* Pursuant to 5 TH C IR . R. 47.5, the court has determ ined th at this opinio n s hould not be published and is not precedent except under the limit ed circumstances set fo rth in 5 TH C IR . R. 47.5.4. - 1 - United States Court of Appeals Fifth Circuit 

## FILED November 1, 2006 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________ No. 06-70004

__________________________ NEWTON ANDERSON, Petitioner-Appellant,

versus

NATHANIEL QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division Respondent-Appellee.

___________________________________________________ Appeal from the United States District Court fo r the Eastern District of Texas

6:03-CV-171

___________________________________________________ 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 peti tion fo r writ of habeas corpus brought pursuant to 28 U.S.C. § 2254, in which Anderson challenges his capital murder conviction and death sentence. Aft er denying relief, and although the eleven raised issues were easily, and properl

y, disposed of by the district court, it entered a certificat e of appealability wit h 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 witn esses saw a man walking alo ng the highway near the Cobbs’ house in New Harmony, Texas at approximately 2:30 p.m . on th at date. A neighbor lat er th at day passed the Cobbs’ maroon Cadillac on the highway. When the neighbor arrived at home, she observed that the Cobbs’ house was on fir e. A vo lunt eer 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 vict ims had been bound wit h electrical tape, and they had both been shot in the head. The evidence also indicated that Bertha Cobb had been sexually assaulted. At tri al, a DNA expert testified fo r the prosecution th at the DNA from the semen discovered in Bertha Cobb’s body mat ched 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 wit h her. Anderson’s step-nephew, Michael Smith, also testified that on t he day of the killings Anderson drove to his residence in a maroon Cadillac and asked him for help unloading property. Sm it h assisted Ande rson 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 indict ed, tried, and convicted in Texas state court of killing t wo persons “during the same criminal transaction.” S ee T EX . P ENAL C ODE § 19.03(a)(7)(A). At tri al he pleaded not guilt y, did not testify, and was convicted by a jury. Anderson was sentenced to death, and his conviction and sentence were affi rmed. Anderson’s state petition for post-conviction relief was denied. He f

iled a petition for writ of habeas corpus in federal district court. The district co urt- 3 -

denied this peti

tion, and Anderson timely appealed. The district court granted a certificat e of appealability on eleven issues. Prior to his conviction fo r the murders of Frank and Bertha Cobb, Anderson had an extensive criminal hist ory . He had been incarcerated for family violence assault and for four burglaries. He had also been arrested as a j uvenile in Califo rnia for a burglary. Anderson’s ex-wife testified that he physically abused her and th at they had both used drugs during their marriage. Testimo ny was also presented indicating that Anderson, while awaiting trial, had implements that could be used in an

e scape attem

pt 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 peti tion filed in 2004, aft er the effective date of the Ant it errori sm and Ef fective Death Penalty Act (“AEDPA”), the AEDPA applies to his claims. See Neal v. Pucke tt , 286 F.3d 230, 235 (5th Ci r. 2002) (citing L indh v. Murphy , 521 U.S. 320, 324-26 (1997) (noting th at the AEDPA applies to all federal habeas corpus peti tions filed on or aft er April 24, 1996)). The district court denied all of Anderson’s claims and granted a certificate of appealability on all eleven issues. S ee 28 U.S.C. § 2253(c); FED . R. APP . P. 22(b)(1); Slack v. McDaniel , 529 U.S. 473, 478 (2000). Anderson, therefore, has the right to appeal. This court evaluates the merit s determ inat io ns of the state habeas court to determ ine if they eit her “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established [f]ederal law, as determ

ined by the Supreme Court of the Unit ed States; or (2) resulted in a decision th at was based on an unreasonable determ inat io n of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). A decision is considered contrary to established- 4 -

federal law when it “reaches a legal conclusion in direct conflict wit h a prior decision of the Supreme Court or if it reaches a different conclusion th an the Suprem e Court based on materially indist inguishable facts.” Miniel v. Cockrell , 339 F.3d 331, 337 (5th Cir. 2003). We review the district court’s “concl usions of law de novo, applying the same standard of review to the state court’s decision as the district court.” H enderson v. Quarterman , 460 F.3d 654, 659 (5th Cir. 2006) (int ernal quotation om it ted) (affirming the district court’s denial of a peti tion fo r habeas corpus in a death penalty case). The district court granted summary judgment in favor of the State on all eleven issues. Accordingly, “this court must determine whether the record discloses any . . . i ssues . . . that would preclude summary judgment in the State's favor.” I d. (quoting Martinez v. Johnson , 255 F.3d 229, 237 (5th Cir. 2006)) (omissions in original). III. DISCUSSION A. Ineffective assistance of counsel at trial Anderson argues th at his Sixt h Amendment right to counsel was violated by virtue of his attorney s’ ineffect ive assistance at tri al. Specifically, Anderson alleges that his counsel was ineffective by permitting an expert to testify on Anderson’s behalf during the punishment phase who stated th at Anderson would likely be a continuing th reat to society if he were not in confinement. Dr. Qui jano , a psychologist, testified th at testing had confirmed th at Anderson was dangerous but th at he believed th at the security in th e Texas pri son system would be able to prevent Anderson from committing vio lent acts in prison. The Sixt h Amendment right to counsel entitles the d efendant to “a reasonably competent attorney , whose advice is wit hin the range of com petence demanded of attorney s in criminal cases.” United States v. Cronic , 466 U.S. 648, 655 (1984) (int ernal quotation om it ted). To succeed on an- 5 -

ineffect ive assistance claim, Anderson must demonstrate th at (1) his co unsel’s performance “fell belo w an objective standard of reasonableness” and (2) that the “deficient performance prejudiced the defense.” S ee Strickland v. Washington , 466 U.S. 668, 687–88 (1984). Prej udice to the defense

means th at “counsel's errors were so serious as to deprive the defendant of a fair tri al, a tri al whose result is reliable.” I

d. at 687. There is an initial presumption that counsel’s decisions are reasonable. Id. at 689. Deficient representation occurs when “counsel made errors so serious th at counsel was not functioning as the ‘c ounsel’ guaranteed the defendant by the Sixth Amendment.” I d. at 687. Only if the peti

tioner can show th at the state court was unreasonable in determ ining th at thi s action could have furthered a reasonable strategy may assistance be fo und to be ineffect ive. S ee Duff-Smith

v. Collins , 973 F.2d 1175, 1183 (5th Cir. 1992) (noting th at failure to present any mit igating evidence was not ineffective assistance, but was instead a “reasoned tri al strategy” and “no t defective within the meaning of Strickland”). The state habeas court found that “Defense trial counsel made a reasonable tri al strategy of accepting that mental health experts had said and would continue to say th at Applicant was a future danger but th at Dr. Quijano would show the jury th at he could safely be controlled in prison.” Anderson argues th at this was not a reasonable tri al strategy and th at, therefore, his conviction must be reversed. Anderson’s trial counsel explained at the hearing on the state writ of habeas corpus th at he had no other viable evidence fo r mit igation and that, therefore, his strategy was to convince

one of the jurors, a Cathol ic lay person, th at since Anderson could be controlled in pri son she should vote against giving him the death penalty. In light of the evidence presented in t he state court proceeding, we hold th at this decisio n by the state court was not based on an unreasonable determ inat io n of the facts or an unreasonable application of the law. S ee 28 U.S.C. § 2254(d). We- 6 -

reject this ground for relief. B. Admission of crime scene photographs Anderson next argues th at the tri al court’s admission of certain gruesome crime scene photographs constituted a vio lat io n of due process and requires reversal of his conviction. In general, state law mat ters are not proper grounds fo r habeas corpus rel ief. “[I]t is not the province of a federal habeas court to reexamine state-court determ inat io ns on state-l aw questions. In conducting habeas review, a federal court is limit ed to deciding whether a conviction vio lat ed the Constitution, laws, or treaties of th e United States.” Estelle v. McGuire , 502 U.S. 62, 67–68 (1991) (int ernal quotation om

it ted). Only if t he admission was so prejudicial as to offend due process may the federal courts consider it. See id. In evaluating the constitutionality of such evidence, this court has held th at where the graphic crime scene photographs “serve[] to illust rate and make mo re understandable the of ficers’ testimo ny which described the [scene] and it s condition, and the lo cation 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 , 75 F.3d 1017, 1039 (5th Cir. 1996). The state habeas court found that these photographs were “visual depictions of the oral testimony of investigators and firemen.” The photographs are disturbing and bloody depictions of the victims in a burned house. In order to meet the th

reshold of a constitutional vio lat io n by the admission of this evidence, Anderson must show th at the evidence was “so unduly prejudicial th at i t render[ed] the tri al fundamentally unfair.” Payne v. Tennessee , 501 U.S. 808, 825 (1991). We need not decide this issue because “[t]he erroneous admission of prejudicial evidence will justify habeas relief only if the admission was a crucial, highly significant factor in the defendant's conviction.” N eal v. Cain , 141 F.3d 207, 214- 7 -

(5th Cir. 1998). Here, even assuming it was error to admit this evidence, the admission was not a crucial, highly significant factor in Anderson’s conviction. The other evidence against Anderson was overwhelming, including Anderson’s confession to his sist er, his semen fo und inside of Bertha Cobb’s body, his possession of the Cobbs’ stolen property , and his having been seen driving away from the Cobbs’ house. The state habeas court did not unreasonably interpret federal law in denying t his ground for relief. We reject it as well. 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 int o th at, do yo u think th at in this case th at the defendant

– the Defense and the attorney s fo r the defendant would ever have admit ted th at he was even in the house in the fir st place if his

– the Cobbs’ property had not been fo und in his trailer? Do yo u think they would have com e in and told yo u th at? Do you think the Defense would have come in here and admit ted th at 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 inst ructed the jury to disregard the statem

ent. 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 statem ent. The defense then moved for a mistrial, and the court denied the motion. Later in the argument, the prosecutor stated: “But I’ll tell yo u this: Don’t think fo r a minut e- 8 -

th at the State of Texas believes th at there is another person.” Again the defense objected, the court sustained the objection and inst ructed the jury to disregard the statem ent, the defense moved for a mist ri al, and the court denied the motion. Anderson argues th at these statem ents by the prosecutor amo unted to constitutionallyimpermissible “vo uching” th at necessitates a new tri al. U nited States v. Murrah , 888 F.2d 24, 26–27 (5th Cir. 1989) (reversing a conviction because of improper statem ents by the prosecutor). “The test applied to determ

ine whether a tri al error makes a tri al fundamentally unfair is whether there is a reasonable probability th at the verdict might have been different had the tri al been properl y conducted.” Kirkpatrick v. Blackburn , 777 F.2d 272, 278–79 (5th Cir. 1985). The district court agreed wit h Anderson th at these statem ents were improper, stating th at “t he prosecutor’s com

ment was a bizarre and manifest ly improper accusation th at 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 statem ents did not have a “substantial and injurio us effect or influence in determ inat ing the jury’s verdict.” B recht v. Abrahamson , 507 U.S. 619, 623 (1993) (int ernal quotation om it ted). 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 inst ruction after each of the sustained objections to the improper statements. Ward v. Dretke , 420 F.3d 479, 499 (5th Cir. 2005) (noting that “a timely objection and request for a curative inst ruction would have mitigated the prejudice generated by the prosecutor's [improper] invo cation”); see also Derden v. McNeel , 938 F.2d 605, 622 (5th Cir. 1991) (Jones, J., dissenting) (“[T]he tri al judge's cur ati ve inst ructions to the j ury wit h respect to the two instances of alleged- 9 -

prosecutori al misco nduct significant ly reduced the ri sk of prejudice to [the defendant].”). We reject this ground for relief. D. Use of undefined and vague terms in the special sentencing issues Anderson argues th at t he special issues submitted to the jury during the punishment phase contained undefined and vague terms so as to vio lat e the Eighth Amendment

. The special issues submit ted to the jury are mandated by T EX . C ODE C RIM . P

. art. 37.071, § 2(b)(1)–(2) & (e). Anderson point s to various words used in this special issues, namely “probability,” “criminal acts of vio lence,” and “continuing th reat to society ,” in arguing th at these terms are unconstitutionally vague. In Zant v. Stevens , the Supreme Court noted th at statutory aggravating factors “circumscribe th e class of persons el

igible fo r the death penalty.” 462 U.S. 862, 878 (1983). In G odfrey v . Georgia, the Supreme Court reversed a death sentence on the basis th at 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 t he vagueness of these terms” and th at 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 com plaint s regarding the alleged vagueness of the same terms of which Anderson com

plains, and also of similar terms. S ee James v. Collins , 987 F.2d 1116, 1120 (5th Cir. 1993) (holding th at the terms “deliberately,” “probability,” “criminal act s of violence,” and “continuing th

reat to society” “have a com mo n-sense core of meaning th at criminal juries should be capable of understanding”) (int ernal quotation om it ted); see also Hughes v. Johnson , 191 F.3d 607, 615 (5th Cir. 1999); Woods v. Johnson , 75 F.3d 1017, 103 3–34 (5th Ci r. 1996). As these cases- 10 -

fo reclose relief, we reject this ground for habeas relief. 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 th at the tri al court’s failure to info rm the jury properl y about the effect of a non-unanimous verdict on the special sentencing issues constituted a vio lat io n of the Ei ghth Amendment

. In other words, Anderson argues it was unconstitutional that the court did not instruct the jury th at 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 , 486 U.S. 367 (1988), and McKoy v. North Carolina , 494 U.S. 433 (1990). This court, however, has previously held th at the sit uation about which Anderson com plains is not sufficient ly similar to Mills and McKoy to permit relief. Anderson acknowledges t his in his brief, stating th at “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 otherwi se granted herein.” In H ughes , the court stated th at “[u]nlike the syst ems discussed in Mills and McKoy , a single juror in Texas cannot preclude the remainder of the jury from considering mitigating evidence.” 191 F.3d at 629. Previously, in J acobs v. Scott , the court noted th at “t he law in Texas is com pletely different from th at in Mills .” 31 F.3d 1319, 1328 (5th Cir. 1994) (holding th at this claim was procedurally barred but also was “merit less”). We reject this ground for habeas relief. 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 th at the tri al court’s failure to require th at the statutory aggravating factors be alleged in the indictment was a vio lat io n of due process. Anderson argues that under Apprendi- 11 -

v. New Jersey , 530 U.S. 466, 476 (2000), any fact th at increases the penalty fo r a given crime beyo nd the s tatutory maximum must be alleged in the indictment and proven at trial beyond a reasonable doubt. A pprendi does not require th at the special sentencing issues fo r the death penalty be pleaded in the indict ment . Anderson points to no law indicating such a requirement, and this court holds that the state habeas court was not unreasonable in rejecting such a requirement. Anderson further argues th at he was improperly required to bear the burden of proof on the mit igation special sentencing issue in vio lat io n 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 of

fense.” A pprendi , 530 U.S. at 494 n.19; see also Rowell v. Dretke , 398 F.3d 370, 379 (5th Ci r. 2005) (“[N]o Suprem

e Court or Fift h Circuit authority requires the State to prove the absence of mit igating circumstances beyo nd a reasonable doubt.”). We reject these grounds for relief. G. Ineffective assistance of counsel on direct appeal Anderson argues th at he received ineffective assistance of counsel during his direct appeal. Spe cifically, 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 potenti al 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 th at “Appellate counsel reviewed the record and concluded th at while there were som e tri al errors, in his opinio n, other th an the one issue raised, th at there was n o error whi ch 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 o nly gr ant relief if t he state court was unreasonable in making this determ inat io n.- 12 -

As previously stated, to succeed on an ineffect ive assistance claim, Ande r son must demonstrate th at his counsel’s performance “fell belo w an objective standard of reasonableness” and th at the “deficient performance prejudiced the defense.” S ee Strickland , 466 U.S. at 687–88. Appellate counsel explained at the state court hearing on the writ of habeas corpus th at it would have been a waste of time to argue other issue s. In addition, it m ight potenti ally have aggravated the appellate court to have to read about insignificant issues, thereby making it less likely th at Anderson would win o n t he significant issues. Anderson points out, however, that his counsel should have considered the possibilit y of waiver in not raising these arguments. The district court agreed with Anderson and found that he had sati sfied the first prong of S trickland , namely th at counsel’s performance fell belo w an objective standard of reasonableness. We assume, without deciding, that this conclusion is correct. To succeed on an ineffective assistance claim, however, Anderson must also have shown th at the error caused prejudice. The issues that Anderson argues his counsel should have raised on direct appeal, namely issues B-F above, lack merit

. As such, failure t o rai se these issues did not prej udice Anderson. Anderson further argues, however, that “[i]t was reasonably prob able that at least one of the issues raised above, would have been considered by the Supreme Court.” We disagree. The state court did not act unreasonably in denying this ground for habeas relief. We therefore reject this ground for relief. H. The state’s unfettered discretion in deciding whether to seek the death penalty Anderson next argues th at the Texas death penalty s tatute vi ol ates due process, equal protection, and due course of law to a constitutionally impermissible 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 Fift h Circuit precedent forbidding such discretion, and we have1 It appears from the record th at the State could also have properl y raised procedural default wit h respect to ot h er claims, but the State did not do so. This court will not consider these arguments. - 13 - fo und 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 th at the state tri al court should have granted a mist ri al when it struck the testimo ny o f a risk expert for the state by reading the testimo ny back to the jury. Anderson raised this claim on direct appeal, but the court refused to consider it on the merit s because Anderson failed to preserve the error at tri al. S ee Jacks on v. Jackson , 194 F.3d 641, 652 (5th Cir. 1999) (“[The] Texas contem

poraneous object io n rule constitutes an adequate and independent state ground that p rocedurally bars federal habeas review of a petitioner's claims.”) (internal quotation omitted). Accordingly, the federal courts will only consider this claim “if the defendant can first demonstrate eit her ‘cause’ and actual ‘prejudice,’ or th at he is ‘actually inno cent.’” B ousley v. United States , 523 U.S. 614, 622 (1998). In its motion for summary judgment, the State argued that procedural default applied to this claim. In his reply to the motion for summary judgment, Anderson did not argue cause and prejudice or actual inno cence. He admits as much in his appellat e brief, stating that his only suggested ground fo r cause was “no t directly briefed as cause fo r the default.” As such, the district court properl

y r efused to consider this issue on the merits. 1 We reject this ground for relief. J. Cumulative effect of errors Anderson finally argues th at, even if none of the individual errors alleged necessitate reversal, the cumulative effect of these errors does. In K yles v. Whitney , the Supreme Court recognized th at- 14 -

the cumulative effect of errors, none of which individually are significant , could be collectively significant

. 514 U.S. 419, 436–37 (1995). The state habeas court rejected this argument, finding that “t he cumulation of any mere tri al error did not amo unt to federal constitutional harm” and “t hat the cumulation of errors did not amo unt to a deprivatio n of due process.” We do not hold that this conclusion was an unreasonable determ inat io n of the law or an unreasonable application of the facts. We reject this ground for relief. IV. CONCLUSION For the above-stated reasons, the district court’s denial of Newton Anderson’s peti tion fo r a writ of habeas corpus is AFFIRMED.