James Hemphill v. Stuart Hudson

Filing

Per Curiam OPINION filed : AFFIRMED, decision not for publication pursuant to local rule 206. Eugene E. Siler , Jr., Circuit Judge; Helene N. White, Circuit Judge and Danny C. Reeves, U.S. District Judge.*The file stamp has now been applied to this opinion.--[Edited 05/25/2012 by CL]

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0539n.06

UNITED STATES COURT OF APPEALS Q12
FOR THE SIXTH CIRCUIT
LEONARD GREEN, clerkj
JAMES L. HEMPHILL,
Petitioner-Appellant,
v.
STUART HUDSON, Warden,
Respondent-Appellee.

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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE NORTHERN
DISTRICT OF OHIO

BEFORE: SILER and WHITE, Circuit Judges; REEVES, District Judge.*

PER CURIAM. James L. Hemphill, an Ohio prisoner proceeding through counsel, appeals
a district court judgment dismissing his petition for a writ of habeas corpus filed pursuant to 28
U.S.C.

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2254. For the reasons set forth below, we affirm the district court’s judgment.

A jury convicted Hemphill of twenty-two counts of rape with force specifications, twentynine counts of gross sexual imposition, twenty-nine counts of kidnapping with sexual motivation
specifications, and seven counts of rape, arising from Hemphill’s alleged sexual abuse of his step
daughter. The trial court sentenced Hemphill to a total of life plus seven years of imprisonment.
Hemphill appealed, arguing, inter alia, that the offenses were not charged with sufficient specificity,
that the evidence was insufficient to sustain his convictions, and that the prosecutor improperly asked
him to comment on the credibility of other witnesses.

*The Honorable Danny C. Reeves, United States District Judge for the Eastern District of
Kentucky, sitting by designation.

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The state court of appeals affirmed Hemphill’s “conviction for one count of gross sexual
imposition, one count of rape of a child under thirteen with a furthermore clause alleging force, and
one count of rape with a furthermore clause alleging force,” vacated the remaining convictions, and
remanded the case for re-sentencing. State v. Heniphill, No. 85431,2005 WL 1706995, at *11 (Ohio
Ct. App. July 21, 2005). On remand, the trial court sentenced Hemphill to life in prison. Hemphill
did not pursue an appeal to the Ohio Supreme Court.
Hemphill subsequently filed a timely application to reopen his direct appeal under Ohio Rule
of Appellate Procedure 26(B), claiming that his appellate counsel was ineffective. The Ohio Court
ofAppeals concluded that Hemphill’ s claims were barred by the doctrine of res judicata because they
could have been raised through an appeal to the Ohio Supreme Court. State v. Hemphill, No. 85431,
2006 WL 2441647, at * 1 (Ohio Ct. App. Aug. 23, 2006). The court also reviewed the claims on the
merits and concluded that they did not warrant relief Id. at *23. The Ohio Supreme Court declined
discretionary review.
Hemphill then filed for federal habeas relief, claiming that his appellate counsel was
ineffective for failing to raise various ineffective-assistance-of-trial-counsel claims. A magistrate
judge recommended dismissing Hemphill’s petition based on procedural default. Over Hemphill’s
objections, the district court accepted the magistrate judge’s report and recommendation and
dismissed the petition. This court granted a certificate of appealability and appointed counsel to
represent Hemphill on appeal.
On appeal, Hemphill challenges the district court’s procedural default ruling, arguing that,
in light of State v. Davis, 894 N.E.2d 1221 (Ohio 2008), resjudicata did not constitute an adequate
and independent ground on which to bar review of his claims.
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Because we can dispose of

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Hemphill’s claims on the merits, however, we decline to address the district court’s determination
that Hemphill’s claims are procedurally defaulted. See Mahdi v. Bagley, 522 F.3d 631, 635 (6th Cir.
2008). Instead, we affirm the district court’s judgment on the alternative basis that Hemphill’s
claims do not warrant federal habeas relief.
To prevail on a claim of ineffective assistance of counsel, a defendant must show that 1) his
attorney made errors so serious that the attorney was not functioning as the counsel guaranteed by
the Sixth Amendment, and 2) the attorney’s deficient performance was prejudicial, i.e., there is a
reasonable probability that, but for the errors, the result ofthe proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). When the state court has rejected an

ineffective-assistance-of-counsel claim on the merits, federal habeas relief may be granted only if
the state court unreasonably applied this standard. Knowles v. Mirzayance, 556 U.S. 111, 122-23
(2009) (noting the “doubly deferential judicial review” that applies to suCh claims). Review of
counsel’s performance is highly deferential, and there is a presumption that counsel rendered
adequate assistance and exercised reasonable professional judgment. Strickland, 466 U.S. at 690.
Although a defendant is entitled to effective assistance of counsel during his first appeal of right,
counsel need not raise every non-frivolous argument on appeal. Fautenberry v. Mitchell, 515 F.3d
614, 642 (6th Cir. 2008). “Only when ignored issues are clearly stronger than those presented, will
the presumption of effective assistance of appellate counsel be overcome.” Id. (citation and
alterations omitted).
Hemphill first argues that appellate counsel should have raised a claim that trial counsel was
ineffective for failing to object to allegedly improper remarks made by the prosecutor in his opening
statement and rebuttal argument. Hemphill contends the prosecutor improperly vouched for the
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victim’s credibility and attacked her mother’ s credibility based on “personal opinion and subjective
judgment.” All but one of the challenged remarks were made during the prosecutor’s rebuttal
argument in response to defense counsel’s attack on the victim’s credibility in his closing argument.
It was not improper for the prosecutor to respond by arguing that the victim should be believed. See
United States v. Boyd, 640 F.3d 657, 671 (6th Cir. 2011) (“It is not improper for a prosecutor to
attempt to explain why, based on the facts, a witness’s testimony is honest after the same has been
attacked by the defense.” (internal quotation marks and alteration omitted)).

Further, the

prosecutor’s statements did not imply special knowledge of facts not before the jury. See id.; Davis
v. Booker, 589 F.3d 302, 310 (6th Cir. 2009). Although the prosecutor did argue that the victim had
no reason to lie, he did not expressly state that her testimony was truthful and that Hemphill’s was
not. Cf Hodge v. Hurley, 426 F.3d 368, 377-78 (6th Cir. 2005). Trial counsel did make two
successful objections during the prosecutor’s rebuttal argument, and the objection that counsel made
to a comment by the prosecutor on the witnesses’ credibility was overruled.

Under these

circumstances, it cannot be said that trial counsel acted unreasonably by not making additional
objections during the prosecutor’s rebuttal argument. See Lundgren v. Mitchell, 440 F.3d 754, 77475 (6th Cir. 2006). Because trial counsel performed adequately, Hemphill cannot show that his
appellate attorney’s failure to raise this claim constituted ineffective assistance. See Greer v.
Mitchell, 264 F.3d 663, 676 (6th Cir. 2001).
Hemphill also argues that appellate counsel should have raised a claim that trial counsel was
ineffective for failing to object when the prosecution knowingly presented false testimony.
Specifically, Hemphill points to testimony from two school employees that they received a report
from a school security officer that the victim was suicidal. The victim, however, testified that she
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had used the knife to put a hole in her belt and accidentally brought it to school, and she denied
telling the boy who took the knife from her what she intended to do with it. She testified that the boy
told the authorities that she had threatened to kill herself because he got caught with the knife.
Hemphill argues that, in light of the victim’s testimony, the prosecution improperly elicited
testimony that it knew to be false and then relied on this testimony during closing argument to assert
that the victim was suicidal and made a “cry for help.”
“[A] prosecutor may not deliberately deceive ‘a court and jurors by [presenting] known false
evidence.” Rosencrantz v. Lafler, 568 F.3d 577, 583 (6th Cir. 2009) (quoting Giglio v. United
States, 405 U.S. 150, 153 (1972)). In this case, the school employees accurately testified that they
received a report that the victim was suicidal; neither testified that the victim actually appeared or
claimed to be suicidal. Accordingly, Hemphill cannot demonstrate that the prosecution knowingly
presented false testimony. See id. And while the prosecutor did state during his rebuttal argument
that the victim was “talking about suicide,” that remark was immediately followed by a reference
to the victim’s testimony that she had been carrying the knife to put a hole in her belt, not to kill
herself. In contrast to the case on which Hemphill relies, State v. Staten, 470 N.E.2d 249, 255 (Ohio
Ct. App. 1984), the jury was not presented with misleading, uncorrected testimony. Consequently,
trial counsel’s failure to object was not deficient performance, and appellate counsel’s failure to raise
this claim did not constitute ineffective assistance. See Greer, 264 F.3d at 663.
Finally, Hemphill argues that appellate counsel should have raised a claim that trial counsel
was ineffective for failing to object to alleged prosecutorial misconduct in indicting him as a
“sexually violent predator.” These specifications, however, were bifurcated from the underlying
charges and were considered by the trial court rather than the jury, and the trial court found Hemphill
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not guilty of the specifications. Hemphill offers no support for his argument that the jurors’ mere
exposure to these specifications was prejudicial, and, as a result, he cannot demonstrate that his trial
counsel was ineffective for failing to object.
For these reasons, the state court’s rejection of Hemphill s ineffective-assistance- of-appellate
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counsel claims was not an unreasonable application of federal law. Accordingly, we affirm the
district court’s denial of habeas relief.

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