* 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that this opinion should not be published and is not precedent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. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-11269

_____________________

ALLEN WAYNE JOHNSON,

Petitioner-Appellee,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT

OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

(3:95-CV-562-T)

_________________________________________________________________ December 18, 1997

Before JOLLY, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM: *

Gary L. Johnson, Director of the Texas Department of Criminal

Justice, Institutional Division, appeals a portion of the district

court’s grant of habeas relief to Allen Wayne Johnson, contending

that the court erred by concluding that the prosecutor’s remarks

during closing argument at the guilt phase o f Johnson’s trial

violated due process. We REVERSE in PART and REMAND

.- 2 - I.

In 1989, a Texas jury convicted Johnson for delivery of a

controlled substance (methamphet amine). The jury found a prior

murder conviction alleged for enhancement of punishment to be true

and sentenced Johnson to 75 years’ imprisonment.

Johnson’s conv iction was affirmed by the state court of

appeals in December 1990. But, the Texas Court of Criminal Appeals

granted Johnson’s petition for discretionary review; in April 1992,

it remanded the case to the court of appeals to determine whether

the prosecutor’s improper argument at the punishment phase of trial

was harmless. ( At that phase, the prosecutor had suggested

repeatedly the existence of additional evidence which the State was

precluded by the rules of evidence from presenting to the jury.)

On remand, in March 1993, the court of appeals affirmed the

conviction, finding harmless error.

Johnson filed a state court habeas application in July 1993,

claiming, inter alia , that the prosecutor’s argument at the guilt

phase violated due process. The Texas Court of Criminal Appeals

denied the application without written order in January 1994. In

December 1994, John son filed a second state habeas application,

again claiming, inter alia

, prosecutorial misconduct during closing

argument at the guilt phase. The Texas Court of Criminal Appeals

denied that application without written order in December 1994.- 3 -

In 1996, Johnson filed for federal habeas relief, asserting

that the grand jury lacked jurisdiction to indict him; that the

prosecutor made improper arguments at voir dire and during closing

arguments at the guilt and punishment phases; that the evidence was

insufficient to support his conviction; and that his conviction was

based on inadmissible hearsay. The magistrate judge concluded that

the prosecutor’s arguments during the guilt and punishment phases

violated due process, but rejected Johnson’s other content ions.

Accordingly, the magistrate judge reco mmended that the district

court grant Johnson habeas relief unless the State retried him.

The district court adopted the recommendation, granted habeas

relief, and ordered Johnson released from custody. The Director’s

motion for a stay of the judgment pending appeal was granted by the

district court.

II.

The Director does not challenge the district court’s

conclusion that the prosecutor’ s arguments during the punishment

phase violated due process. He contends, however, that the

district court erred by granting habeas relief based on the

prosecutor’s arguments during the guilt phase.

It goes without saying that, on appeal from a grant of habeas

relief, “we review the district court’s findings of fact for clear

error, but review issues of law de novo .” D ison v. Whitley

, 20

F.3d 185, 186 (5th Cir. 1994). And, because Johnson filed for- 4 -

federal habeas relief prior to the enactment of the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA), “we must apply the

pre-AEDPA standards of review”. G ochicoa v. Johnson

, 118 F.3d 440,

444 (5th Cir. 1997).

“The standard for granting habeas relief because of

prosecutorial misconduct is the narrow one of due process, and not

the broad exercise of supervisory power.” D erden v. McNeel

, 978

F.2d 1453, 1460 (5th Cir. 1992) (en banc) (internal quotation marks

and citation omitted), cert. denied

, 508 U.S. 960 (1993). “To

establish that a prosecutor’s remarks ar e so inflammatory as to

have prejudiced the substantial rights of a defendant, a habeas

petitioner must demonstrate either persistent and pronounced

misconduct or that the evidence was so insubstantial that absent

the remarks, a conviction would probably not have occurred.” B yrne

v. Butler

, 845 F.2d 501, 508 (5th Cir.), c ert. denied

, 487 U.S.

1242 (1988). In other words, the prosecutor’s conduct is not of

constitutional ma gnitude “unless it is so prejudicial that the

s tate court trial was rendered fundamentally unfair within th e

me aning of the Due Process Clause of the Fourteenth Amendment.”

Jones v. Butler , 864 F.2d 348, 356 (5th Cir. 1988), cert. denied

,

4 90 U.S. 1075 (1989); see also Houston v. Estelle

, 569 F .2d 372,

378 n.8 (5th Cir. 1978) (“In order for a state habeas petitioner to

prevail on a claim [in federal court] that an improper jury

argument marred his trial the asserted error must be one of- 5 -

constitutional magnitude. This means that the prosecutorial

rema rks must be so prejudicial that they render the trial

fundamentally unfair.”).

In sum, a prosecutor’s argument, by itself, is a

constitutional violation in only the most egregious cases. O rtega

v. McCotter

, 808 F.2d 406, 410 (5th Cir. 1987); see also Houston v.

Estelle , 569 F.2d at 382 (“a defect of constitutional proportions

is not to be found in any but egregious cases”). “The

constitutional frontier stands very far indeed from the core of

good pro secutorial practice.” I d

. at 384. Along that line, a

prosecutor’s statements must be viewed in the context of the entire

trial to determine if the improper statements or arguments were a

“crucial, critical, highly significant factor in the jury’s

determination of guilt.” O rtega

, 808 F.2d at 410-11 (internal

quotation marks and citation omitted); see also Houston v. Estelle

,

569 F.2d at 377 (“we are required to evaluate the remarks alleged

to be improper in the context of the entire trial”).

At issue are these comments by the prosecutor during closing

argument at the guilt phase. The State contends that the comments

did not violate due process. In urging that they did, Johnson also

relies upon two aspects not utilized by the district court: the

prosecutor’s references to him as a “major drug dealer” and a

“lawyer”.

We ca n get the kids that are possessing

it. They won’t come in here. They -- they’re- 6 - not lawyers like Allen Wayne Johnson . They

can’t draw up documents and have their father

sign, look like a lawyer drew up then spring

them on the day, not even his lawyer knew

about it.

He knows what he’s do i ng, and he’s a

killer. He’s two times a killer. He

actually, literally kills people; and he also

sells the stuff that kills people. That’s --

how do you think he’s lived for two years

without a job? There’s big money in this,

ladies and gentlemen, and you can l ive awful

good. And you can support your habit awful

good.

....

[As for defense counsel’s] argument

-- hey, he’s n ot a big drug dealer. Don’t you

kid yourself. Because he can’t make bond.

Don’t you kid yourself. We got the bond up so

high, he couldn’t make it. Somebody has been

watching too much television, not in this

case. He’s a killer, and he takes care of

business. He don’t -- you don’t pay him on a

drug deal, you die.

....

.... We can sit here and say all day

long, “Why don’t we get the big drug dealers?”

“Why don’t we get the guys dealing these

drugs?” What good is it going to do us to get

the people th ey sell it to? Well, they try.

They got a guy in here, and they got a dealer.

If it’s not enough for you, we’ll go back and

regroup, try again.

....

.... We’ve got to have rehabilitation,

b ut we can’t neglect the chance to get

.. . a

major drug dealer off our streets so we can do

something with those people that he’s selling

to with some education.- 7 -

A lthough he objected to other portions of the prosecutor’s

closing argument, on the ground that the remarks were “outside the

record”, Johnson did not object to the above-quoted comments.

Nevertheless, the Director does not raise the failure to object as

a procedural bar, and the state courts did not decline to review

Johnson’s claims for failure to comply with state procedural rules.

Accordingly, Johnson’s failure to object does not prevent our

consideration of the merits of his claim. See Gochicoa , 118 F.3d

at 445.

The magistrate judge’s report and recommendation, adopted by

the district court, stated that “[t]here was no evidence of any

threats of violence with reference to the delivery of

methamphetamine charge”, and concluded that Johnson was entitled to

habeas relief because the “egregiously ha rmful” remarks “clearly

urged the jury to convict Johnson, not upon the basis of delivery

of less than 2 grams of a controlled substance, but on the basis

that Johnson killed people in the course of drug dealing.” As

noted, and in the alternative, Johnson urges that the comments that

he was “a maj or drug dealer” and a “lawyer” also are bases for

upholding the habeas relief granted as to his conviction.

A.

The Director contends that, when the arguments are considered

in the light of the entire trial, they did not unfairly prejudice

Johnson. In order to so examine the comments at issue, we must- 8 -

first consider the evidence introduced during the guilt phase.

That phase was essentially a credibility contest between Johnson

and the police officer to whom he sold the methamphetamine

—

Corsicana, Texas, Officer Semetco.

T he Officer testified that, while working undercover in May

1989, he made it known within drug-trafficking circles that he was

in the market for methamphetamine; that he went to a house, where

he was introduced to Johnson, who stated that he could provide

Semetco with an “eight-ball” of methamphetamine; that he gave

Johnson $225; and that Johnson told Semetco that he would return

the next day. According to Semetco, Johnson did not return the

next day, and he did not see Johnson until about one month later.

Semetco testified further that he went to Johnson’s residence

o n 21 June; that he was invited inside by Johnson’s father; and

that he (Semetco) went to a back bedroom and saw Johnson, who

stated that he had been in the McKinney, Texas, area for the last

month, working for some friends who had approximately five pounds

of methamphetamine to sell. According to Semetco, Johnson’s father

remained in the living area while Semetco and Johnson spoke in the

back bedroom. Semetco testified that Johnson gave him a baggie

containing a substance Semetco believed was methamphetamine; a

chemist testified that it was 1.26 grams of methamphetamine.

Johnson was the only witness presented at his case-in-chief.

His father’s affidavit was also admitted into evidence.- 9 -

Johnson testified that he had been convicted of murder in 1980

and was released from prison in 1987; that Mary Lou Larson brought

Semetco to Johnson’s apartment in May 1989; that Semetco inquired

about purchasing amphetamines; that he (Johnson) told Larson and

Semetco that he was not in the drug business and asked Larson not

to return; and that no money changed hands during the May meeting.

Johnson testified further that, during the June meeting with

Semetco, his father stood in the bedroom doorway; that Semetco

asked whether Johnson had anything for him; and that he told

Semetco that he knew Semetco was a narcotics officer and asked him

to leave. According to Johnson, Larson had told him that Semetco

was a narcotics officer. Moreover, during Johnson’s testimony on

direct examination, his father’s affidavit, supporting Johnson’s

version of the June meeting with Semetco, was admitted.

On cross-exami nation, Johnson admitted that he was a drug

addict; and that he received a 48-year sentence for murder, but

served only six years. The trial court sustained Johnson’s

objection to the quest ion whether his murder conviction had

involved drugs; the jury was instructed not to consider the

question for any purpose. Johnson denied that he had written his

father’s earlier-referenced affidavit and denied selling

methamphetamine. He testified that he had been imprisoned because

he pleaded guilty to murder, but that records in the prosecutor’s

offic e would demonstrate that someone else committed the murder.

And, according to Johnson, he did not commit the crime for which he- 10 -

was then on trial. Johnson testified that he had been unable to

find a job for the past two years.

In rebuttal, Semetco test ified that his May (first) meeting

with Johnson did not occur at Johnson’s residence; and that

Johnson’s father was not present in the same room when the

transaction took place in June. According to Semetco, Johnson

“stated that if he were busted, it would be a one-on-one situation,

that he would face the cop in court, find out who he was and would

get him or his friends, would get him, his wife, his kids, his

parents.”

Prior to closing arguments, the jury was instru cted that it

could not consider Johnson’s prior conviction as evidence of guilt,

but that it could consider the conviction “in passing upon the

weight you will give his testimony, and you will not consider the

same for any other purpose”. Following the charge, the prosecutor

waived the right to open closing arguments.

In his closing argument, defense c ounsel attacked Semetco’s

credibili ty and the chemical analysis of the methamphetamine; he

also repeated Johnson’s theory that he had been framed by the

police, and urged the jury to find reasonable doubt because the

evidence consisted primarily of Semetco’s word against Johnson’s.

The prose cutor then made his closing argument. Prior to

making the above-quoted remarks at issue, the prosecutor urged the

jury “to follow your oath as a juror and base your verdict solely

on the evidence that you heard from the witness stand”. And, after- 11 -

the comments at issue, the prosecutor stressed, as had Johnson’s

counsel, that the case presented a credibility choice between

Semetco and Johnson: “[T]hat’s all we have in any drug dealing

case. We have the word of a police officer and we have the word

and testimony of the drug dealer. And now you have the case. You

decide who you are going to believe.”

As the Director conce des, the prosecutor’s statement that

J ohnson killed individuals who did not pay him for drugs h as no

foundation in the record and was, therefore, improper. The trial

court, as noted, had sustained Jo hnson’s objection to crossexamination along that line; and no evidence was introduced linking

drug trafficking to the murder.

We do not condone the comments at issue; they obviously should

not have been made. Nevertheless, we conclude that Johnson “has

failed to carry his burden of showing that the evidence against him

was so insubstantial that but for [the challenged] remarks no

conviction would have occurred.” F elde v. Blackburn

, 795 F.2d 400,

403 (5th Cir. 198 6). The jury was entitled to believe Semetco’s

testimony that Johnson sold methamphetamine to him; and it had

reason to disbelieve Johnson’s testimony because of his m urder

conviction and inconsistencies in his testimony. See Ortega , 808

F.2d at 411. As stated, the jury was aware, through Johnson’s

testimony on direct examination, that he had pleaded guilty to

murder. S ee Byrne v. Butler

, 845 F.2d at 511-12 (no constitutional- 12 -

violation where information divulged in prosecutor’s allegedly

improper remarks was alre ady before the jury and trial court

properly instructed jury). In the light of Semetco’s testimony

that Johnson had threatened to “get” any police officer who

arrested him and to “get” the officer’s family and friends, the

district court erred by concluding that “[t]here was no evidence of

any threats of violen ce with reference to the delivery of

methamphetamine drugs”.

As noted, the trial court instructed the jury not to consider

Johnson ’s prior conviction as evidence of guilt, but only for

evaluating the weight to be given his testimony. Such limiting

instruc tions can ameliorate the otherwise damaging effect of a

prosecutor’s improper remarks, because “juries are presumed to

follow their instructions”. Z afiro v. United States

, 506 U.S. 534,

540 (1993) (internal quotation marks and citation omitt ed); s ee

also Ward v. Whitley

, 21 F.3d 1355, 1364 (5 th Cir. 1994), c ert.

denied , 513 U.S. 1192 (1995); B agley v. Collins

, 1 F.3d 37 8, 381

(5th Cir. 1993); Derden v. McNeel , 978 F.2d at 1460.

As also noted, although Johnson objec ted to other,

unchallenged portions of th e prosecutor’s argument, he did not

object to the remarks at issue. Although, as discussed s upra

, the

lack of such objection is not a procedural bar to our consideration

of the merits of Johnson’s claim, it indicates, at the least, that

Johnson’s counsel did not consider them to be par ticularly- 13 -

egregious. Cf. Wainwright v. Witt , 469 U.S. 412, 432 n.11 (1985)

(noting that “counsel ’s failure to speak in a situation later

claimed to be so rife with ambiguity as to constitute

constitutional error is a circumsta nce [court is] justified in

considering when assessing [habeas petitioner’s] claims”).

The guilt phase took less than two days. Considering the

strength of the evidence of Johnson’s guilt, his failure to object

to the comments at issue, and the trial court’s instruction that

Johnson’s prior conviction could be considered only when passing on

t he weight of Johnson’s testimony, we conclude that the improper

arguments were not “a crucial, critical, highly significant factor

in the jury’s determination of guilt.” O rtega

, 808 F.2d at 411

(internal quotation marks and citatio n omitted). To the extent

that the improper comments may have later influenced the jury at

the punishment phase, Johnson is going to receive a new sentencing

hearing which will not be tainted by them. S ee id

. (noting that

“core q uestion of unfair prejudice” related to length of

petitioner’s “sentence rather tha n the determination of guilt or

innocence”).

B.

As noted, Johnson presses two alternative bases for

affirmance. Both bases were presented in district court.- 14 - 1.- 15 -

The prosecutor’s characterization of Johnson as a “major drug

dealer” is claimed to have been extremely prejudicial and

unsupported by the evidence. Although, as noted, Johnson made this

contention in the district court, neither the magistrate judge nor

the district court addressed it.

In any event, this claim is without merit. Semetco testified

that Johnson told him that he had been involved for the last month

helping friends sell approximately five pounds of methamphetamine

( approximately 1800 times the amount Johnson sold to Semetco)

.

Because the argument was supported by the evidence, it was not

improper.

2.

Johnson asserts also that we can affirm the grant of habeas

relief on the ground that the prosecutor, in attacking the

affidavit o f Johnson’s father, made the false claim that Johnson

was a lawyer who had prepared the affidavit for his father’s

signature, in an attempt to manipulate the course of the trial.

( Johnson gave the affidavit to his lawyer on the first day of

trial.)

Johnson is no t a lawyer. But, on cross-examination, he

admitted that he was “a jailhouse lawyer”. In any event, we agree

with the magistrate judge that, “[r]egardless of its truth or

falsity, it is unimaginable that a prosecutor calling a defendant

a lawyer would ever give rise to a constitutional error”.- 16 - III.

In sum, the district court erred by holding that, as a result

of the prosecutor’s improper comments during closing argument at

the guilt phase, Johnson’s “trial was rendered fundamentally unfair

within the meaning of the Due Process Clause of the Fourteenth

Amendment”. J

ones

, 864 F.2d at 356. Therefore, that portion of

the judgment vacating Joh nson’s conviction is R EVERSED

, and the

case is REMANDED to the district court for such further proceedings

as may be appropriate.

REVERSED in PART and REMANDED