Killer of retired Texas couple is executed

Dallas Morning News

Thursday, February 22, 2007

HUNTSVILLE – An apologetic career burglar was executed Thursday evening for torturing and killing a retired couple during the break-in of their home eight years ago. "For all those that want this to happen, I hope you get what you want and it makes you feel better and gives you some kind of relief," Newton Anderson said as he looked at relatives and friends of the couple. "I don't know what else to say."Looking toward another window where his sister was sobbing, he said, "For those that I have hurt, I hope after a while it gets better."

Anderson told them several times that he loved them. "I am sorry. That's it. Goodbye." Seven minutes later at 6:17 p.m. CST, Anderson was pronounced dead.

In a handwritten statement distributed after his death, Anderson again apologized to the family of his victims. "I only want to say that for the last eight years I have had to leave with my guilt and shame. I know I was wrong and now I give my life," he wrote. He concluded, "I give my life. I hope it is enough for everyone. If things could be undone, I would do it, I would do it!!:"

Anderson, 30, who said he began stealing from homes even before he was a teenager, had been out of prison only about four months after serving four years for burglary when he was arrested for the slayings of Frank Cobb, 71, and his 61-year-old wife, Bertha, at their rural home near Tyler in Smith County.

Anderson was the fifth Texas inmate executed this year and the first of four set to die over the next two weeks in the nation's most active capital punishment state.

Killer offers apology before he's executed

By Michael Graczyk - Houston Chronicle

Associated Press Feb. 23, 2007

HUNTSVILLE — An apologetic career burglar was executed Thursday evening for torturing and killing a retired couple during the break-in of their home eight years ago. "For all those that want this to happen, I hope you get what you want and it makes you feel better and gives you some kind of relief," Newton Anderson said as he looked at relatives and friends of the couple. "I don't know what else to say."

Looking toward another window where his sister was sobbing, he said, "For those that I have hurt, I hope after a while it gets better." Anderson told them several times that he loved them. "I am sorry. That's it. Goodbye." Seven minutes later at 6:17 p.m. CST, Anderson was pronounced dead.

In a handwritten statement distributed after his death, Anderson again apologized to the family of his victims. "I only want to say that for the last eight years I have had to live with my guilt and shame. I know I was wrong and now I give my life," he wrote. He concluded, "I give my life. I hope it is enough for everyone. If things could be undone, I would do it, I would do it!!"

Anderson, 30, who said he began stealing from homes even before he was a teenager, had been out of prison only about four months after serving four years for burglary when he was arrested for the slayings of Frank Cobb, 71, and his 61-year-old wife, Bertha, at their rural home near Tyler in Smith County. Anderson was the fifth Texas inmate executed this year and the first of four set to die over the next two weeks in the nation's most active capital punishment state.

About an hour before he was scheduled to die, the U.S. Supreme Court rejected an appeal that sought to delay the punishment. Anderson's attorneys had argued he was denied due process because of erroneous rulings in the trial court and overzealous prosecutors.

Anderson, in an interview on death row last week, acknowledged the killings but said he was at a loss for why they happened. He did not testify at his trial. The couple had been out running errands and returned home to find him inside. "I am guilty," he told The Associated Press. "I don't deny that. ... They had good evidence. Witnesses saw me. What can I say?" "The issue of guilt-innocence was absolutely moot," said Matt Bingham, who prosecuted the case.

Firefighters responding to a blaze March 4, 1999, at the Cobbs' home in New Harmony, about 10 miles northwest of Tyler, found the bodies. Frank Cobb, a retired telephone company worker, was found face-down on the floor with his hands bound with electrical tape behind his back. His wife, a retired nurse, had her hands tied with tape and had her eyes, nose and mouth covered with tape. Both victims had been shot in the head. Mrs. Cobb had been raped.

Prosecutors said their house and bodies had been set on fire. "This was a case where he didn't just kill them and take their property," Bingham said. "He really tortured them. It was just horrific."

The couple's son, daughter and nephew watched Anderson die. "I don't think it sounded true because it was written today," Carolyn Sanders, who lost her parents, said of Anderson's apology. "I think he deserves everything he got. "At least he had eight more years. They didn't." "This has been one hell of a road for all of us," her brother, Kevin Cobb, said. "I hope that young man made some kind of remorse with the Lord and himself, or he has a lot of things to worry about."

Witnesses saw Anderson driving away in the couple's maroon Cadillac. Property taken from their home was found at the residence where Anderson was living. He was arrested in Dallas, where he fled the day of the slayings.

Anderson, who had at least four previous convictions for burglary and had been arrested for burglary in California as a juvenile, said he viewed the execution as "relief more than anything." "Conditions aren't top-notch here," he said of death row. "Really, I'm tired of being here."

When he got out of prison after serving about half of an eight-year term, he said he couldn't find work. "I went back to what I knew how to do," he said. "All I knew is how to break into houses." When asked about the slayings, he replied, "The rest of my case, I can't explain why."

In California, Anderson escaped from his juvenile lockup. In Texas, he also had been jailed for domestic assault. He twice was apprehended trying to escape jail while awaiting trial on the capital murder charge. On death row, the red-haired prisoner was caught trying to cut his way out of his steel cell, earning him the nickname "Hacksaw Red" from his fellow condemned inmates.

The next Texas inmate scheduled to die is Donald Miller, condemned for the fatal shooting of two men during a 1982 robbery in Houston. Miller, 44, set for injection Tuesday, has spent more than 24 years on death row, making him among the state's longest-serving condemned prisoners. Two more executions are set for the following week.

Burglar contrite as he is executed for killing couple

By Michael Graczyk - Fort Worth Star-Telegram

Associated Press - Feb. 23, 2007

HUNTSVILLE -- An apologetic career burglar was executed Thursday evening for killing a retired couple and then setting their rural Smith County home on fire eight years ago. "For all those that want this to happen, I hope you get what you want and it makes you feel better and gives you some kind of relief," Newton Anderson said as he looked at relatives and friends of the couple. Looking toward another window where his sister was sobbing, he said, "For those that I have hurt, I hope after a while it gets better." At 6:17 p.m., Anderson, 30, was pronounced dead.

In a handwritten statement distributed after his death, Anderson again apologized. "I only want to say that for the last eight years I have had to live with my guilt and shame. I know I was wrong and now I give my life," he wrote. Anderson was the fifth Texas inmate executed this year and the first of four set to die over the next two weeks.

On Thursday afternoon, the U.S. Supreme Court rejected an appeal that sought to delay the punishment. Anderson's attorneys had argued that he was denied due process because of erroneous rulings in the trial court and overzealous prosecutors.

Anderson, who said he began stealing from homes before he was a teenager, had been out of prison only about four months after serving four years for burglary when he killed Frank Cobb, 71, and his 61-year-old wife, Bertha, at their home in New Harmony near Tyler. Firefighters responding to a blaze March 4, 1999, at the Cobbs' home found the bodies.

In an interview on Death Row last week, Anderson said, "I am guilty. I don't deny that." In late 1998 after getting out of prison, Anderson said, he couldn't find work. "I went back to what I knew how to do," he said. "All I knew is how to break into houses." When asked about the slayings, he replied, "The rest of my case, I can't explain why."

Texas Execution Information Center by David Carson

Txexecutions.org

Newton Burton Anderson, 30, was executed by lethal injection on 22 February 2007 in Huntsville, Texas for murdering a couple while burglarizing their home.

On 4 March 1999, Anderson, then 22, burglarized the Tyler home of Frank and Bertha Cobb. While Anderson was in the house, the Cobbs came home and caught him in the act. Anderson bound both victims' hands and feet with electrical tape and put them on the floor, face down.

Using the Cobbs' shotgun, Anderson shot Frank, 60, in the head at close range. He stripped Bertha, 65(*), from the waist down, covered her mouth and nose with electrical tape, and raped her. He also strangled her and shot her numerous times in the head. After murdering the Cobbs, Anderson resumed stealing from their home, then set the house on fire. He fled in the couple's car.

Anderson then drove to the trailer park where he lived with his brother-in-law's nephew. He asked for help unloading clothing and other items, then left. When Anderson returned, he told the nephew that he abandoned the car behind a building off the highway. Officials later discovered the vehicle in the location that Anderson described. At Anderson's trial, witnesses testified seeing him drive away in the Cobbs' maroon Cadillac. Other witnesses testified that Anderson, who typically had no money, was seen the night of the murders wearing expensive clothing, buying rounds of drinks, and paying generously for a car ride.

Anderson had a prior conviction for burglarizing a home in February 1995. He was sentenced to eight years' probation. When Anderson committed four more burglaries in less than three months, his probation was revoked and he was sent to prison. He was paroled in December 1998. He had been on parole for about three months when he murdered the Cobbs. Anderson also had previous convictions for assault causing bodily injury in a 1994 domestic violence case, and for theft in February 1995. He also had a juvenile record in California.

While in jail, awaiting trial, Anderson obtained a hacksaw blade and used it to cut through an air vent in his cell. During a pre-trial hearing in the courthouse, Anderson cut through his leg restraints with a razor blade and escaped. He also attempted to bribe a correctional officer to leave his cell door unlocked. A jury convicted Anderson of capital murder in May 2000 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in May 2002. All of his subsequent appeals in state and federal court were denied. While on death row, Anderson was again caught trying to cut his way out of his cell, earning him the nickname "Hacksaw Red."

In an interview from death row the week before his execution, Anderson admitted his guilt. "I am guilty. I don't deny that ... Witnesses saw me. What can I say?" He said that when he got out of prison after his earlier burglaries, he couldn't find work. "I went back to what I knew how to do. All I knew is how to break into houses." When asked about the killings, Anderson answered, "The rest of my case, I can't explain why."

The Cobb's son, daughter, and nephew attended Anderson's execution. "For all those that want this to happen, I hope you get what you want, and it makes you feel better, and gives you some kind of relief," Anderson said to them as they watched from a viewing room. "I don't know what else to say." Anderson then looked toward another viewing room, where his sister was sobbing. "For those that I have hurt, I hope, after a while, it gets better," he said. Anderson then expressed love to his relatives and said, "I am sorry. That's it. Goodbye." The lethal injection was then started. He was pronounced dead at 6:17 p.m.

In a handwritten statement distributed after his death, Anderson again apologized to the family of his victims. Kevin Cobb, the victims' son, said, "We now, as of this evening, start a new life. We will put one foot in front of the other and go on like our parents would have wanted us to."

(*)These are the victims' ages as reported by the Texas Department of Criminal Justice. According to the Associated Press, Frank was 71 and Bertha was 61.

ProDeathPenalty.com

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 Burton Anderson as the driver of the car.

Firefighters discovered the bodies of Frank and Bertha Cobb in the house. Frank's hands were bound with electrical tape and he was shot in the upper torso and in the head with his own 410 shotgun. Bertha was and they had both been shot in the head. It is believed that the Cobbs caught Anderson in the act of burglarizing their home.

Anderson then tied up Bertha Cobb, bound her with duct tape, raped, strangled and suffocated her, then shot her one time in the head with the shotgun. The house was set on fire to conceal the crime. Anderson took approximately $100 in cash, as well as clothing and electronic equipment and fled the scene in the couple's car.

Firefighters searched for hours before the couple's charred remains were discovered. On the day of the murders, Anderson pulled into the trailer park where he lived with his brother-in-law’s nephew and asked for help unloading clothing, a duffle bag, a suitcase, toiletry items, and an oscillating fan from the maroon Cadillac. The Cobbs’ son later identified those items as having come from his parents’ home. Anderson left the trailer park after unloading the property, and after returning, he told the nephew that he abandoned the Cadillac off the highway behind a building. Officials later discovered the vehicle where Anderson said he had left it.

That night, Anderson asked his brother-in-law’s niece and her boyfriend for a ride to a Dallas night club. He offered to pay them eighty dollars, which was unusual because Anderson did not ordinarily have extra cash. Bertha had cashed a check for $892.00 that very day, and kept eight hundred dollars in cash, but investigating officers found no cash in the Cobb home. Also unusual were the expensive clothes Anderson was wearing.

Witnesses at the night club observed that Anderson had a large amount of cash and bought a round of drinks for everyone at the bar. When asked whether he had broken into someone’s house, Anderson replied, “Yeah. I did something like that.” Anderson later told his sister during a phone conversation that he “did it.”

Kevin Cobb is the son of Frank and Bertha Cobb, 71 and 61. Smith County district attorney Matt Bingham says "His motive was not just to take the property but was also to torture them and ultimately kill them, and that's what he did. And he deserves exactly what he's getting." The Cobbs' grown children say their parents are missed daily. "My mother was a hard, hard-working, strong-willed Christian who could cook really good," Kevin Cobb said. "They were both devoted Christians and their deaths have been devastating to their church, their friends and their family. They are missed very much." The Cobbs' names are etched into a granite victims' memorial in downtown Tyler.

Their daughter, Carolyn Sanders, said, "It's always there and it's always brought up. It's not as frequent as it used to be, but it's still brought up." Sanders says she will join several of her family members to witness the lethal injection. "I've always believed in the death penalty, and now I know why," Sanders said. She said Anderson’s execution will bring some closure to years of pain. "This will be the end of it and then we can close and go on with the rest of our lives," Sanders said.

At trial, a DNA expert testified for the prosecution that the DNA from the semen discovered in Bertha Cobb’s body matched Newton Anderson’s DNA. Anderson was indicted, tried, and convicted in Texas state court of killing two persons “during the same criminal transaction.” 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.

UPDATE: Newton Anderson was executed almost eight years after the brutal murders of Frank and Bertha Cobb. In a handwritten statement distributed after his death, Anderson again apologized to the family of his victims. "I only want to say that for the last eight years I have had to live with my guilt and shame. I know I was wrong and now I give my life," he wrote. He concluded, "I give my life. I hope it is enough for everyone. If things could be undone, I would do it, I would do it!!:"

Anderson v. Dretke, Not Reported in F.Supp.2d, 2006 WL 156989 (E.D.Tex. 2006) (Habeas).

DAVIS, J.
Petitioner Newton Anderson (“Anderson”), an inmate confined to the Texas Department of Criminal Justice, Institutional Division, filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Anderson challenged his capital murder conviction and death sentence imposed by the 114th Judicial District Court of Smith County, Texas in cause No. 114-80325-99, styled The State of Texas vs. Newton Anderson. Having considered the circumstances alleged and authorities cited by the parties, and having reviewed the record, the Court finds that the application is not well-taken and it will be denied.

Facts

At approximately 2:30 p.m. on March 4, 1999, two witnesses saw a man walking along the highway near the house of Frank and Bertha Cobb in New Harmony, Texas. Later that afternoon, a neighbor passed the Cobb's maroon Cadillac automobile on the highway. When the neighbor arrived at her house, she saw that the Cobb's house was on fire.

A volunteer firefighter also passed the maroon Cadillac on his way to the Cobb house and later identified Anderson as the driver. Firefighters discovered the Cobb's bodies in the house. Both victims' hands had been bound with electrical tape and both had been shot in the head; Ms. Cobb had been sexually assaulted. The State's DNA expert testified that Anderson's DNA matched the DNA of semen discovered in Ms. Cobb's body. Anderson's sister testified that during a telephone conversation on March 6, 1999, Anderson confessed to her that he killed the Cobbs.

Michael Smith, Anderson's step-nephew, testified that on the day of the killings Anderson came to his residence, driving a maroon Cadillac, and asked him for help in unloading a great deal of property. Smith helped Anderson put the property in a trailer which Anderson shared with his sister and her husband. Police later recovered several items from the trailer which belonged to the Cobbs.

Procedural history

Anderson was indicted for capital murder, for killing two persons within the same criminal transaction. See Tex. Penal Code § 19.03(a)(7)(A) (2003). He pleaded not guilty, stood trial and was convicted. On May 12, 2000, after a punishment determination proceeding, he was sentenced to death. On May 22, 2002, his conviction and sentence were affirmed. Anderson v. State, No. 73, 829 (Tex.Crim.App.2002) (unpublished opinion). Anderson did not seek a writ of certiorari from the Supreme Court of the United States; his petition for post-conviction relief was denied on March 26, 2003. Ex parte Anderson, No. 54, 761-01 (Tex.Crim.App.2003) (unpublished order). On April 18, 2004, he filed an application for a writ of habeas corpus with this Court.

Claims presented

Anderson raised eleven claims in his application:

1. His trial counsel rendered ineffective assistance by offering the testimony of an expert witness who conceded his (Newton's) future dangerousness.

2. The admission of unfairly prejudicial crime scene photographs denied him a fair trial.

3 and 4. Improper argument by the prosecutor denied him a fair trial.

5. The use of undefined and vague terms in the special sentencing issues denied him the due process of law.

6. The trial court's failure to inform the jury of the effect of a non-unanimous verdict as to any of the special sentencing issues denied him the due process of law.

7. Not requiring that the statutory aggravating factors be alleged in the indictment denied him the due process of law.

8. Requiring him to bear the burden of proof on the mitigation special sentencing issue denied him the due process of law.

9. Appellate counsel's failure to raise meritorious issues constituted ineffective assistance.

10. The state's unfettered discretion is deciding whether to seek the death penalty denied him due process of law.

11. The trial court's failure to grant a mistrial after it struck the testimony of the State's risk assessment expert denied him a fair trial.

12. The cumulative effect of the above eleven errors denied him the due process of law, even if no one error was sufficiently egregious, by itself, to do so.

Standard of review

28 U.S.C. § 2254(d) provides that relief in habeas corpus may not be granted with respect to any claim which was adjudicated on the merits in State court proceedings unless the adjudication of the claim resulted in a decision that was either (1) contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, or (2) based upon an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. Pure questions of law and mixed questions of law and fact are reviewed under § 2254(d)(1), while pure questions of fact are reviewed under § 2254(d)(2). Moore v. Johnson, 225 F.3d 495, 501 (5 Cir.2000), cert. denied, 532 U.S. 949, 121 S.Ct. 1420, 149 L.Ed.2d 360 (2001).

If the state court refuses to reach the merits of a claim because of a violation of a state procedural rule, the federal court will also refuse to address the merits of the claim unless the applicant can establish either (a) that he had good cause for failing to exhaust his claim and he would be prejudiced if the federal court did not consider the merits of his claim, or (b) failing to address the merits of his claim would result in a fundamental miscarriage of justice, because he is actually innocent. See Coleman v. Thompson, 501 U.S. 722, 749-750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

Analysis

Anderson's first claim is that his trial counsel rendered ineffective assistance by offering the testimony of an expert witness who conceded his (Anderson's) future dangerousness. This claim was adjudicated on the merits by the state court, and it involves a mixed question of law and fact, so the question for the Court is whether the state court's rejection of this claim was contrary to, or the result of an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.

To obtain relief on a claim of ineffective assistance of counsel, a petitioner must establish both that (1) counsel's performance was deficient, and (2) had counsel performed adequately, there is a reasonable probability that the result in his case would have been different. See Strickland v. Washington, 466 U.S. 668, 691-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Under the Texas sentencing scheme, a defendant convicted of capital murder cannot be sentenced to death unless the state establishes beyond a reasonable doubt that there is a probability that he will commit acts of criminal violence which will constitute a continuing threat to society. After Newton was convicted of capital murder, the court conducted a sentencing determination hearing in which this issue was tried. Anderson's counsel presented the testimony of Dr. Walter Quijano, a psychologist who had frequently testified on this issue while employed by the Texas Department of Criminal Justice. Dr. Quijano testified that although his testing confirmed that Anderson was indeed a dangerous individual, in his opinion the security in place at the Texas prison system would be able to prevent Anderson from committing acts of criminal violence while in prison, which would be Anderson's “society.”

In analyzing ineffective assistance claims, the Court presumes that counsel's decisions are reasonable. Strickland, 466 U.S. at 699. To rebut that presumption, an applicant must show that there is no reasonable strategy that the complained of action could have furthered. In the present case, the state court found that calling Dr. Quijano was the result of “a reasonable trial strategy of accepting that mental health experts had said and would continue to say that [Anderson] was a future danger but that Dr. Quijano would show the jury that he could be safely controlled in prison.” The record shows that the prosecution did attempt to use Dr. Quijano's opinion as to Anderson's general dangerousness to its advantage, but it also attempted to discredit his opinion as to the capacity of the Texas Department of Criminal Justice to prevent Anderson from committing dangerous acts.

Had the jury believed all of Dr. Quijano's testimony, it could have found that there was not a probability that Anderson would have committed acts of criminal violence which would constitute a continuing threat to society. Accordingly, the Court finds that the state court was not unreasonable in finding that offering his testimony was a reasonable trial strategy, and not deficient performance for purposes of the Strickland test.

Because the state court's rejection of Anderson's first claim was not the result of an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States in Strickland, the Court will grant the Director's motion for summary judgment as to this claim.

Anderson's second claim is that the cumulative effect of showing several gruesome crime scene photographs of the Cobbs' bodies was so unfairly prejudicial that it denied him a fair trial. This claim was adjudicated on the merits by the state court, and it involves a mixed question of law and fact, so the question for the Court is whether the state court's rejection of this claim was contrary to, or the result of an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.

The erroneous admission of evidence is generally considered a trial error, rather than a structural error. Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). To obtain relief on a trial error in habeas corpus, an applicant must show that the wrongly admitted evidence had a “substantial and injurious effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).

In the present case, in light of the strength of the other evidence against Anderson-his confession to his sister, his semen being found in Mrs. Cobb's body, his having possession of the Cobb's automobile and other personal property, and his having been seen driving the vehicle away from the Cobb's house as it was burning-the Court finds that the admission of the photographs, assuming arguendo that they were improperly admitted, did not have a substantial and injurious effect or influence in determining the jury's verdict that he was guilty of capital murder. Because the state court's rejection of Anderson's second claim was not an unreasonable application of clearly established federal law, as determined by the Supreme Court in Brecht, the Court will grant the Director's motion for summary judgment as to this claim.

Anderson's third and fourth claims are that improper statements by the prosecutor in his closing argument denied him (Anderson) a fair trial. These claims were adjudicated on the merits by the state court, and involve mixed questions of law and fact, so the question for the Court is whether the state court's rejection of these claims was contrary to, or the result of an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.

Like the erroneous admission of photographs, improper prosecutorial argument is generally considered a trial error, rather than a structural error. See Tankleff v. Senkowski, 135 F.3d 235, 251 (2d Cir.1998). To obtain relief on a trial error in habeas corpus, an applicant must show that the wrongly admitted evidence had a “substantial and injurious effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); Tankleff, 135 F.3d at 251.

Anderson's third claim concerns two statements made within the same argument. Anderson's defense was that although he did sexually assault Mrs. Cobb, someone else killed her and her husband. The prosecutor stated: “Who is this other person? Does anyone know? We don't. And the defense never once-“ At that point, the defense objected on the grounds that the prosecutor was improperly talking about his own personal knowledge. The trial court sustained the objection and instructed the jury to disregard the remark. Shortly afterwards, the prosecutor stated: “But I'll tell you this: Don't think for a minute that the State of Texas believes that there is another person-“ The defense again objected, and the trial court again sustained the objection and instructed the jury to disregard the statement.

These two comments constituted improper statements of personal opinion or belief. In light of the trial court's curative instruction, however, and in light of the evidence that Anderson confessed to his sister, coupled with the lack of any evidence that another person was involved, the Court finds that the prosecutor's improper vouching did not have a substantial and injurious effect or influence on the jury's determination of its verdict that Anderson was guilty of capital murder. The Court finds that state court's rejection of Anderson's third claim was not based upon an unreasonable application of clearly established federal law, as determined by the Supreme Court in Brecht.

Anderson's fourth claim concerns an attack on the character of his defense counsel and on his right to remain silent. The prosecutor stated: “[D]o you think in this case that the defense would have ever admitted that he was even in the house in the first place if ... the Cobb's 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 her and admitted that the defendant sexually assaulted Bertha Cobb if his semen had not been in her vaginal cavity? There is no honor in what they did. They did it-“ At this point the defense objected, and the Court again sustained the objection and instructed the jury to disregard the statements.

A prosecutor may not attack a defendant's choice to not testify, although he may point out that a defendant's testimony is not entitled to greater weight, simply because he waived his right to remain silent. United States v. Thompson, 422 F.3d 1285, 1299 (11 Cir.2005).

In the present case, however, 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. Such a statement not only unfairly criticizes the defendant and his counsel, it disparages the right to remain silent itself.

As shameful as this comment was, the test for habeas corpus purposes is whether it had a substantial and injurious effect or influence on the jury's determination of its verdict that Anderson was guilty of capital murder. Again, in light of the trial court's curative instruction and the strong evidence of Anderson's guilt, the Court finds that the Prosecutor's comment did not have a substantial and injurious effect or influence on the jury's determination of its verdict.

The state court's rejection of Anderson's fourth claim was not based upon an unreasonable application of clearly established federal law, as determined by the Supreme Court in Brecht. Because the Court finds that the state court's rejection of Anderson's third and fourth claims was reasonable, it will grant the Director's motion for summary judgment as to both claims.

Anderson's fifth claim is that the use of undefined and vague terms in the special sentencing issues denied him the due process of law. This claim was adjudicated on the merits by the state court, and it involves a pure question of law, so the question for the Court is whether the state court's rejection of this claim was contrary to, or the result of an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.

As explained in the analysis of Anderson's first claim, in order to sentence Anderson to death the jury had to find, inter alia, that there was a probability that he would commit criminal acts of violence which would constitute a continuing threat to society. See Tex.Code Crim. Proc. Art. 37.071 § 3(b)(1). Anderson contends that the terms “probability,” “criminal acts of violence,” and “continuing threat to society,” which were not defined for the jury, are so vague that they do not allow juries to make a rational distinction between those capital murderers who deserve the death penalty from those who do not.

Anderson is correct that the Supreme Court of the United States has held that “aggravating circumstances,” which narrow the class of capital murderers eligible for execution, may not leave unlimited discretion to the jury. See Godfrey v. Georgia, 446 U.S. 420, 427, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). He fails to acknowledge, however, that the Supreme Court has twice discussed the Texas “future dangerousness” special issue in this context, and did not strike it down. See, e.g., Jurek v. Texas, 428 U.S. 262, 279, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) (White, J., concurring); Pulley v. Harris, 465 U.S. 37, 50 n. 10, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984).

Although not definitive of the provision's constitutionality, these two opinions foreclose any finding that the state court's rejection of Anderson's fifth claim was either contrary to, or an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States. The Court will grant the Director's motion for summary judgment as to Anderson's fifth claim.

Anderson's sixth claim is that the trial court's failure to inform the jury of the effect of a non-unanimous verdict as to any of the special sentencing issues denied him the due process of law. This claim was adjudicated on the merits by the state court, and it involves a pure question of law, so the question for the Court is whether the state court's rejection of this claim was contrary to, or the result of an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. Anderson relies on two precedents: Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988) and McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990).

In those cases, the Supreme Court struck down jury instructions which required that jurors unanimously agree as to the existence of a particular mitigating circumstance. The Court was concerned about the possibility that all twelve jurors would agree that a defendant's life should be spared, but because they felt that way for slightly different reasons, their verdict as to any one reason would not be unanimous and the defendant's life would not be spared.

Anderson, however, does not contend that the jury in his case was misled into thinking that it had to agree unanimously as to the specific mitigating circumstance. His complaint is that the jury in his case should have been informed that a less than unanimous vote on the first two special sentencing issues, for example, a vote of 11-1 that he would be dangerous in the future, would result in his receiving a life sentence.

The Court agrees with the United States Court of Appeals for the Fifth Circuit that the situation the Supreme Court considered in Mills and McKoy is too dissimilar to the situation Anderson is complaining about to be comparable. See e.g. Hughes v. Johnson, 191 F.3d 607, 628-29 (5 Cir.1999), cert. denied, 528 U.S. 1145, 120 S.Ct. 1003, 145 L.Ed.2d 945 (2000). The Court cannot find that the state court's rejection of Anderson's sixth claim was contrary to, or an unreasonable application of, the law established by the Supreme Court in those two precedents, so it will grant the Director's motion for summary judgment as to this claim.

Anderson's seventh claim is that not requiring that the statutory aggravating factors be alleged in the indictment denied him the due process of law. This claim was adjudicated on the merits by the state court, and it involves a pure question of law, so the question for the Court is whether the state court's rejection of this claim was contrary to, or the result of an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.

In Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court of the United States held that any fact which increases the penalty for a crime beyond the prescribed statutory maximum must be alleged in the indictment. Anderson contends because a conviction of capital murder in Texas results in a sentence of life imprisonment unless the State establishes the special sentencing issues, those issues “enhance” the punishment for capital murder from life imprisonment to death.

Although this statement is correct, it does not mean that the penalty of death is not prescribed as the maximum punishment in the Texas statutory scheme. Tex. Penal Code § 19.03 states that capital murder is a “capital felony.” Tex.Code Crim. Proc. Art. 37.071, titled “procedure in capital cases,” provides that the state may choose to seek a sentence of death for any capital felony. This statutory scheme establishes that the death penalty is within, not beyond, the prescribed statutory maximum punishment for capital murder in Texas.

The facts at issue in the Texas special sentencing issues, therefore, do not increase the penalty for capital murder in Texas beyond the maximum punishment provided by statute. Because the state court's rejection of Anderson's seventh claim was not contrary to, or the result of an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States in Apprendi, the Court will grant the Director's motion for summary judgment as to this claim.

Anderson's eighth claim is that requiring him to bear the burden of proof on the mitigation special sentencing issue denied him the due process of law. This claim was adjudicated on the merits by the state court, and it involves a pure question of law, so the question for the Court is whether the state court's rejection of this claim was contrary to, or the result of an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.

In Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the Supreme Court of the United States held that the aggravating factors in a capital murder sentencing trial must be determined by a jury and must be established by the prosecution beyond a reasonable doubt. Under the law in effect at the time of Anderson's sentencing hearing, for Anderson to be sentenced to death the jury had to find: 1) that there was a probability that he would commit acts of criminal violence which would constitute a continuing threat to society, 2) that Anderson actually killed the victims, intended to kill the victims, or anticipated that victims' lives would be taken, and 3) that there were no mitigating circumstances which would warrant imposing a sentence of life imprisonment, rather than death. See Tex.Code Crim. Proc. § 37.071 (West 2004). Anderson contends that his constitutional rights under the Sixth, Eighth and Fourteenth Amendments are violated because he had the burden of establishing the existence of mitigating circumstances, instead of the prosecution's having the burden to disprove the existence of mitigating circumstances beyond a reasonable doubt.

In Apprendi, the Supreme Court distinguished between facts in aggravation of punishment and facts in mitigation, see 530 U.S. at 490 n. 16, and in Ring, the Supreme Court explicitly noted that the case did not present the issue of mitigating circumstances. See 536 U.S. at 597 n. 4. That the Supreme Court has twice explicitly left open the question of whether facts in mitigation in a capital case need to be proved beyond a reasonable doubt shows that it has not clearly established the law as to this issue. Because the Supreme Court has not yet clearly established the law as to this issue, the state court's rejection of Anderson's eighth claim cannot be either contrary to, or the result of an unreasonable application of, clearly established federal law, as determined by the Supreme Court. The Court will grant the Director's motion for summary judgment as to this claim.

Anderson's ninth claim is that his appellate counsel's failure to raise his second through seventh claims on direct appeal constituted ineffective assistance. This claim was adjudicated on the merits by the state court, and it involves a mixed question of law and fact, so the question for the Court is whether the state court's rejection of this claim was contrary to, or the result of an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.

The substantive legal standards for a claim of ineffective assistance of counsel on appeal are the same as the standards for trial counsel; a petitioner must establish both that (1) counsel's performance was deficient, and (2) had counsel performed adequately, there is a reasonable probability that the result in his case would have been different. Styron v. Johnson, 262 F.3d 438, 450 (5 Cir.2001), cert. denied, 534 U.S. 1163, 122 S.Ct. 1175, 152 L.Ed.2d 118 (2002), citing Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

In the present case, appellate counsel stated that he chose not to raise these issues before the Texas Court of Criminal Appeals because that court had consistently rejected them in the past, and he believed that raising them might irritate or distract the judges and thus make them less willing and/or able to seriously consider the three issues he did raise. The state court found that this strategy was reasonable, and thus found that counsel had not rendered deficient performance. Anderson contends, however, that his counsel should have considered that he was waiving the ability to have these issues considered by the Supreme Court of the United States on certiorari review, where they were more likely to prevail than either before the state court, or before this Court on habeas corpus review.

The Court agrees with Anderson, particularly considering that the state courts often rule-and the Director often argues before this court-that the failure to raise issues on direct appeal precludes their being considered in state and federal post-conviction proceedings. Anderson's appellate counsel's failure to weigh the possibilities of waiver and of facing more difficult standards of review was unreasonable, and this meets the first prong of the Strickland test.FN1

To meet the second prong of the Strickland test, however, Anderson must establish that there is a reasonable probability that, had his counsel raised those six issues on direct appeal, the Supreme Court of the United States would have granted relief on at least one of them. Anderson provides neither evidence nor argument to support this proposition, so the Court will grant the Director's motion for summary judgment as to Anderson's ninth claim.

FN1. To the extent that the state court's findings to the contrary (see SHR pp. 192-193, Nos. 7, 9, and 13) may be considered findings of fact, the Court finds that they have been rebutted by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

Anderson's tenth claim is that the unfettered discretion provided the State in deciding whether to seek the death penalty denies him (and all other capital murder defendants) due process of law and the equal protection of the laws, and constitutes cruel and unusual punishment.

This claim was adjudicated on the merits by the state court, and it involves a pure question of law, so the question for the Court is whether the state court's rejection of this claim was contrary to, or the result of an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. Because Anderson cited no legal authority whatsoever to support his tenth claim, much less any clearly established federal law as determined by the Supreme Court,FN2 the Court will grant the Director's motion for summary judgment as to this claim.

FN2. Anderson argued that the lack of standards resulted in different standards being used in different counties, which violated his right to the equal protection of the laws. The Court notes that the Supreme Court accepted a somewhat similar argument in Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000), but that Court stated in its opinion that the reasoning in the case could not be used in other cases.

Anderson's eleventh claim is that the trial court's failure to grant a mistrial after it struck the testimony of the State's risk assessment expert denied him a fair trial. This claim was presented to the state court on direct appeal, but the state court refused to adjudicate the merits of the claim because counsel did not preserve the error at trial. See Anderson v. State, No. 73,829, slip op. at 6.

Because the state court refused to reach the merits of this claim due to Anderson's violating a state procedural rule, the Court will likewise refuse to address the merits of the claim unless Anderson can establish either (a) that he had good cause for failing to exhaust his claim and he would be prejudiced if the federal court did not consider the merits of his claim, or (b) failing to address the merits of his claim would result in a fundamental miscarriage of justice, because he is actually innocent.

The Director raised this procedural default defense in his motion for summary judgment. In response, Anderson did not allege that either the cause/prejudice or fundamental miscarriage of justice exceptions applied. Accordingly, the Court will grant the Director's motion for summary judgment as to Anderson's eleventh claim.

Anderson's twelfth and final claim is that the cumulative effect of the above errors denied him the due process of law, even if no one error was sufficiently egregious, by itself, to do so. This claim was adjudicated on the merits by the state court, and it involves a mixed question of law and fact, so the question for the Court is whether the state court's rejection of this claim was contrary to, or the result of an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. In Kyles v. Whitney, 514 U.S. 419, 436, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), the Supreme Court of the United States held that the cumulative effect of constitutional errors could be significant even though the effect of each individual error was not. The test is whether the accumulated errors had a “substantial and injurious effect or influence in determining the jury's verdict.” See Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).

As explained above, in this case the Court found two and assumed a third error occurred at trial (the trial court's admission of more crime scene photographs than were necessary and two instances of improper prosecutorial argument.) The Court also found an error by Anderson's counsel on appeal (failing to consider the consequences of not raising several non-frivolous claims on direct appeal,) but because this error could not have affected the jury's determination of its verdict, this error will not be considered.

As previously noted, in light of the strong evidence of guilt in this case-the presence of Anderson's semen in the vaginal cavity of one of the victims, his possession of a large quantity of the victims' property, and his confession to his sister that he killed the victims-the Court finds that the three errors, in combination, did not have a substantial and injurious effect or influence in determining the jury's verdict. The Court will grant the Director's motion for summary judgment as to Anderson's twelfth and final claim.

Conclusion

Because the Court finds that the Director is entitled to judgment on all twelve of Anderson's claims, it will grant his motion in its entirety. A separate order and judgment will be entered.

Anderson v. Quarterman, Slip Copy, 2006 WL 3147544 (5th Cir. 2006) (Habeas).

Background: State prisoner filed petition for writ of habeas corpus, challenging his capital murder conviction and death sentence. The United States District Court for the Eastern District of Texas, 2006 WL 156989, denied petition, but granted a certificate of appealability.

Holdings: The Court of Appeals, Edith Brown Clement, Circuit Judge, held that:

(1) decision by state court, that counsel was not ineffective by permitting expert to testify that prisoner would likely be a continuing threat to society if he were not in confinement, did not warrant federal habeas relief;
(2) even assuming it was error to admit photographs that were disturbing and bloody depictions of murder victims in a burned house, admission did not warrant habeas relief;
(3) prosecutor's inappropriate statements did not have a substantial and injurious effect or influence in determining the jury's verdict;
(4) special issues submitted to jury, as mandated by Texas capital murder sentencing scheme, were not vague as to violate the Eighth Amendment;
(5) state court did not act unreasonably in denying habeas relief based on claim that direct appeal counsel was ineffective; and
(6) no Supreme Court or Fifth Circuit precedent forbid discretion granted to prosecutors under Texas death penalty statute. Affirmed.

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 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 Tex. Penal Code § 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 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.

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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, 466 U.S. 648, 655, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (internal quotation omitted). To succeed on an ineffective assistance claim, Anderson must demonstrate that (1) his counsel's performance “fell below an objective standard of reasonableness” and (2) that the “deficient performance prejudiced the defense.” See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Prejudice to the defense means that “counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687, 104 S.Ct. 2052. There is an initial presumption that counsel's decisions are reasonable. Id. at 689, 104 S.Ct. 2052. Deficient representation occurs when “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S.Ct. 2052. Only if the petitioner can show that the state court was unreasonable in determining that this action could have furthered a reasonable strategy may assistance be found to be ineffective. See Duff-Smith v. Collins, 973 F.2d 1175, 1183 (5th Cir.1992) (noting that failure to present any mitigating evidence was not ineffective assistance, but was instead a “reasoned trial strategy” and “not defective within the meaning of Strickland ”).

The state habeas court found that “Defense trial counsel made a reasonable trial strategy of accepting that mental health experts had said and would continue to say that Applicant was a future danger but that Dr. Quijano would show the jury that he could safely be controlled in prison.”

Anderson argues that this was not a reasonable trial strategy and 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 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, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (internal quotation omitted). Only if the 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 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, 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 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, 501 U.S. 808, 825, 111 S.Ct. 2597, 115 L.Ed.2d 720 (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.” Neal v. Cain, 141 F.3d 207, 214 (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 sister, his semen found 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 this 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 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 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, 888 F.2d 24, 26-27 (5th Cir.1989) (reversing a conviction because of improper statements by the prosecutor). “The test applied to determine whether a trial error makes a trial fundamentally unfair is whether there is a reasonable probability that the verdict might have been different had the trial been properly conducted.” Kirkpatrick v. Blackburn, 777 F.2d 272, 278-79 (5th Cir.1985).

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, 113 S.Ct. 1710, 123 L.Ed.2d 353 (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, 420 F.3d 479, 499 (5th Cir.2005) (noting that “a timely objection and request for a curative instruction would have mitigated the prejudice generated by the prosecutor's [improper] invocation”); see also Derden v. McNeel, 938 F.2d 605, 622 (5th Cir.1991) (Jones, J., dissenting) (“[T]he trial judge's curative instructions to the jury with respect to the two instances of alleged prosecutorial misconduct significantly reduced the risk 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 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 Tex.Code Crim. 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. Stephens, the Supreme Court noted that statutory aggravating factors “circumscribe the class of persons eligible for the death penalty.” 462 U.S. 862, 878, 103 S.Ct. 2733, 77 L.Ed.2d 235 (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, 100 S.Ct. 1759, 64 L.Ed.2d 398 (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, 987 F.2d 1116, 1120 (5th Cir.1993) (holding that the terms “deliberately,” “probability,” “criminal acts of violence,” and “continuing threat to society” “have a common-sense core of meaning that criminal juries should be capable of understanding”) (internal quotation omitted); see also Hughes v. Johnson, 191 F.3d 607, 615 (5th Cir.1999); Woods v. Johnson, 75 F.3d 1017, 1033-34 (5th Cir.1996). As these cases foreclose 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 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, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), and McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990).

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.” 191 F.3d at 629. Previously, in Jacobs v. Scott, the court noted that “the law in Texas is completely different from that in Mills.” 31 F.3d 1319, 1328 (5th Cir.1994) (holding that this claim was procedurally barred but also was “meritless”). 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 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 v. New Jersey, 530 U.S. 466, 476, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), any fact that increases the penalty for a given crime beyond the statutory maximum must be alleged in the indictment and proven at trial beyond a reasonable doubt. Apprendi does not require that the special sentencing issues for the death penalty be pleaded in the indictment. 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 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, 530 U.S. at 494 n. 19, 120 S.Ct. 2348; see also Rowell v. Dretke, 398 F.3d 370, 379 (5th Cir.2005) (“[N]o Supreme Court or Fifth Circuit authority requires the State to prove the absence of mitigating circumstances beyond a reasonable doubt.”). We reject these grounds for relief.

G. Ineffective assistance of counsel on direct appeal

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, 466 U.S. at 687-88, 104 S.Ct. 2052. Appellate counsel explained at the state court hearing on the writ of habeas corpus that it would have been a waste of time to argue other issues.

In addition, it might potentially have aggravated the appellate court to have to read about insignificant issues, thereby making it less likely that Anderson would win on the significant issues. Anderson points out, however, that his counsel should have considered the possibility of waiver in not raising these arguments.

The district court agreed with Anderson and found that he had satisfied the first prong of Strickland, namely that counsel's performance fell below 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 that 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 to raise these issues did not prejudice Anderson. Anderson further argues, however, that “[i]t was reasonably probable 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 that the Texas death penalty statute violates 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 Fifth Circuit precedent forbidding such discretion, and we have 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. Johnson, 194 F.3d 641, 652 (5th Cir.1999) (“[The] Texas contemporaneous objection rule constitutes an adequate and independent state ground that procedurally 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 either ‘cause’ and actual ‘prejudice,’ or that he is ‘actually innocent.’ ” Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (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 innocence. He admits as much in his appellate brief, stating that his only suggested ground for cause was “not directly briefed as cause for the default.” As such, the district court properly refused to consider this issue on the merits.FN1 We reject this ground for relief.

J. Cumulative effect of errors

Anderson finally argues that, even if none of the individual errors alleged necessitate reversal, the cumulative effect of these errors does. In Kyles v. Whitley, the Supreme Court recognized that the cumulative effect of errors, none of which individually are significant, could be collectively significant. 514 U.S. 419, 436-37, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).

The state habeas court rejected this argument, finding that “the cumulation of any mere trial error did not amount to federal constitutional harm” and “that the cumulation of errors did not amount to a deprivation of due process.” We do not hold that this conclusion was an unreasonable determination 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 petition for a writ of habeas corpus is AFFIRMED.