082147P.pdf   04/23/2009  Robert Hunt, Jr.  v.  Robert Houston
   U.S. Court of Appeals Case No:  08-2147
   District of Nebraska - Lincoln   
   [PUBLISHED] [Wollman, Author, with Bye and Riley, Circuit Judges]
   Prisoner case - habeas. District court erred in its handling of a claim
   related to prosecutor's misconduct, as the Nebraska Supreme Court
   determined the claim was defaulted because it had not been raised in
   Hunt's first habeas; in order to overcome a state procedural default
   finding, Hunt must show either that the ruling resulted from an exorbitant
   application of an otherwise sound rule, which he had not, or cause and
   prejudice; Hunt had knowledge of all of the facts surrounding his claim
   of prosecutorial misconduct, and he could not establish cause for his
   failure to include it in his first post-conviction filings; nor could Hunt
   establish prejudice because the statements related to the misconduct were
   not admitted at trial (the prosecutor removed information that Hunt had
   requested counsel at the end of his first statement, thereby making the
   admissibility of his second statement problematical; however, the state
   told the court and Hunt before trial that it would not introduce the second
   statement and it did not use the statement at trial); trial counsel's failure
   to adequately investigate the conduct and report it to ethics authorities did
   not result in any prejudice; the possibility of prejudice is further undercut
   by the strength of the state's case, and Hunt has failed to show that there
   is a reasonable probability that the outcome of his trial would have been
   different; claim that his trial counsel's closing arguments amounted to a
   complete denial of Hunt's right to counsel was properly rejected by the
   district court; claim that the state court improperly admitted evidence as a
   result of the second statement was properly rejected; grant of habeas
   relief is reversed, and the matter is remanded with directions to dismiss
   the petition.