Tracey Godfrey v. Leroy Kirkegard

MEMORANDUM

Tracy Godfrey appeals the denial of his habeas corpus petition under 28 U.S.C. § 2254 . We have jurisdiction under 28 U.S.C. § 1291 and § 2253(a), and we affirm.

The prosecution’s cross-examination questions about Godfrey’s failure to come forward with his exculpatory story before trial violated his due process rights under Doyle v. Ohio, 426 U.S. 610 , 96 S.Ct. 2240 , 49 L.Ed.2d 91 (1976). However, the Montana Supreme Court’s rejection of his Doyle claim was not contrary to or an unreasonable application of clearly established federal law, see 28 U.S.C. § 2254 (d); Harrington v. Richter, — U.S.-, 131 S.Ct. 770, 785 , 178 L.Ed.2d 624 (2011), because the Doyle violation was harmless. The weighty evidence against Godfrey at trial was strong enough to preclude a determination that the error had a substantial effect in determining the jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619, 637-39 , 113 S.Ct. 1710 , 123 L.Ed.2d 353 (1993).

The Montana Supreme Court’s rejection of Godfrey’s claim that his lawyer was ineffective by not objecting to the prosecution’s questions about his silence was not an unreasonable application of Strickland v. Washington, 466 U.S. 668 , 104…