Grant v. Louisiana State Penitentiary

Filing 19

JUDGMENT ADOPTING 17 Report and Recommendations, denying 1 Petition for Writ of Habeas Corpus filed by John Ira Grant. Signed by Judge S Maurice Hicks on 8/14/12. (crt,McDonnell, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
JOHN IRA GRANT

CIVIL ACTION NO. 09-0436

VERSUS

JUDGE S. MAURICE HICKS, JR.

N. BURL CAIN, WARDEN

MAGISTRATE JUDGE HORNSBY
JUDGMENT

For the reasons assigned in the Report and Recommendation of the Magistrate
Judge previously filed herein, and having thoroughly reviewed the record, including the
written objections filed, and concurring with the findings of the Magistrate Judge under the
applicable law, the Court finds that Petitioner’s claims are without merit.
The Court takes especial notice of Petitioner’s claim for prosecutorial misconduct
regarding the prosecutor’s reference to Petitioner’s not testifying. A writ of habeas corpus
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. § 2254 (2012). Generally, a prosecutor’s comment on a defendant’s failure to
testify violates the Fifth Amendment right against self-incrimination. Griffin v. California, 85
S.Ct. 1229 (1965). The Fifth Circuit has addressed the standard as to when such
comments rise to a level that violate a defendant’s Fifth Amendment right. See United
States v. Blankenship, 746 F.2d 233 (5th Cir. 1984). This test, so-called the “alternative
test,” states
whether the ‘manifest intent’ was to comment on the defendant's silence or,
alternatively, whether the character of the remark was such that the jury

would ‘naturally and necessarily’ construe it as a comment on the defendant's
silence. Both the intent of the prosecutor and the character of the remarks
are determined by reviewing the context in which they occur, and the burden
of proving such intent is on the defendant.
Id., citing United States v. Shaw, 701 F.2d 367, 381-82 (5th Cir. 1983), cert. denied, 465
U.S. 1067 (1984).
Furthermore, the relevant question is not whether a jury possibly or even probably
would construe the argument as a comment on the defendant’s silence, but whether a jury
would necessarily construe it as such. Lee v. Michael, 2012 WL 1621369 (5th Cir. 2012).
Prosecutorial comments emphasizing the strength of the State’s case or those made
concerning the failure of the defense, as opposed to the defendant, to counter or explain
the State’s evidence does not infringe the Fifth Amendment privilege. See Montoya v.
Collins, 955 F.2d 279, 287 (5th Cir. 1992); Lee v. Michael, supra.
This Court has reviewed the prosecutor’s comments in question and has come to
the conclusion that, when examined in context, as a whole, they do not rise to the level
violative of the defendant’s Fifth Amendment right. As the Magistrate Judge points out, the
Prosecutor’s comments highlighted the strength of the State’s case and noted a failure of
defense put forth. None of the comments drew attention to the fact that Petitioner did not
testify.
Accordingly,
IT IS ORDERED that the petition for writ of habeas corpus is DENIED.
Rule 11 of the Rules Governing Section 2254 Proceedings for the U.S. District
Courts requires the district court to issue or deny a certificate of appealability when it enters
a final order adverse to the applicant. The court, after considering the record in this case
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and the standard set forth in 28 U.S.C. Section 2253, denies a certificate of appealability
because the applicant has not made a substantial showing of the denial of a constitutional
right.
THUS DONE AND SIGNED at Shreveport, Louisiana, this the 14th day of August,
2012.

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