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Abernathy v. Hobbs

United States Court of Appeals, Eighth Circuit

April 9, 2014

Routy W. Abernathy, Plaintiff - Appellant
v.
Ray Hobbs, Director, Arkansas Department of Correction, Defendant - Appellee

Submitted, January 16, 2014

Appeal from United States District Court for the Eastern District of Arkansas - Pine Bluff.

Routy W. Abernathy, Plaintiff - Appellant, Pro se, Grady, AR.

For Routy W. Abernathy, Plaintiff - Appellant: Garry J. Corrothers, Little Rock, AR.

For Ray Hobbs, Director, Arkansas Department of Correction, Defendant - Appellee: Kathryn Henry, Attorney General's Office, Little Rock, AR.

Before WOLLMAN, BYE, and MELLOY, Circuit Judges.

OPINION

Page 814

BYE, Circuit Judge.

An Arkansas jury found Routy Abernathy guilty of raping his two minor nieces in violation of Ark. Code Ann. § 5-14-103. 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[1] 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

Page 815

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.

The case proceeded to trial. During his opening statement, Abernathy's counsel made the statement: " I have a duty to do my job and not allow [my client] to take the stand if I don't believe the State has proven its case beyond a reasonable doubt at the time it rests its case." Trial Tr. 385.

The testimony at trial included testimony by both victims. C.D. testified about one incident when Abernathy digitally penetrated her vagina. S.D. testified about four incidents, where Abernathy penetrated her vagina with a dildo, Abernathy penetrated her vagina with his penis, Abernathy penetrated her anus with a dildo and then penetrated her vagina with his penis, and Abernathy penetrated her vagina with his penis. Additionally, M.S., a prior victim, also testified pursuant to the pedophile exception to Arkansas Rule of Evidence 404(b), which allows the state to present evidence of prior ...


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