Bobby Stearling Conn v. H. Gary Wells

16 F.3d 1218, 1994 U.S. App. LEXIS 8293, 1994 WL 28527
CourtCourt of Appeals for the Sixth Circuit
DecidedFebruary 1, 1994
Docket93-1313
StatusPublished

This text of 16 F.3d 1218 (Bobby Stearling Conn v. H. Gary Wells) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bobby Stearling Conn v. H. Gary Wells, 16 F.3d 1218, 1994 U.S. App. LEXIS 8293, 1994 WL 28527 (6th Cir. 1994).

Opinion

16 F.3d 1218
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Bobby Stearling CONN, Petitioner-Appellant,
v.
H. Gary WELLS, Respondent-Appellee.

No. 93-1313.

United States Court of Appeals, Sixth Circuit.

Feb. 1, 1994.

Before: MERRITT, Chief Judge, and NELSON and BOGGS, Circuit Judges.

PER CURIAM.

The petitioner, who was convicted in a Michigan trial court on a criminal sexual conduct charge, appeals from a judgment denying his application for a writ of habeas corpus. Throughout his state court appeals and again in this habeas action, he has asserted that his conviction was tainted by three errors of constitutional dimension: (1) improper references by the prosecutor in closing argument to "uncontroverted" evidence; (2) improper admission of hearsay statements that tended to identify the petitioner as the offender; and (3) ineffective assistance of counsel, based primarily on trial counsel's failure to advise the petitioner that he had a right to testify in his own defense. Finding nothing that warrants the exercise of federal habeas authority, we shall affirm the denial of the writ.

I.

Bobby Stearling Conn, the petitioner in this case, was charged with criminal sexual conduct in the first degree. At trial, evidence was presented to show that he performed sexual acts on the seven-year-old daughter of a woman with whom he was living at the time. The evidence consisted primarily of the testimony of the child and of two physicians who examined her. One of those physicians, Dr. Scheinfield, testified that during his exam (which occurred several months prior to the particular acts for which the petitioner was charged) the child identified her molester as a man living in her house. Other evidence identified the petitioner as the man who lived in the apartment occupied by the child and her mother.

Following his conviction, the petitioner pleaded guilty to an habitual offender charge based on a prior Michigan conviction for manslaughter. He was sentenced to imprisonment for 25 to 80 years. A motion for new trial was denied, and the Michigan Court of Appeals affirmed the conviction. People v. Conn, 171 Mich.App. 55, 429 N.W.2d 839 (1988).

Leave to appeal was granted by the Michigan Supreme Court. After an intervening remand for reconsideration and a second appeal, the Supreme Court allowed the conviction to stand. People v. Meeboer, 439 Mich. 310, 484 N.W.2d 621 (1992). The petitioner then filed the instant habeas petition pursuant to 28 U.S.C. Sec. 2254. The district court denied relief, and this appeal followed.

II.

The prosecutor stated three times during closing argument that the evidence was "uncontroverted" that the petitioner had committed the crime. On the first such occasion the prosecutor said this:

"Ladies and gentlemen, this case established through the testimony of [the child] exactly who committed that crime against her. The evidence in this case as to the Defendant Bobby Conn is uncontroverted."

In his rebuttal argument in closing the prosecutor further stated:

"The People have brought forward testimony in this case that has gone uncontroverted and have proven the Defendant guilty beyond a reasonable doubt.

* * *

Ladies and gentlemen, that child testified truthfully. If you find that the testimony that she testified to, the evidence uncontroverted is what happened, [sic] there is no reasonable doubt in your mind...."

Mr. Conn argues that these statements constituted forbidden commentary on his failure to testify, depriving him of the right against self-incrimination secured by the Fifth and Fourteenth Amendments. See Griffin v. California, 380 U.S. 609, 615 (1965).

The petitioner made no contemporaneous objection to any of the three statements. The Michigan Court of Appeals held that because of the failure to object, "appellate review is precluded unless the prejudicial effect of the alleged improper remarks by the prosecutor is so great that it could not have been cured by a timely cautionary instruction." Conn, 171 Mich.App. at 57, 429 N.W.2d at 841 (citing People v. Lasenby, 107 Mich.App. 462, 309 N.W.2d 572 (1981)). The court further said "we do not believe that the statements by the prosecutor, even if improper, were so prejudicial that they could not have been cured by a timely cautionary instruction. Accordingly, appellate review of this issue is precluded." Conn, 171 Mich.App. at 57-58, 429 N.W.2d at 841. This holding was not disturbed in the later proceedings before the Michigan Supreme Court.

Where the state court that has last spoken on an issue has rested its decision on an independent and adequate state procedural ground, the matter is immune from review in a federal habeas action absent a showing of "cause" for failure to conform to the procedure and resultant "prejudice." Wainwright v. Sykes, 433 U.S. 72, 87 (1977). As stated in Coleman v. Thompson, 111 S.Ct. 2546, 2565 (1991),

"In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice."

The petitioner argues that his is not a case of procedural default because the Michigan state courts necessarily made a federal constitutional determination in finding the remark not so prejudicial as to excuse the violation of the contemporaneous objection rule. We do not believe, however, that the petitioner is excused from the need to demonstrate cause and prejudice in this instance. In Paprocki v. Foltz, 869 F.2d 281 (6th Cir.1989), a federal habeas action, this court described the previous state court proceedings, in which the defendant had failed to object to the omission of certain jury instructions. On appeal, the Michigan appellate court affirmed the conviction based on the defendant's failure to object, and because affirmance would not result in manifest injustice. Id. at 284 (citing the Michigan Court of Appeals). In the federal habeas action, the petitioner argued, as does the petitioner in this case, that the Michigan Court of Appeals had erred in going beyond a procedural determination and made a substantive one by considering whether a manifest injustice would occur. We rejected his argument, explaining that:

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Related

Wainwright v. Sykes
433 U.S. 72 (Supreme Court, 1977)
Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
Idaho v. Wright
497 U.S. 805 (Supreme Court, 1990)
Coleman v. Thompson
501 U.S. 722 (Supreme Court, 1991)
Keeney v. Tamayo-Reyes
504 U.S. 1 (Supreme Court, 1992)
Albert Prentice Hearn v. Barry Mintzes
708 F.2d 1072 (Sixth Circuit, 1983)
Dendalee McBee v. William F. Grant
763 F.2d 811 (Sixth Circuit, 1985)
Terry D. Paprocki v. Dale Foltz
869 F.2d 281 (Sixth Circuit, 1989)
People v. Meeboer
484 N.W.2d 621 (Michigan Supreme Court, 1992)
People v. Conn
429 N.W.2d 839 (Michigan Court of Appeals, 1988)
People v. Lasenby
309 N.W.2d 572 (Michigan Court of Appeals, 1981)
Griffin v. California
380 U.S. 609 (Supreme Court, 1965)

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Bluebook (online)
16 F.3d 1218, 1994 U.S. App. LEXIS 8293, 1994 WL 28527, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bobby-stearling-conn-v-h-gary-wells-ca6-1994.