denied, 515 U.S. 1179 (1995).

In April 1997, the state district court, having held a two-day

evidentiary hearing that January, denied Martin’s application for

post-conviction relief. State v. Martin, No. 9459-91. The claims

certified for appeal by the federal district court are the same as

two of the many rejected by the state district court.

Martin filed a federal habeas application, presenting 17

claims, in November 1998. The district court, adopting the

detailed and comprehensive report and recommendation of the

magistrate judge, denied relief. Subsequently, it granted a COA on

two claims regarding Sweet’s testimony: whether Martin received

ineffective assistance of counsel; and whether the State violated

its disclosure obligation under Brady v. Maryland, 373 U.S. 83

(1963).

7
 II.

The Antiterrorism and Effective Death Penalty Act of 1996,

Pub. L. No. 104-32, 110 Stat. 1214 (AEDPA), applies because,

subsequent to its enactment, Martin filed his federal habeas

application. Green v. Johnson, 116 F.3d 1115, 1119-20 (5th Cir.

1997). Under AEDPA, a COA, granted by a circuit justice or judge,

is required in order for us to review a habeas claim. 28 U.S.C. §

2253; Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997). As

noted, two issues were certified: Brady; and ineffective

assistance of counsel.1

Under AEDPA, habeas relief is not available to a state

prisoner

with respect to any claim that was adjudicated
on the merits in the 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

1
In his brief, Martin requests “a COA with respect to the full
range” of the claimed counsel deficiencies and Brady violations, as
presented in his habeas petition. See United States v. Kimler, 150
F.3d 429, 430 (5th Cir. 1998) (noting that we may certify issues
not certified by the district court, if petitioner explicitly
requests it). But, because these requests are not briefed, we will
not consider them. See, e.g., Dardar v. Lafourche Realty Co., 985
F.2d 824, 831 (5th Cir. 1993) (“[q]uestions posed for appellate
review but inadequately briefed are considered abandoned”).

8
 facts in light of the evidence presented in
the State court proceeding.

28 U.S.C. § 2254(d) (emphasis added). Therefore, “pure questions

of law and mixed questions of law and fact are reviewed under §

2254(d)(1), and questions of fact are reviewed under § 2254(d)(2)”.

Corwin v. Johnson, 150 F.3d 467, 471 (5th Cir.), cert. denied, 525

U.S. 1049 (1998). Because this appeal involves mixed questions of

law and fact, § 2254(d)(1)’s standards apply. See Trevino v.

Johnson, 168 F.3d 173, 184 (5th Cir.) (whether State must disclose

evidence under Brady “is a mixed question of law and fact”), cert.

denied, 527 U.S. 1056 (1999); Creel v. Johnson, 162 F.3d 385, 395

(5th Cir. 1998) (ineffective assistance claims “present a mixed

question of law and fact”), cert. denied, 526 U.S. 1148 (1999).

In his appellate brief, Martin claims the state district

court’s concluding, on post-conviction review, that “the standard

for a Brady violation ha[d] not been met” (emphasis added), was not

a “full and fair adjudication”, and therefore, subpart (d)(1)

should not apply. At oral argument here, however, Martin

acknowledged its applicability. Accordingly, he appears to have

abandoned this contention. In any event, as did the district

court, we find this contention meritless.

As quoted, pursuant to § 2254(d)(1), there are two categories

of cases in which a state prisoner may obtain federal habeas relief

with respect to a claim that was adjudicated on the merits in state

9
court: if the state court decision was either “contrary to ...

clearly established Federal law, as determined by the Supreme

Court” or “involved an unreasonable application of[] clearly

established Federal law, as determined by the Supreme Court”. 28

U.S.C. § 2254(d)(1) (emphasis added).

Williams interpreted § 2254(d)(1)’s “contrary to” and

“unreasonable application” clauses. 120 S. Ct. at 1519-21. A

state court decision is “contrary to” clearly established Supreme

Court precedent if the state court: “applies a rule that

contradicts the governing law set forth in [Supreme Court] cases”;

or “confronts a set of facts that are materially indistinguishable

from a decision of [the Supreme] Court and nevertheless arrives at

a result different from [Supreme Court] precedent”. Id. at 1519-20

(emphasis added). On the other hand, a state court decision falls

within the “unreasonable application” clause when it unreasonably

applies Supreme Court precedent to the facts. Id. at 1521.

The state court decision at issue was not “contrary to”

clearly established Supreme Court precedent because: it did not

apply a rule contradictory to applicable Supreme Court precedent;

and it did not reach a result, under “materially indistinguishable”

facts, in conflict with such precedent. Accordingly, we focus on

§ 2254(d)(1)’s “unreasonable application” clause: whether the

state district court unreasonably applied Supreme Court precedent

to the facts.

10
 Williams instructs: “[A] federal habeas court making the

‘unreasonable application’ inquiry should ask whether the state

court’s application of clearly established federal law was

objectively reasonable”. Id. at 1521 (emphasis added). We cannot

reverse the denial of habeas relief simply by concluding that the

state court decision applied clearly established federal law

erroneously. Id. at 1522. Instead, we must conclude that such

application was also unreasonable. Id.

A criminal defendant may establish a Brady violation,

affecting his constitutional right to due process, by showing the

prosecution suppressed favorable evidence, including impeachment

evidence, material to his guilt. Jackson v. Johnson, 194 F.3d 641,

648-49 (5th Cir. 1999), cert. denied, 529 U.S. 1027 (2000). See

United States v. Bagley, 473 U.S. 667, 682 (1985). “The State’s

good or bad faith” in depriving the defendant of exculpatory

evidence “is irrelevant”, Rector v. Johnson, 120 F.3d 551, 558 (5th

Cir. 1997) (citing United States v. Agurs, 427 U.S. 97, 110

(1976)), cert. denied, 522 U.S. 1120 (1998); and the reviewing

court must assess “the cumulative effect” of the nondisclosure.

Hughes v. Johnson, 191 F.3d 607, 629 (5th Cir. 1999) (citing Kyles

v. Whitley, 514 U.S. 419, 436 (1995)), cert. denied, 528 U.S. 1145

(2000).

11
 “[E]vidence is material only if there is a reasonable

probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different”; and such

“‘reasonable probability’ is a probability sufficient to undermine

confidence in the outcome”. Bagley, 473 U.S. at 682 (emphasis

added). Therefore, to succeed on his Brady claim, Martin had to

“show[] that the favorable evidence could reasonably be taken to

put the whole case in such a different light as to undermine

confidence in the verdict”. Kyles, 514 U.S. at 435; Hughes, 191

F.3d at 629.

Brady’s “materiality” standard “is identical to” the prejudice

standard Martin had to satisfy to prevail on his ineffective

assistance claim. Johnson v. Scott, 68 F.3d 106, 109-10 (5th Cir.

1995), cert. denied, 517 U.S. 1122 (1996). For the latter, he had

to likewise demonstrate “a reasonable probability that, but for

counsel’s unprofessional errors”, the verdict would have been

different. Strickland v. Washington, 466 U.S. 668, 694 (1984);

Davis v. Johnson, 158 F.3d 806, 812 (5th Cir. 1998), cert. denied,

526 U.S. 1074 (1999). (Because, as discussed infra, the requisite

prejudice is lacking for the ineffective assistance claim, we need

not address the other prong of the Strickland test — deficient

performance vel non by counsel.)

12
 A.

For the two interrelated, certified claims, Martin contends:

contrary to Brady, the State failed to produce, and his counsel,

due to inadequate investigation — contrary to Strickland — failed

to discover2, substantial impeachment evidence relative to Sweet —

in his pre-trial video statement, cell location history, and

criminal record.

1.

On 17 July 1991, nine months before trial, and approximately

two weeks after Martin’s arrest, Sweet provided for the sheriff’s

office a videotaped statement about Martin. That September, Martin

requested witness statements and any Brady material. Responding

that there was no Brady material, the State refused to disclose the

statements.

In May 1992, 11 days before trial, Martin filed a supplemental

motion for exculpatory evidence, again requesting discovery, or an

in camera inspection, of certain inmate statements, including

Sweet’s. At the motion hearing, the State objected to disclosure,

again claiming no Brady material. Based on that representation,

the motion was denied.

2
Martin’s trial counsel, Pitre and Williams, were appointed to
replace the public defender on 30 March 1991, 42 days before trial.
At the state post-conviction evidentiary hearing, Williams
testified that he spent 60 hours, at most, on the case; the
majority of Pitre’s time, as lead counsel, was apparently spent
seeking a continuance. See Martin, 645 So. 2d at 197 (discussing
denial of continuance).

13
 On the other hand, before the State rested in the guilt-

innocence phase (but after the inmate-witnesses had testified), the

trial court did offer Martin’s counsel an opportunity to inspect

the requested statements. Counsel asked the judge to review the

statements instead.

The judge did so. At a bench conference, he related that, in

the video, Sweet stated that Martin told him he and the victim had

been drinking, and “they had sex but she didn’t want to do it, but

he was all worked up and he overpowered her and she was

hysterical”. The judge also reviewed and related portions of the

statements by Fontenot, Williamson, and three inmates who did not

testify. The judge reminded Martin’s counsel that, if they used

portions of the statements, the State could use the rest.

Again, only Sweet’s testimony supported aggravated rape.

Martin contends that this late disclosure, and his counsels’

failure to independently review the statements, prejudiced his

defense, asserting that, during closing arguments, the prosecutor

“compounded” the Brady violation by using Sweet’s pre-trial

statement, not produced to Martin, to strengthen Sweet’s

credibility.

Sweet and Martin became reacquainted in July 1991 when Martin,

having recently arrived at the jail, reminded Sweet they had known

each other previously. They were in the same jail section that

July (the offense was in late June) when Sweet gave his video

14
statement, and thereafter, becoming cell mates later that summer,

from 31 August to 4 September. Martin contends that the following

differences between Sweet’s pre-trial statement and his trial

testimony could have been used to impeach Sweet.

First, Sweet testified that Martin told him details of the

murder; in the statement, that Martin told him only that he

“grabbed [the victim] with both hands around the neck ... [and] he

killed her then”, and “didn’t get into details”.

Second, without mentioning any earlier consensual activity by

the victim, Sweet testified that Martin said the victim refused to

have sexual relations because of her “ministration” [sic]; in the

statement, that Martin “was all worked up because [the victim] had

been kissing on him and hugging all on him and he was aroused and

she didn’t want to go through with it ... for some unknown reason”.

Third, Sweet testified that Martin told him his (Martin’s)

friend, “Pinky” (Rushing’s nickname), “turned him in”; in the

statement, that Martin never mentioned the name of the informant.

(Martin notes that Sweet also related that the same friend was with

Martin when he met the victim, but trial testimony established it

was Roland, not Rushing.)

Fourth, and finally, Sweet testified that Martin never told

him the victim was intoxicated or that he had been drinking; in the

statement, that Martin said “they had been drinking”.

15
 The discrepancies between Sweet’s statement and testimony are

favorable to Martin, because they could have been used to attempt

to impeach Sweet’s credibility. And, because Sweet was the “key

witness on an essential issue”, United States v. Weintraub, 871

F.2d 1257, 1262 (5th Cir. 1989), then, arguably, the evidence was

material. See Wilson v. Whitley, 28 F.3d 433, 439 (5th Cir. 1994)

(finding withheld evidence material, relative to testimony

“essential” to defendant’s conviction), cert. denied, 513 U.S. 1091

(1995).

Martin also maintains his counsel failed to properly cross-

examine Sweet when, in response to a question by Martin’s counsel,

Sweet stated: “I don’t know if [Martin] said he raped her or had

sex with her”. Martin’s counsel did not question Sweet further

about this inconsistency.

The State responds that the differences in Sweet’s statement

and his testimony can be explained by the fact that, when Sweet

gave the statement, he and Martin had only been in the same jail

about two weeks, and Martin could have told Sweet the details

later, when they became cell mates. It asserts that the video did

not contain Brady material, until Sweet gave the somewhat differing

testimony at trial; notes that it did disclose his statement during

trial; and maintains that his testimony is reliable because, about

eight years prior to their joint incarceration, Sweet and Martin

had formed a friendship in a juvenile facility.

16
 On post-conviction review, the state district court concluded:

“A comparison of the video statement and trial testimony of Sweet

fail[ed] to reveal inconsistencies sufficient to possibly impeach”.

(Emphasis added.) It also concluded: because Sweet’s referenced

un-followed-up-testimony was made in the presence of the jury,

there was no prejudice.

Upon review of the record, we cannot say the state court’s

application of federal law was incorrect, much less unreasonable.

Martin’s counsel could have impeached Sweet generally with his

prior inconsistent statements (in the pre-trial statement and his

testimony on cross). But, what is material (reasonable probability

that trial’s result would have been different) is Sweet’s

description of the victim’s resistance and that resistance being

overpowered by Martin. In that regard, Sweet’s statement and

testimony are consistent.

2.

Martin asserts that, because of inadequate investigation, it

was only post-trial that his counsel learned Sweet and Martin were

not in the same cell in July 1991, when Sweet claimed Martin

confessed; and, in fact, were cell mates only much later, that

August-September, and then only for four days. He contends:

although Sweet’s account of his (Martin’s) confession – e.g.,

Martin’s pacing the floor of their cell at night on several

occasions – sounds rational had it occurred over the “about two

17
months” Sweet testified he and Martin shared a cell, it is not

compatible with a four-day time span. Martin maintains the state

district court overlooked the significance of Sweet’s testimony

that he was actually Martin’s cell mate when Martin confessed, only

to him, the details necessary to establish aggravated rape; and

Martin points out that, in its closing argument, the State used

Sweet’s “cell mate” status to persuade the jury Sweet’s account was

believable.3

Sweet and Martin were in the same cell only from 31 August to

4 September. The state district court found, however, they were in

the same “pod” from 9 July through 25 August 1991, with “access to

each other daily from about 5:00 a.m. until 10:00 or 11:00 p.m”.

In the light of their extensive opportunities to visit, and of

Sweet’s testimony that Martin “went into details on a different

occasion”, counsels’ failure to discover Sweet’s cell location

history does not translate into a reasonable probability that, but

for that failure, the verdict would have been different. As with

the first issue, the state district court did not unreasonably

apply federal law.

3
Martin contends that the state district court’s rejection of
this issue was, pursuant to § 2254(d)(2), “based on an unreasonable
determination of the facts....” We find this claim — which is not
included in the COA, see note 1, supra — without merit, in the
light of the fact that, after a two-day evidentiary hearing, that
court was fully aware of the time period in which Martin and Sweet
were in the same section, and when they were cell mates, as
discussed infra.

18
 3.

Martin maintains also he was prejudiced by the State’s failure

to disclose, and counsels’ failure to discover (and utilize for

impeachment), Sweet’s full criminal record, which included several

prior convictions (for theft and “unauthorized use of a movable”,

and for simple assault), as well as pending charges (Sweet

absconded with over $500 in parish funds given him for use as an

undercover narcotics informant, and threatened to kill the officer

who subsequently arrested him). In particular, Martin’s counsel

was unable to counter Sweet’s trial testimony that he had only one

criminal offense — for cocaine distribution.

The record indicates, and the state district court determined:

at a pre-trial hearing, the State provided Sweet’s criminal record

to Martin’s counsel. At a hearing on Martin’s new trial motion,

however, Martin’s counsel testified that the State provided only “a

typewritten list of some charges against one inmate” (unidentified

in the record).

The state district court noted: Sweet testified at trial in

his prison uniform; the jury was aware he had one prior felony

conviction and was currently in prison; and evidence of the then

pending charges, admissible only to show bias or prejudice, would

not have been admitted, because Sweet denied any promise by the

State of leniency or a plea bargain. As a result, it held that

Martin had not shown the requisite prejudice.

19
 For this issue, as with the first two, the state court

decision was not outside the standard of § 2254(d)(1), as defined

in Williams.

B.

As he did in district court, Martin asserts that,

cumulatively, the referenced suppressed or undiscovered impeachment

evidence translates into the requisite prejudice. He contends:

the only other evidence of aggravated rape, the scratches and other

physical injuries (bite mark on shoulder and tear under tongue)

observed by witnesses, could have been caused by his claimed fight

at the bar. (As noted, according to Martin’s cousin, Martin said

the injuries resulted from a fight there with a “country boy”.)

The State responds that, in addition to Sweet’s testimony,

other evidence supported finding aggravated rape: Martin’s

physical injuries; the removal of the victim’s clothing; and the

logical inference that, had the sexual relations been consensual,

Martin would have had no reason to kill her. The State

acknowledges “Sweet is the only State witness who testified that

[Martin] told him he raped the victim” (emphasis added); but, it

claims Williamson, Fontenot, and Rushing’s testimony also supported

aggravated rape because they “relayed the last words of [the

victim]” – that Martin “took advantage of her” (Williamson) or

raped her (Fontenot and Rushing).

20
 Martin replies that this contention by the State — the victim

“spoke through” Martin and then through the inmates — is hearsay

within hearsay, and cannot be used to establish aggravated rape,

because such evidence is too unreliable. In support, Martin cites

State v. Lubrano, 563 So. 2d 847, 849 (La. 1990) (“[w]here the

state’s case rests entirely on hearsay evidence ... counsel’s

failure to object does not necessarily foreclose inquiry into the

reliability of the result”) (emphasis in original); and State v.

Allien, 366 So. 2d 1308, 1312 (La. 1978) (reversing conviction

where “unobjected to hearsay” was “exclusive evidence of a

defendant’s guilt”). Martin contends: by taking the victim’s

alleged statements out of context, the State ignores the fact that

such testimony indicates, at most, the victim thought Martin had

taken advantage of her intoxication.

We find, consistent with Martin’s assertion at oral argument,

that this hearsay issue, even if raised previously, was apparently

not a basis for the decisions by the Louisiana Supreme Court on

direct appeal, or by the state district court or federal district

court on post-conviction review. Accordingly, we decline to

consider this (the State’s) contention.

To demonstrate the requisite prejudice as a result of the

claimed cumulative error, Martin points to the magistrate judge’s

statement, in his report and recommendation, that, under a de novo

review, he might have reached a different conclusion than did the

21
state district court. However, as discussed, this is not the

standard of review: “[A]n unreasonable application of federal law

is different from an incorrect application of federal law”.

Williams, 120 S. Ct. at 1522 (emphasis in original).

Concerning this cumulative-error-issue, and as noted for each

of the earlier issues, we conclude that the state district court

did not unreasonably apply federal law to the facts. Sweet’s

testimony, with the exception of that about the aggravated nature

of the rape, was corroborated by a number of other witnesses and

other evidence, and Sweet’s testimony concerning the aggravated

nature of the rape was, to some extent, corroborated by Martin’s

visible physical injuries shortly after the murder.

III.

For the foregoing reasons, and consistent with the result

reached in our first (vacated) opinion, the denial of habeas relief

is

AFFIRMED.

22