FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 2, 2012

JOHN LEY

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

 FOR THE ELEVENTH CIRCUIT

 ________________________

 No. 11-12053 

Non-Argument Calendar

 ________________________

 D.C. Docket No. 1:07-cv-23016-JAL

ANTHONY B. WILSON,

Petitioner-Appellant,

versus

DEPARTMENT OF CORRECTIONS, 

Respondent-Appellee.

________________________

 Appeal from the United States District Court

 for the Southern District of Florida

 ________________________

 (July 2, 2012)

Before TJOFALT, EDMONDSON and FAY, Circuit Judges.

PER CURIAM:
In Wilson v. State, the Florida District Court of Appeal affirmed Anthony

Wilson’s convictions for “attempted first degree murder and burglary with a

battery while armed with a knife, in connection with the stabbing of Antron Pope

inside Pope’s home.” 880 So.2d 1287 (Fla. 3d D.C.A. 2004). After exhausting his

state remedies, Wilson petitioned the U.S. District Court for the Southern District

of Florida for a writ of habeas corpus. 28 U.S.C. § 2254. The district court denied

relief. Wilson appealed, and we issued a certificate of appealability on one issue,

to-wit:

Whether the district court erroneously applied the deference standard

under 28 U.S.C. § 2254(d) to Wilson’s claim, and, if so, whether the

district court erred in finding that the prosecutor’s questions and

comments, regarding whether Wilson believed that the other

witnesses were lying and conspiring against him, did not constitute a

violation of Wilson’s constitutional rights?

As the district court stated in denying habeas relief, the “claim” Wilson presented

was

whether Wilson was denied a fundamentally fair trial due to alleged

prosecutorial misconduct during cross-examination and closing

arguments. Wilson allege[d] that the prosecutor was permitted to ask

him . . . whether the prosecution’s witnesses were lied during their

testimony and were conspiring against him. The prosecutor later

made reference to Wilson’s belief in the conspiracy against him

during summation. 

Order, March 30. 2011, at 1-2. The relevant portion of the challenged cross2
examination was this:

Q: Now you sat there the whole time and listened to what

everybody said?

A: Yes.

Q: You heard what Kia said. That you were harassing Shirley, 

you were were coming by constantly and wouldn’t go away?

A: I heard everything.

Q: You heard what Dakeidra said, you were coming to the house 

and you were harassing Shirley and wanted Shirley back. You

heard that?

A: Yes.

Q: You heard Antron’s testimony, yes?

A: Yes.

Q: And you heard today, Shirley’s own mother come in here and 

testify about how you were threatening her daughter and how you 

were threatening Antron. But they’re all lying?

DEFENSE COUNSEL: Objection. He has to be here during trial.

THE COURT: No speaking objection. Objection overruled. Talk

about it sidebar. Continue.

DEFENSE COUNSEL: May I have a sidebar? It is improper to ask

one witness—

THE COURT: Stop, stop. That is a speaking objection.

Q: Do you believe that all these witnesses are conspiring against

you?

A: Well—

Q: That’s what you think, this is a big conspiracy? You’ve got the

officer. You’ve got Shirley’s mother. You’ve got Shirley’s friend. 

You got Antron, the exboyfriend. You got everybody coming in 

here saying the same thing, but it is because they are conspiring 

against you?

DEFENSE COUNSEL: Objection.

That is argumentative.

THE COURT: Overruled.

Q: Yes or no, are they conspiring against you?

A: Yes.

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Id. at 2. And the relevant portion of the challenged jury argument was:

You have heard from a lot of witnesses. [Wilson] yesterday tells you

that its a conspiracy. Now, we’ve heard a lot of preposterous things,

but that is the ultimate. To say that Shirley’s mother and Antron

Pope, his family, his own friend, Dakeidra and Kia all came in here to

conspire against him, because of what? Because it is not true. There

is no conspiracy. The only thing we’re trying to do is achieve the

truth, get to justice, ladies and gentlemen.

Id. at 3. 

We review de novo the district court’s decision rejecting Wilson’s due

process claim. See 28 U.S.C. § 2254(d), as amended by the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”). Pursuant to the AEDPA, a

district court must deny habeas relief to a state prisoner on claims that were

previously adjudicated on the merits in state court, unless the state court’s

adjudication: “(1) . . . 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) . . . 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(d). In

this case, the questions we must decide are whether the Florida District Court of

Appeal’s decision rejecting the claim the district court set out above “was contrary

to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.” 

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The district court of appeal found that the prosecutor’s questions on crossexamination “were improper” under Florida law, as announced in Whitfield v.

State, 549 So.2d 1201 (Fla. 3d DCA 1989), but that the conduct constituted

“harmless error beyond a reasonable doubt.” Wilson, 880 So.2d at 1289. The

court did not pass on the propriety of the prosecutor’s “conspiracy” comments to

the jury because, in the court’s reading of the trial transcript, the “conspiracy of

witnesses against Wilson was not mentioned during the State’s closing argument.” 

Id. The court was mistaken; as indicated in the district court’s order at 3, the

conspiracy was mentioned. 

Neither the district court of appeal’s decision affirming Wilson’s conviction

nor the district court’s order denying habeas relief cited a Supreme Court decision

holding, or even intimating, that asking a defendant on cross-examination whether

a prosecution witness lied constitutes a denial of due process of law. The same

goes for the prosecutor’s conspiracy references closing argument; neither Wilson

nor the district court in its Order cites a Supreme Court decision anywhere in

point. Nonetheless, we will assume for sake of argument that the Supreme Court

would treat the prosecutorial conduct complained of as presenting prima facie a

due process claim. Further, because the district court of appeal did not pass on the

prosecutor’s “conspiracy” comments in closing argument, we consider the

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propriety of the comments de novo. And doing so, we ask whether the trial court

error—in overruling defense counsel’s objection to the prosecutor’s questioning

on cross-examination and (we assume) to the prosecutor’s “conspiracy” reference

in closing argument—“‘had a substantial and injurious effect or influence in

determining the jury’s verdict.’” Brecht v. Abrahamson, 507 U.S. 617, 637, 113

S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States,

328 U.S. 750, 766, 66 S.Ct. 1239, 1253, 90 L. Ed.2d 1557 (1946). 

We conclude that the error was harmless. As the district court of appeal

remarked, “[t]he questions [put to Wilson on cross-examination] cannot possibly

vitiate the entire eight-day trial, and they did not change the physical evidence of

multiple stab wounds suffered by Pope. 880 So.2d at 1289. The same is true with

respect to the prosecutor’s comments in closing argument.

Accordingly, the district court’s decision denying Wilson habeas corpus

relief is, 

AFFIRMED.

 

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