Case Information
*1 Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge: [*]
Before the court is an appeal of the denial of Newton Anderson’s petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254, in which Anderson challenges his capital murder conviction and death sentence. After denying relief, and although the eleven raised issues were easily, and properly, disposed of by the district court, it entered a certificate of appealability with respect to *2 each of them. We AFFIRM the district court’s denial of the petition for writ of habeas corpus.
I. FACTS AND PROCEEDINGS
Frank and Bertha Cobb were murdered on March 4, 1999. Two witnesses saw a man walking along the highway near the Cobbs’ house in New Harmony, Texas at approximately 2:30 p.m. on that date. A neighbor later that day passed the Cobbs’ maroon Cadillac on the highway. When the neighbor arrived at home, she observed that the Cobbs’ house was on fire. A volunteer firefighter who had passed the Cobbs’ Cadillac en route to the Cobb house later identified Newton Anderson as the driver of the car. Firefighters discovered the bodies of Frank and Bertha Cobb in the house. The hands of both victims had been bound with electrical tape, and they had both been shot in the head. The evidence also indicated that Bertha Cobb had been sexually assaulted.
At trial, a DNA expert testified for the prosecution that the DNA from the semen discovered in Bertha Cobb’s body matched Anderson’s DNA. In addition, Anderson’s sister testified at trial that on March 6, 1999, Anderson confessed to involvement in the incident during a phone conversation with her. Anderson’s step-nephew, Michael Smith, also testified that on the day of the killings Anderson drove to his residence in a maroon Cadillac and asked him for help unloading property. Smith assisted Anderson in unloading the items into a trailer that Anderson, his sister, and her husband shared. Police later found several items in the trailer that had belonged to the Cobbs.
Anderson was indicted, tried, and convicted in Texas state court of killing two persons “during the same criminal transaction.” See T EX . P ENAL C ODE § 19.03(a)(7)(A). At trial he pleaded not guilty, did not testify, and was convicted by a jury. Anderson was sentenced to death, and his conviction and sentence were affirmed. Anderson’s state petition for post-conviction relief was denied. He filed a petition for writ of habeas corpus in federal district court. The district court *3 denied this petition, and Anderson timely appealed. The district court granted a certificate of appealability on eleven issues.
Prior to his conviction for the murders of Frank and Bertha Cobb, Anderson had an extensive criminal history. He had been incarcerated for family violence assault and for four burglaries. He had also been arrested as a juvenile in California for a burglary. Anderson’s ex-wife testified that he physically abused her and that they had both used drugs during their marriage. Testimony was also presented indicating that Anderson, while awaiting trial, had implements that could be used in an escape attempt and had, on February 9, 2000, escaped from custody temporarily and exited the courthouse before being apprehended.
II. STANDARD OF REVIEW
Because this appeal arises from a federal habeas petition filed in 2004, after the effective date
of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), the AEDPA applies to his claims.
See Neal v. Puckett
,
We review the district court’s “conclusions of law de novo, applying the same standard of
review to the state court’s decision as the district court.”
Henderson v. Quarterman
,
III. DISCUSSION
A. Ineffective assistance of counsel at trial
Anderson argues that his Sixth Amendment right to counsel was violated by virtue of his attorneys’ ineffective assistance at trial. Specifically, Anderson alleges that his counsel was ineffective by permitting an expert to testify on Anderson’s behalf during the punishment phase who stated that Anderson would likely be a continuing threat to society if he were not in confinement. Dr. Quijano, a psychologist, testified that testing had confirmed that Anderson was dangerous but that he believed that the security in the Texas prison system would be able to prevent Anderson from committing violent acts in prison.
The Sixth Amendment right to counsel entitles the defendant to “a reasonably competent
attorney, whose advice is within the range of competence demanded of attorneys in criminal cases.”
United States v. Cronic
,
Anderson argues that this was not a reasonable trial strategyand that, therefore, his conviction must be reversed. Anderson’s trial counsel explained at the hearing on the state writ of habeas corpus that he had no other viable evidence for mitigation and that, therefore, his strategy was to convince one of the jurors, a Catholic lay person, that since Anderson could be controlled in prison she should vote against giving him the death penalty. In light of the evidence presented in the state court proceeding, we hold that this decision by the state court was not based on an unreasonable determination of the facts or an unreasonable application of the law. See 28 U.S.C. § 2254(d). We *6 reject this ground for relief.
B. Admission of crime scene photographs
Anderson next argues that the trial court’s admission of certain gruesome crime scene
photographs constituted a violation of due process and requires reversal of his conviction. In general,
state law matters are not proper grounds for habeas corpus relief. “[I]t is not the province of a
federal habeas court to reexamine state-court determinations on state-law questions. In conducting
habeas review, a federal court is limited to deciding whether a conviction violated the Constitution,
laws, or treaties of the United States.”
Estelle v. McGuire
,
In evaluating the constitutionality of such evidence, this court has held that where the graphic
crime scene photographs “serve[] to illustrate and make more understandable the officers’ testimony
which described the [scene] and its condition, and the location and condition of the deceased’s body
and the nature and extent of the injuries to the deceased,” they do not offend due process.
Woods
v. Johnson
,
The photographs are disturbing and bloody depictions of the victims in a burned house. In
order to meet the threshold of a
constitutional
violation by the admission of this evidence, Anderson
must show that the evidence was “so unduly prejudicial that it render[ed] the trial fundamentally
unfair.”
Payne v. Tennessee
,
C. Improper argument by the prosecution
Anderson argues that the prosecutor committed reversible error during his argument at the guilt/innocence phase of the trial.
The prosecution made the following remarks:
Before I get into that, do you think that in this case that the defendant – the Defense and the attorneys for the defendant would ever have admitted that he was even in the house in the first place if his – the Cobbs’ property had not been found in his trailer? Do you think they would have come in and told you that? Do you think the Defense would have come in here and admitted that the defendant sexually assaulted Bertha Cobb if his semen had not been in her vaginal cavity? There’s no honor in what they did. They did it—“
to which the defense objected, the court sustained the objection and instructed the jury to disregard the statement. The defense moved for a mistrial, which the court denied.
The prosecutor also stated in regards to whether another person could have committed the crime: “Who is this other person? Does anyone know? We don’t. And the Defense never once—” at which point the defense objected. The court sustained the objection and instructed the jury to disregard the last portion of the prosecutor’s statement. The defense then moved for a mistrial, and the court denied the motion.
Later in the argument, the prosecutor stated: “But I’ll tell you this: Don’t think for a minute *8 that the State of Texas believes that there is another person.” Again the defense objected, the court sustained the objection and instructed the jury to disregard the statement, the defense moved for a mistrial, and the court denied the motion.
Anderson argues that these statements by the prosecutor amounted to constitutionally-
impermissible “vouching” that necessitates a new trial.
United States v. Murrah
,
The district court agreed with Anderson that these statements were improper, stating that “the
prosecutor’s comment was a bizarre and manifestly improper accusation that the Defendant and his
counsel would have chosen to exercise his right to remain silent if they could have, and only waived
it because of the evidence presented by the prosecution.” The district court, however, found that in
light of the other evidence presented against Anderson, the statements did not have a “substantial and
injurious effect or influence in determinating the jury’s verdict.”
Brecht v. Abrahamson
, 507 U.S.
619, 623 (1993) (internal quotation omitted). We agree. While these statements by the prosecutor
were inappropriate, the other evidence against the defendant was overwhelming. In addition, the
court gave a curative instruction after each of the sustained objections to the improper statements.
Ward v. Dretke
,
D. Use of undefined and vague terms in the special sentencing issues
Anderson argues that the special issues submitted to the jury during the punishment phase contained undefined and vague terms so as to violate the Eighth Amendment. The special issues submitted to the jury are mandated by T EX . C ODE C RIM . P. art. 37.071, § 2(b)(1)–(2) & (e). Anderson points to various words used in this special issues, namely “probability,” “criminal acts of violence,” and “continuing threat to society,” in arguing that these terms are unconstitutionally vague.
In Zant v. Stevens , the Supreme Court noted that statutory aggravating factors “circumscribe the class of persons eligible for the death penalty.” 462 U.S. 862, 878 (1983). In Godfrey v. Georgia, the Supreme Court reversed a death sentence on the basis that the aggravating factor used was unconstitutionally vague. 446 U.S. 420, 428, 433 (1980) (holding that “outrageously or wantonly vile, horrible and inhuman” was too vague of a sentencing factor).
Anderson acknowledges “that this Court has rejected similar complaints regarding the
vagueness of these terms” and that he “wishes to preserve this error for further review in the event
relief is not otherwise granted herein.” A review of Fifth Circuit caselaw confirms that the court has
consistently rejected similar complaints regarding the alleged vagueness of the same terms of which
Anderson complains, and also of similar terms.
See James v. Collins
,
E. Trial court’s failure to inform the jury of the effect of a non-unanimous verdict as to
any of the special sentencing issues
Anderson also argues that the trial court’s failure to inform the jury properly about the effect
of a non-unanimous verdict on the special sentencing issues constituted a violation of the Eighth
Amendment. In other words, Anderson argues it was unconstitutional that the court did not instruct
the jury that if they fail to reach a verdict on punishment that the defendant would have received a
sentence of life. Anderson relies on
Mills v. Maryland
,
This court, however, has previously held that the situation about which Anderson complains
is not sufficiently similar to
Mills
and
McKoy
to permit relief. Anderson acknowledges this in his
brief, stating that “the current expression of this Circuit’s law is that
Mills
is not applicable to the
capital sentencing scheme in Texas. He wishes to preserve this error for further review in the event
relief is not otherwise granted herein.” In
Hughes
, the court stated that “[u]nlike the systems
discussed in
Mills
and
McKoy
, a single juror in Texas cannot preclude the remainder of the jury from
considering mitigating evidence.”
F. Failure to require the statutory aggravating factors to be alleged in the indictment and
requiring Anderson to bear the burden of proof on mitigation
Anderson alleges that the trial court’s failure to require that the statutory aggravating factors
be alleged in the indictment was a violation of due process. Anderson argues that under
Apprendi
*11
v. New Jersey
,
Anderson further argues that he was improperly required to bear the burden of proof on the
mitigation special sentencing issue in violation of due process. This argument also does not implicate
Apprendi
. The absence of mitigating circumstances is not “the functional equivalent of an element
of a greater offense.”
Apprendi
,
Anderson argues that he received ineffective assistance of counsel during his direct appeal. Specifically, Anderson argues that his direct appeal counsel was ineffective for only raising three issues on direct appeal, namely, legal insufficiency of guilt, factual insufficiency of guilt, and potential error by the court in striking a portion of the cross-examination of an expert for the state.
The state habeas court rejected this claim, finding that “Appellate counsel reviewed the record and concluded that while there were some trial errors, in his opinion, other than the one issue raised, that there was no error which would result in a reversal of the judgment and sentence” and that “Appellate counsel’s performance was not deficient and did not fall below an objective standard of reasonableness.” We may only grant relief if the state court was unreasonable in making this determination.
As previously stated, to succeed on an ineffective assistance claim, Anderson must
demonstrate that his counsel’s performance “fell below an objective standard of reasonableness” and
that the “deficient performance prejudiced the defense.”
See Strickland
,
H. The state’s unfettered discretion in deciding whether to seek the death penalty
Anderson next argues that the Texas death penalty statute violates due process, equal protection, and due course of law to a constitutionallyimpermissible degree because it gives unbridled discretion to prosecutors in determining whether or not to seek the death penalty. Anderson does not point to any Supreme Court or Fifth Circuit precedent forbidding such discretion, and we have *13 found none. Anderson states that he wishes to preserve this point for further review. We reject this ground for habeas relief.
I. The trial court’s failure to grant a mistrial after it struck the testimony of the state’s
risk assessment expert
Anderson argues that the state trial court should have granted a mistrial when it struck the
testimony of a risk expert for the state by reading the testimony back to the jury. Anderson raised
this claim on direct appeal, but the court refused to consider it on the merits because Anderson failed
to preserve the error at trial.
See Jackson v. Jackson
,
Anderson finally argues that, even if none of the individual errors alleged necessitate reversal,
the cumulative effect of these errors does. In
Kyles v. Whitney
, the Supreme Court recognized that
*14
the cumulative effect of errors, none of which individually are significant, could be collectively
significant.
IV. CONCLUSION
For the above-stated reasons, the district court’s denial of Newton Anderson’s petition for a writ of habeas corpus is AFFIRMED.
Notes
[*] Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.
[1] It appears from the record that the State could also have properly raised procedural default with respect to other claims, but the State did not do so. This court will not consider these arguments.