Home   Federal Cases   State Cases   News   Search   Cart   Log In 
 
Search 591,341 Cases and Articles on TJV!
 
Federal Case Categories







Abernathy v Hobbs

Case No. 13-1321 (C.A. 8, Apr. 9, 2014)

An Arkansas jury found Routy Abernathy guilty of raping his two minor nieces in violation of Ark. Code Ann. § 5-13-103. He received a sentence of sixty years of imprisonment. After exhausting his state court remedies, Abernathy filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court dismissed all four counts of the § 2254 petition, but granted a certificate of appealability on two counts. On appeal, Abernathy claims his counsel was ineffective by failing to object to an expert vouching for a witness and by stating, during opening statements, Abernathy would only be called to testify if the state had proven its case. We affirm the district court.

I



An Arkansas jury convicted Abernathy of raping his two minor nieces, S.D. and C.D., who were ten and eleven years old, respectively, at the time of the rapes. The girls are not Abernathy's biological nieces, but rather are the daughters of his wife's sister. Abernathy's conviction was based largely on the trial testimony of the two victims because there was no physical evidence and the victims had initially denied the rapes when interviewed by investigators.

Before trial, Abernathy filed a motion in limine asking to prohibit the admission of any testimony from police investigators, interrogators, and medical personnel expressing an opinion on the credibility of the testifying minors. The trial court ruled this type of testimony would not be allowed.
 

 

Judge(s): Kermit Bye
Jurisdiction: U.S. Court of Appeals, Eighth Circuit
Related Categories: Constitutional Law , Employment , Expert Witness , Government / Politics , Health Care
 
Circuit Court Judge(s)
Kermit Bye
Michael Melloy
Roger Wollman

 
Trial Court Judge(s)
Leon Holmes

 

CUSTOM EMAIL ALERTS!

With your FREE registration, you can select an unlimited number of Alert categories for daily, weekly or monthly deliveries of the Federal and State Cases most relevant
to you!

Click Here to sign up.

 



Click the maroon box above for a formatted PDF of the decision.
one incident when abernathy digitally penetrated her vagina. s.d. testified about truthfulness of m.s. the supreme court of arkansas held abernathy did not the supreme court of arkansas also did not render a decision "based on an personnel expressing an opinion on the credibility of the testifying minors. the trial v. delo, 62 f.3d 1024, 1035 (8th cir. 1995). regarding the lack of physical evidence of any rape of m.s., who provided testimony engaging in hindsight orsecond-guessing of trial counsel's strategic decisions." nave minnesota, 854 f.2d 299, 301 (8th cir. 1988) (holding, in a § 2254 case, given the (finding prejudice where defense attorney openly conceded in opening and closing clearly established federal law, as determined by the supreme court, or an (8th cir. 2013). a "adjudicated on the merits in state court proceedings" unless the adjudication: his penis. additionally, m.s., a prior victim, also testified pursuant to the pedophile taylor, 324 f.3d 583, 586 (8th cir. 2003). of criminal procedure 37, claiming ineffective assistance of counsel on thirteen instructed they were the "sole judges of the weight of the evidence and the credibility testimony of victims and court's instructions to jury that jury determine credibility of made the statement: "i have a duty to do my job and not allow [my client] to take the submitted: january 16, 2014 -2- unreasonable application of, clearly established federal law, as we affirm the district court. a: yes sir. statements, abernathy would only be called to testify if the state had proven its case. abernathy next claims counsel was ineffective based on a statement made dooley, 457 f.3d 731, 738 (8th cir. 2006) (holding strength of evidence and jury before trial, abernathy filed a motion in limine asking to prohibit the 02 (8th cir. 1999) (holding curative jury interactions meant trial was not unfair the jury that opening statements were not evidence, and abernathy failed to statements that government had met its burden of proof). accordingly, the court unreasonable determination of the facts." 28 u.s.c. § 2254(d). the supreme court a prior trial court order, solicited a vouching statement from green regarding the a: yes sir. victims' testimony through medical personnel and investigators. as part of this properly applied the governing legal rule from strickland. see williams v. taylor, court adopted the magistrate's recommendation and also granted a certificate of unreasonable applicable of federal law, because the supreme court of arkansas lawyer's deficient performance prejudiced the defendant. strickland v. washington, objective standard and 'determine whether, in light of all the circumstances, the meant to deflect any animosity the jury might have toward abernathy for not ___________________________ of witnesses," which the court considered a curative instruction. see engesser v. not sufficiently prejudicial to warrant post-conviction relief. see adesiji v. state of q: ms. green, when you talked to this girl, as a matter of fact, you when trial counsel failed to object to vouching of a minor witness by an expert believed her, did you not? penetrated her anus at a time abernathy had a romantic relationship with her mother the governing legal rule from strickland. see williams v. taylor, 529 u.s. 362, 413 and c.d., who were ten and eleven years old, respectively, at the time of the rapes. from the comment. cf. united states v. swanson, 943 f.2d 1070 (9th cir. 1991) a reasonable doubt. at the rule 37 hearing, abernathy's counsel testified his the decision of the supreme court of arkansas was not contrary to clearly abernathy appealed to the supreme court of arkansas, which affirmed the denial of v. despite counsel's failure to object to a psychologist's vouching of a sexual abuse defendant was not truthful during interview); oleson v. class, 164 f.3d 1096, 1101- instructions cured potential prejudice from a law enforcement officer opining again, the decision of the supreme court of arkansas was not contrary to -5- grounds. the court conducted an evidentiary hearing and denied the petition in full. time it rests its case." trial tr. 385. the girls are not abernathy's biological nieces, but rather are the daughters of his because the factual findings are well-supported by the record. thus, we affirm the taking aedpa and strickland together establishes a "doubly deferential" ____________ concerning its obligation to assess the credibility of witnesses, and counsel had -9- abernathy filed a timely habeas petition in federal district court, raising four victim's statement). additionally, the court noted abernathy's counsel properly abernathyseeksreliefbased on two claims of ineffectiveassistance of counsel. the stand unless the state had proven its case and abernathy subsequently took the 2012) (quoting cullen v. pinholster, 131 s.ct. 1388, 1410 (2011)). petitioner must show" there is a reasonable probability that, but for counsel's q: even though you found no evidence of physical injury? unreasonable determination of the facts." 28 u.s.c. § 2254(d). the supreme court ray hobbs, director, arkansas department of correction the supreme court of arkansas also did not render a decision "based on an filed: april 9, 2014 of arkansas found counsel's decision to make the statement was tactical in nature, exception to arkansas rule of evidence 404(b), which allows the state to present evidence of prior similar acts of pedophilia. m.s. testified abernathy digitally appealability on two grounds. this appeal followed, in which abernathy raises two expert vouching for the credibility of m.s. green testified in abernathy's defense defense strategy, abernathy called cheryl green, a physician assistant, who had seen ____________ ii court ruled this type of testimony would not be allowed. before wollman, bye, and melloy, circuit judges. deere, united states magistrate judge for the eastern district of arkansas. and, while thecourt questioned theprofessional judgment ofthestatement, ultimately thus, we affirm the district court's ruling that abernathy did not suffer from counsel in this regard. arkansas was an unreasonable application of clearly established federal law or demonstrate he was sufficiently prejudiced by counsel's failure to object to green's giving proper deference, we cannot say the decision of the supreme court of in violation of ark. code ann. § 5-13-103. he received a sentence of sixty years of united states court of appeals unprofessional errors, the result of the proceeding would have been different." district of arkansas, adopting the report and recommendation of the honorable beth for the first requirement of the strickland test, "the court must apply an giving proper deference, we cannot say the decision of the supreme court of representation fell below an objective standard of reasonableness; and (2) that the found abernathy had failed to demonstrate prejudice from the remark. -6- four incidents, where abernathy penetrated her vagina with a dildo, abernathy "indulge a strong presumption that counsel's conduct falls within the wide range of evidence. during cross-examination, the state had the following exchange with ______________________________ assistance,' strickland, 466 u.s. at 690, while at the same time refraining from witness, and (2) a claim abernathy suffered ineffective assistance of counsel when established federal law, as determined by the supreme court, or an unreasonable 466 u.s. 668, 688, 694 (1984); morelos v. united states, 709 f.3d 1246, 1249-50 identified acts or omissions were outside the wide range of professionally competent green. s.w. 3d at 483. professional assistance." united states v. staples, 410 f.3d 484, 488 (8th cir. 2005). -8- then filed a state habeas petition with the arkansas trial court under arkansas rule for the reasons stated, we affirm the denial of abernathy's habeas petition. challenged m.s.'s credibility during closing argument. the supreme court of the jury convicted abernathy of rape as to c.d. and s.d. abernathy timely state rested its case. abernathy argues that, because he took the stand in his own of arkansas examined the facts of the case and held abernathy failed to demonstrate for the eighth circuit in a habeas proceeding under 28 u.s.c. § 2254, this court reviews the district routy w. abernathy (1) resulted in a decision that was contrary to, or involved an iii the jury he would not call abernathy to the stand in his own defense if counsel did of a prior rape which had not been separately charged. the state, in contravention of statements were not meant to indicate the state had met its burden, but rather were district court's ruling that abernathy did not suffer from ineffective assistance of bye, circuit judge. for a writ of habeas corpus pursuant to 28 u.s.c. § 2254. the district court1 v. state, 2009 ark. app. 702, 2009 wl 3460705 (ark. ct. app. 2009). abernathy strickland, 466 u.s. at 694. because hindsight analysis is problematic, courts an arkansas juryfound routyabernathy guilty of raping his two minor nieces the sixth amendment to the united states constitution guarantees the right to prejudice sufficient to grant post-conviction relief. the court noted the jurors were the antiterrorism and effective death penalty act (aedpa), 28 u.s.c. resulted in a decision that was based on an unreasonable determination of the facts 529 u.s. 362, 413 (2000). determination of the facts in light of the evidence presented in the state then penetrated her vagina with his penis, and abernathy penetrated her vagina with an arkansas jury convicted abernathy of raping his two minor nieces, s.d. court's conclusions of law de novo and its factual findings for clear error. bobadilla standard of review in § 2254 cases. williams v. roper, 695 f.3d 825, 831 (8th cir. statements are not evidence, served to resolve anyconfusion which mayhave resulted lllllllllllllllllllll plaintiff - appellant testifying. the supreme court of arkansas held counsel's statement about for the eastern district of arkansas - pine bluff resulted in a decision that was based on an unreasonable determination of the facts. state prisoner applications in order to prevent federal habeas retrials and to ensure dismissed all four counts of the § 2254 petition, but granted a certificate of admission of any testimony from police investigators, interrogators, and medical appealed his convictions, which the arkansas court of appeals affirmed. abernathy defense, trial counsel effectively conceded the government had proven guilt beyond application of federal law, because the supreme court of arkansas properly applied post-conviction relief. abernathy v. state, 386 s.w.3d 477 (ark. 2012). abernathy's counsel did not object to the questions or answers. gideon v. wainwright, 372 u.s. 335 (1963). a defendant who claims to have been -4- effective assistance of counsel in criminal prosecutions. u.s. const. amend. vi; see concluded the trial court's instruction to the jury, which clarified that opening no. 13-1321 to establish the prejudice of the second prong of the strickland test, the deprived of effective assistance of counsel must show: (1) that his lawyer's claims ofineffectiveassistance of counsel. the case was referred to magistrate judge penetrated her vagina with his penis, abernathy penetrated her anus with a dildo and v. carlson, 575 f.3d 785, 790 (8th cir. 2009). arkansas reasonably applied strickland to find expert vouching of a prior victim was imprisonment. after exhausting his state court remedies, abernathy filed a petition trial counsel told the jury during opening statements he would not call abernathy to ____________ beth deere, who recommended the petition be denied and dismissed. the district by failing to object to an expert vouching for a witness and by stating, during opening 28 u.s.c. § 2254(d). aedpa modified a federal habeas court's role in reviewing the testimony at trial included testimony by both victims. c.d. testified about b grounds for relief: (1) a claim abernathy suffered ineffective assistance of counsel demonstrate prejudice from counsel's remarks. abernathy, 386 s.w. 3d at 483. witnesses,expert testimonyregarding general trustworthiness of child victims did not and examined m.s. green testified about the examination and the lack of physical stand if i don't believe the state has proven its case beyond a reasonable doubt at the testimony to meet his burden of proof, the trial court had instructed the jury abernathy's counsel called into question the reliability and truthfulness of the abernathy's testimony was tactical in nature, the trial court had properly instructed not believe the state had proven the case beyond a reasonable doubt at the time the the honorable j. leon holmes, united states district judge for the eastern1 make trial fundamentally unfair). effectivelychallenged m.s.'s credibilityduring his closing argument. abernathy,386 § 2254, limits the power of federal courts to grant habeas relief for any claim also powell v. alabama, 287 u.s. 45 (1932); johnson v. zerbst, 304 u.s. 458 (1938); -7- (2) resulted in a decision that was based on an unreasonable state-court convictions are given effect to the extent possible under law. colvin v. stand. arkansas was an unreasonable application of clearly established federal law or court proceeding. wife's sister. abernathy's conviction was based largely on the trial testimony of the lllllllllllllllllllll defendant - appellee during opening statements. defense counsel, during opening statements, informed abernathy claims counsel was ineffective in failing to object to a defense -3- determined by the supreme court of the united states; or thecaseproceededtotrial. duringhis opening statement, abernathy'scounsel denied the rapes when interviewed by investigators. appealabilityon two counts. on appeal,abernathyclaimshis counsel wasineffective abernathy testified in his own defense and denied the accusations in total. appeal from united states district court i (2000). two victims because there was no physical evidence and the victims had initially ___________________________ in oklahoma. ineffective assistance of counsel in this regard. ____________


All Content © 2007-2012 The Judicial View, L.L.C. All Right Reserved.
About The Judicial View ®  | Privacy Policy   |  Terms of Use   |  Contact Us  |  Advertise