## FIL ED May25 , 20 12 LEO NARD GREEN, Clerk NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION

File Na me: 12a0539n.06 No. 09-3584 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT J AMES L . HEMPHI L L , Petitioner-Appellant,

v. STUART HUDSON, Warde n, Respondent-Appe llee. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE N ORTHERN DI STRI CT OF OH I O

BEF ORE: SI L ER and WHI TE, Circuit J udg es; REEVES, District J udg e. *

PER CURI AM. J ames L

. Hemphill, an Ohio prisoner proce eding throug h counsel, appea ls

a district court judgme nt dismiss ing his peti t i on for a writ of habea s corpus filed pursuant to 28 U.S.C. § 2254. For the r easons se t forth below, we aff irm the district court’s judg ment. A jury convicted H emphill of twenty -two counts of r ape w ith force specific ations, twenty

nine counts of g ross s ex u al imposit ion, twenty -nine counts of kidnapping with sexual motivation specific ations, and seven counts of rape , arising from Hemphill’s alleg ed sexual a buse of his stepd au gh t er . The trial court sentenced Hemphill to a tot al of life pl us seven y ear s of i mprisonme n t

. Hemphill appea led, arg uing, inter alia , that the offe nses wer e not char g ed with sufficie nt specific ity , th a t th e e v id e n c e w a s in sufficie nt to sustain his convictions, and that the prosec utor improperly a s k e d him to comment on the cre dibilit y of other w itnesses.

The Honora

ble Danny C. Reeve s, Uni t ed S t at es District J udg e for the Easter n District of * Kentucky , sitti ng by

desig nation.No. 09-3584

Hemphill v. Hudson The state co u rt o f appea ls aff irmed Hemphill’s “convic tion for one count of g ross sexual imposit ion, one count of rape of a child under thirteen with a further more clause alleg ing forc e, and

one count of rape with a further more clause alleg ing forc e,” vacated the rema ining convictions, and

rema nded the case for re- sentenc ing. State v. Hemphill , No. 85431, 2005 WL 1706995, at *11 (Ohio Ct. App. J uly 21, 2005). On rema nd, the trial court sentenc ed Hemphill to life in prison. Hemphill did not pursue an a

ppeal to the Ohio Supre me Court. Hemphill subsequently filed a timely application to reope n his direc t appea l under Ohio Rule of Appellate Procedur e 26(B ), claiming that his appellate counsel was ineffe ctive. The Ohio Court of Appea ls conclude d that Hemphill’s claims wer e barr ed by the doctrine of res judicata beca use they could have been raised throug h an appea l to the Ohio Supreme Court. State v. Hemphill , No. 85431, 2006 WL 2441647, at *1 (Ohio Ct. App. Aug

. 23, 2006). The court also revie wed the claims on the merits and conclude d that they did not war rant relief

. Id. at *2-3. The Ohio Supreme Court declined discretionar

y revie w. Hemphill then fi l ed for fede ral habea s relief , claiming that his appellate counsel was ineffe ctive for failing to raise various ineffe ctive-a ssistance-of -trial-c ounsel claims. A m ag istrate judge rec ommended dismiss ing Hemphill’s petition based on proce dural defa ult. Over Hemphill’s objections, the district court acc epted the mag istrate judge ’s repor t and rec ommendation and d i s missed the petition. This court g rante d a cer tificate of appea lability and appointed counsel t o repr esent He mphill on appeal. On appe al, Hemphill challeng es the district cour t’s proce dural de fault ruling , arg uing tha t, in light of State v. Davis , 894 N.E.2d 1221 (Ohio 2008), res judicata did not constitute an adequate and independe nt g round o n wh i ch to bar revie w of his claims. Be cause we can dispose of
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Hemphill v. Hudson Hemphill’s claims on the merits, howeve r, we decline to a ddress the district c ourt’s deter mination that Hemphill’s claims are proce durally defa ulted. See Mahdi v. Bagley , 522 F.3d 631, 635 (6th Cir. 2008). I nstead, we af

fi rm the district court’s judgme nt on the alterna tive basis that Hemphill’s claims do not warr ant fe dera l habea s relief

. To preva il on a claim of ineffe ctive assistance of counsel, a defe ndant must show that 1) his attorney made e rror s so serious that the attorne y was not func tioning as the counsel g uara nteed by the Six th Amendment, and 2) the attorney ’s defic ient perf ormanc e wa s p rejudicial, i.e., there is a

rea sonable probability that, but for the err ors, the result of the proce eding would have been differ ent. Strickland v. W

ashington , 466 U.S. 668, 687, 694 (1984). When the state court has re j ec t ed an ineffe ctive-a ssistance-of

-counse l claim on the m erits, fede ral habeas relief may be gra nted onl y if the s tate court unrea sonably applied thi s standard. Knowles v. Mirzayance , 556 U.S. 111, 122-23 (2009) (noting the “doubly defe rential judicial review” that applies to such claims). Review of counsel’s perf

ormanc e is highly deferential, and there is a presumption that counsel rende red adequate assistance and exercised rea sonable profe ssional judgme nt. Strickland , 466 U.S. at 690. Although a defe ndant is entitled to eff ective assistan ce o f counsel during his first appea l of rig ht, counsel need not raise ever y non-fr ivolous arg ument on appea l. Fautenberry v. Mitchell , 515 F.3d 614, 642 (6th Cir. 2008). “Only when ignor ed issues are clea rly strong er than those prese nted, will the presumption of eff

ective assistance of appellate counsel be overc ome.” Id. (citation and altera tions omi tted). Hemphill first arg ues that appellate counsel should have raised a claim that trial counsel was ineffe ctive for failing to object to alleg edly improper rema rks made by the prosec utor in his opening
statement and rebuttal arg ument. Hemphill contends the prosec utor improperly vouched for the

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Hemphill v. Hudson victim’s cre dibilit y and attacke d her mother’s cre dibilit y based on “per sonal opinion and subjective judgme nt.” All but one of the challeng ed rema rks wer e made d u ring the prosec utor’s rebuttal arg ument in response to defe nse counsel’s attack on the victim’s cre dibilit y in his closing arg ument. I t was not improper for the prosec utor to respond by arg uing that the victim should be believed. See United S t a t es v. Boyd , 640 F.3d 657, 671 (6th Cir. 2011) (“I t is not improper for a prosec utor to attempt to e x plain why , based on the fac ts, a witness’s testimony is honest afte r the same has been attacke d by the defe nse.” (interna l quotation marks and altera tion omitt ed ))

. Fu rther, the prosec utor’s statements did not imply specia l knowledg e of fac ts not befor e the jury

. See id. ; Davis

v. Booke r , 589 F.3d 302, 310 (6th Cir. 2009). Although the prosec utor did arg ue that the victim had

no rea son 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). T ri al counsel did make two

succe ssful objections during the prosec utor’s rebuttal arg ument, and the objection that counsel made
to a comment by the prosec utor on the witnesses’ cre dibilit y was overr uled. Und er these ci rc u mstances, it cannot be said that trial counsel acte d unrea sonably by not making addi t i o n al objections during the prosec utor’s rebuttal arg ument. See Lundgren v. Mitchell , 440 F.3d 754, 774- 75 (6th Cir. 2006). Be cause trial counsel p er formed adequately , Hemphill cannot show that his appellate attorney ’s failure to raise this claim constituted ineffe ctive as s i s t an ce. See Gree r v. Mitchell , 264 F.3d 663, 676 ( 6th Cir. 2001). Hemphill also arg ues that appellate counsel should have raised a claim that trial counsel was ineffe ctive for failing to object when the prosec ution knowing ly prese nted fa l s e t est imony

. Specifica lly , Hemphill points to testimony from two school empl o y ees that they rec eived a repor t from a sc hool security

office r that the victim was suicida l. T he victim, howe ver, testified that she

-4-No. 09-3584

Hemphill v. Hudson had used the knife to p ut a hole in her belt and acc identally broug ht 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 threa tened to kill herse lf beca use he g ot caug ht with the knife. Hemphill arg ues that, in light of the victim’s tes t imony , the prosec ution improperly elicited testimony that it knew to be false and then relied on this testimony during closing arg ument to asser t that the victim was suicidal and ma de a “ cry for he lp.” “[A] prosec utor may not delibera tely dece ive ‘a court and jurors by [presenting ] known false evi d en ce . ’” Rosencrantz v. Lafler , 568 F.3d 577, 583 (6th Cir. 2009) (quoting Giglio v. United States , 405 U.S. 150, 153 (1972))

. I n this c ase, the school employ ees acc urate ly testified that they

rec eived a

repor t that the victim was suicidal; neither te stified that the victim actually appea red or claimed to be suicidal. Acc ording ly , Hemphill cannot demonstrate that the prosec ution knowing ly prese nted false testimony

. See id

. And while the prosec utor did state during his rebuttal arg ument t h at t h e victim was “talking about suicide,” that rema rk was immediately followed by a refer ence to the victim’s test i m o n y t hat she had been car ry ing the knife to put a hole in her belt, not to kill herse lf. I n contra st to the case on which Hemphill relies, State v. Staten , 470 N.E.2d 249, 255 (Ohio Ct. App. 1984), the jury was not prese nted with misleading , uncorr ecte d testimony

. Consequently , trial counsel’s failure to object was not defic ient perf ormanc e, and appellate counsel’s failure to raise this claim did not constit ute ineff ective a ssistance. See G reer , 264 F.3d a t 663. Finally , Hemphill arg ues that appellate counsel should have raised a claim that trial counsel

was ineffe ctive for failing to object to alleg ed prosec utorial misconduct in in d i ct i n g h i m as a “sexually violent preda tor.” These specific ations, howeve r, wer e b ifurcated from the underlying char g es and wer e considere d by the trial court rathe r than the jury , and the trial court found Hemphill

-5-No. 09-3584

Hemphill v. Hudson not g uilty of t he specifications. Hemphill offe rs no support for his a rg ument that the j urors’ mere exposure to these specific ations was prejudicia l, and, as a result, he cannot demonstrate that his trial counsel wa s ineffe ctive for failing to object. F o r th e s e r e a s o n s , the state court’s reje ction of Hemphill’s ine f f e c ti v e - a s s is ta

n c e - o f

- a p p e ll a te counsel claims was not an unrea sonable application of fede ral law. Acc ordingl y , we aff irm the district court’s de nial of habe as re lief.

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