*2 pros- During argument, the CLARK, and Before TATE CHARLES divulged length McKinney’s ecutor WILLIAMS, Judges. Circuit conviction, gave his prior for a sentence prosecutrix’s de- explanation for own WILLIAMS, Judge: Circuit JERRE S. crime, on reporting commented layed Estelle, Jr., W. J. appeal by This is weight of indictment as evidence Department Director of Texas of Cor- press- motives and the rections, judgment from the district court’s case, suggested that ing his corpus relief Paul Abra- granting habeas mention- conclusion foregone McKinney. ham He had been convicted be introduced ing evidence that could Texas state court. We reverse. the trial. De- punishment phase of at the argu- throughout statutory rape objected indicted fense Michelle, overruled adopted daughter, and was sometimes of his ment objected prosecutor' sometimes sustained. The then Defense counsel immediately, but on commented defense counsel’s continued the trial court dismissed the without objections by telling “He’s ruling objection, on the [de- and defense counsel pretty fense well in de- succeeded counsel] neither asked for a nor renewed his ” my stroying train of . . thought. . When objection. *3 comment, objected defense counsel that to him court told to sit down and let OF THE RESOLUTION ISSUES finish. fi- prosecutor’s The prosecu- The district court nal statement aswas follows: closing argument inflammatory tor’s was so Now, this is about the most clear cut case render the trial and as to whole of I imagine. Maybe can be- it’s fundamentally unfair. While the State cause I living with the case a have-been concedes, must, as in all candor it that more; long time know and I have there improper, it contends that been hearings your a lot of outside of preserve McKinney’s properly presence. every- You’re not able to hear contempo- error in accordance thing. objec- There have been lot of objection operates raneous rule as a waiver during may tions made the trial. You corpus proceeding. of the issue in a habeas wonder, why being now is that isWhy being sustained? that one over- prosecutor’s final statement Well, ruled? there were a lot of reasons closing argument blatantly improp his things for you got that all never law, however, er. Under Texas a contem hear. A lot of these are issues taken care poraneous pre must be made to your presence, of of outside and evidence serve such errors for review on is admitted or ruled inadmissable outside (Vernon Tex.Code Crim.Pro.Ann. art. 36.07 your presence of So, frequently. 1966). Although objected rate, things there a lot of that I know are time, proper at the failed case;' about the I have talked with the objection by obtaining on it. This it, people; very I feel strongly about and procedural default barred review of the I sincerely hope you way feel the same appeal claim in the Texas courts on direct about it. You heard the evidence. Sure- State, corpus. McKinney and habeas v. 505 ly, doubt, there can be no reasonable no 536 S.W.2d in anyone’s reasonable doubt here. mind hope be, I pray and I that if there should Principles comity and federal be, if there should if people eleven should prevent granting ism federal courts from doubt, per- reasonable that that one corpus relief in the nature of to a habeas son good who knows well and that he’s prisoner state whose claim was re denied guilty just here, as sitting he’s holds out view the state proce courts because of a conviction, and votes his because ladies default, showing dural absent a both of gentlemen, I will him try day from cause resulting preju default and day in, day out, out day in and Sykes, dice. v. 433 97 rest of the Henry time I’m with (1977); 53 Wade, L.Ed.2d 594 Wash because he’s as sitting he’s ington Estelle, (5th F.2d Cir. today. courtroom If I have to I’ll 1981); project Tyler Phelps, (5th make a 643 F.2d out it and I ask will you 1981).1 to return you verdict This case must turn which Cir. on the can return in application this case. That’s a important princi verdict of these most of guilty. ples. The district court found that McKin- may excused, (5th Here, 1980). 1. Procedural defaults notwith- Cir. standing Wainwright, where the state court refused to consider merits despite (Tex. reaches the merits the claim a de- 505 S.W.2d 536 fault, Thompson Estelle, Crim.App.1974), 642 F.2d 996 and Texas not ex- law does 1981), defaults, or where the state has its own rules cuse such Jiminez v. defaults, Blackburn, excusing 1977). Clark v. into preju- play only test of comes adequate had shown cause and ney petitions prisoners. from state procedural default dice overcome may the trial While misconduct be suf- that the error rendered concluded error,” “plain find constitute fundamentally unfair. Because we ficient does adequate that the misconduct is has not shown not follow default, we need reach the the cause element the Wain- cause for the establish a whole test. prejudice. The record as issue lack trial did not shows corpus a habeas case.

fundamental fairness. there, however, central issue was whether petitioner had exhausted state remedies McKinney alleges two reasons for 2254(c). required by object properly at trial.2 as 28 U.S.C. § counsel’s failure to First, peti- review urges in brief state court refused to prosecutor’s regarding prosecutorial tioner’s claim mis- continuously “[t]he *4 to the petitioner . the so as because he had failed follow prejudiced remarks.. conduct object every requirements at error justify his failure to formal identifica- to was that the improper argument where tion. This court found because instance an petitioner true had the made.” While it is that continued issue court, form, he part prosecution of the albeit in an improprieties on the circumstances, opinion the de- exhausted state remedies. The may, in some excuse Wainwright object, it do so in connection duty fense of its to cannot cites not men- survey post-Wa/n- record. the issue of exhaustion and does on this Our prejudice cause test because corpus proceedings in tion the in issue the case. a case was not at in single circuit has not revealed the which the cause element of were prosecutorial misconduct Even if allega- by petitioner’s was the test satisfied object in failure to sufficient to excuse a prosecutorial that caused tion misconduct Wainwright, our decision the context the default. case, present the unchanged. In would object; his error was mistakenly relied defense counsel did district court objection. Against Garza, perfect his failing 608 659 to United States v. frequent objections 1979), background of his the throughout the 1978), holding throughout the trial and its ap- prosecutorial argument prosecutor’s his that the largely an McKinney’s proce- pears to have been off-handed was cause ease, however, comment, purpose impress- default. is more for the dural Neither get ruling. a A hold- applicable ing here. the than to by excusing attorney stymied who ing appeal a direct from a Garza involved justified is not misconduct in federal in which criminal conviction by the attorney was unshaken when the appellant the that prosecutorial claimed misconduct, carry merely failed to but misconduct rendered fundamental- through responsibilities. on case, present appel- As the ly unfair. in the de- explanation for object properly failed to trial. Be- second lant at objec- appeal the case a direct from fense counsel’s failure cause by conviction, attorney was intimidated under federal it was reviewed tion is standard; Wainwright An examination “plain prosecutor’s remarks. error” - specif transcript shows no prejudice the trial court was not issue. The cause and (Tex. 505 S.W.2d argues ther. also that the error Crim.App.1974). properly preserved bound follow the In its We are under law. Texas appeal, on this matter. review of this Texas court’s determination case on direct Allen, County Appeals County that Court of Ulster Court of Criminal 2213, (1979); perfected 60 L.Ed.2d 777 defense not counsel had objec- Sykes, required contemporaneous 433 U.S. 97 S.Ct. as (1977). L.Ed.2d tion rule and to consider the issue fur- refused this; majority ic quoted evidence of contention is has the most im- speculative. addition, wholly the tran- proper concluding argument made script as a whole this contention makes not, however, prosecutor. majority has objected vigor- untenable. Defense counsel repeated prior improprieties by detailed the ously throughout despite the entire trial prosecutor, and the unsuccessful at- prosecutor of the remarks and the trial tempts by defendant’s counsel .the rulings against court’s numerous him. against court assert curative action nothing There is to show that he was sud- grossly improper arguments. It was denly stricken with fear at the last moment light past impro- of these continuous of the trial. truly Had defense counsel prieties, concluding quoted as well as of this feared the wrath of the or the argument (just retired) before the court, objections or his continued present trial court “In the concluded: prejudice eyes would client’s case against context of trial and he would not have made this ‘backdrop’ prosecutor’s argu- of the earlier objection, many objections, or earlier in the ments, the not Court does hesitate find above, place. first As we stated the rule about which excusing the a stymied omissions of attor- complains deprived egregious so that it ney will save one who fails to finish the right him of his to fair trial under the due job enough begin. was bold process clause.” Finally, closing argument while the *5 prosecutor beyond proper went far My majority brethren of the somewhat bounds, it must be noted that it somewhat lightly disagree with this conclusion. Rath- general fit into the tenor of the entire trial. er, they emphasize that under closing The argument of the defense attor- Sykes v. procedural a default under Texas ney might have a been stimulus to the law bars federal habeas relief. prosecutor’s improper closing argument. object The defendant’s counsel to the did Furthermore, the transcript makes clear grossly improper argument (as he had con- that defense improper counsel was of sistently previous exhibitions). equal comment and perhaps in procedural is default here that coun- measure, throughout the of course a trial sel, although objecting, did not obtain an which fell far a short of model of the order- express ruling by upon the state trial court ly search for jurispruden- truth which is the objection. State, v. circumstances, tial ideal. Under these we S.W.2d As say cannot procedur- that defense counsel’s appellate decision states: “The excusable,3 al default is or that immediately ap- record reflects that after lacked fundamental fairness. pellant objected prosecutor’s argu- While we expressly disapprove of the con- ment court retired the for delibera- prosecuting attorney, duct of the we must ruling objection.” tions without on said nevertheless conclude that it is insufficient to satisfy the cause elements of the Wain- Prejudice clearly is grossly shown test this case. Therefore we re- issue, then, improper argument. The judgment verse the of the district court Sykes whether under v. there granting the corpus. writ of habeas was “cause” for the defense counsel’s fail-

REVERSED. ruling objection ure to obtain —a undoubtedly that would as have been TATE, Judge, dissenting: Circuit adverse, as was the for most of his case respectfully I previous dissent. objections. ineptness general has not raised the issue of ineffec- the failure is reflection transcript tive assistance in this A counsel. review of the does not objection general ineptness, failure to the critical in this show such a however. case does raise the issue of whether credibility, sought his witnesses’ present agree

I would with the district and influence of the adequate cause is shown for this use status court that government investigatory procedural appa- stat- entire minor default.1 believability ed: ratus to bolster of this case. respondent To relies on the extent objection” “contemporaneous (footnote rule Garza, 665-66 supra v. U. S. see omitted). frustrate v. S.W.2d Judge recognized sepa- As Rubin the Court is of the (Tex.Crim.App.1974), Alabama, opinion in v. su- rate Cronnon opinion McKinney has demonstrated 1979)] (5th pra at 252 F.2d 246 Cir. [587 prejudice” to necessary “cause and result), (Rubin, concurring in the claims Eu- the rule’s strictures. circumvent improper jury argument necessitate At- repeated improprieties banks’ caused judicial linedrawing. Eubanks’ press kins to fail to clearly prej- and more more complained-of remark. Cf. United States approved udicial in Cronnon v. than those Garza, (5th 1979) Cir. Alabama, Estelle, supra, and Alvarez indeed, (“while and, could supra 1976)] but F.2d 1319 [531 objected to the first should have instances nearly egregious as that con- so prosecutor, comment Estelle, supra. demned in Houston transgressions point at some of this However, is convinced Eu- the Court greatly so as to be cumulated remarks, with sugges- rife banks’ final incurable; then ex- tions that the court and defense counsel tremely prejudicial comments would prosecution’s attempts frustrated jury’s serve to focus the attention on present of the evidence laced all them”); supra [569 personal with his conviction of firm 1978)] (re- F.2d 372 at 381-82 guilt, crossed boundaries peated improper argument instances *6 constitutionality propriety, and de- comments on defense coun- fundamentally prived McKinney of objections may mitigate sel’s successful trial he was entitled. fair to which object). duty defendant’s The inher- respectfully dissent. Accordingly, I prejudice ent in Eubanks’ last remarks

evident. important problem facing most

[T]he was its decision to credit the

testimony of .. . the witnesses [state’s]

or that of .... defendant] [the

prosecutor’s comments . . . were ex-

pressly intended to influence crit- this choice; credibility

ical he introduced jury’s consideration his own choice,

personal opinion as sug-

gested the existence information be-

yond trial objection, op- the state trial defense I will the factual counsel’s not dwell lack court, it, immediately referring portunity, interrupting jury’s proc- an- without without courtroom, gentlemen, jury: leaving “Ladies and ess of if the nounced defendant’s charge, you again retire will the court once for a take the Court’s had asked foreman, room, you undoubtedly and when would elect a have overruled verdict, improper prosecutorial at a knock on the door and we defense arrived repeated as on earlier occasions. will receive it.” that, immediately following The record shows