                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                             CORRECTED                        June 28, 2005
               IN THE UNITED STATES COURT OF APPEALS     Charles R. Fulbruge III
                       FOR THE FIFTH CIRCUIT                     Clerk



                           No. 03-41551
                         Summary Calendar



ALTON L. KESSLER,

                                    Petitioner-Appellant,

versus


DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                    Respondent-Appellee.


                      ---------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 6:03-CV-262
                      ---------------------

Before JONES, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Alton L. Kessler, a Texas prisoner (# 909358), appeals from

the magistrate judge’s denial of his 28 U.S.C. § 2254 habeas

corpus petition, in which Kessler challenged his 2000 jury-trial

conviction of the aggravated sexual assault of his step-daughter,

Kelsey.   The jury assessed a sentence of 99 years in prison and

a $10,000 fine.   The magistrate judge granted Kessler a

certificate of appealability (“COA”) on the issues “(1) whether


     *
       Pursuant to 5TH CIR. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
                           No. 03-41551
                               - 2 -

Kessler was denied due process or a fair trial through the

introduction of extraneous offenses at trial, and (2) whether

Kessler received ineffective assistance of counsel when his

attorney failed to object to the introduction of extraneous

offenses at trial.”   This court expanded the COA to include a

claim that counsel performed ineffectively by failing to seek a

limiting instruction on the extraneous-offense evidence.

     Federal habeas relief may not be granted upon any claim that

was “adjudicated on the merits in State court” unless the

adjudication “resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States.”   28 U.S.C. § 2254(d)(1); see Williams v. Taylor, 529

U.S. 362, 409 (2000).

     The Texas Court of Appeals’ unpublished opinion on direct

appeal reported that the trial evidence showed that Kelsey, who

was six at the time of the offense, described several occasions

during which Kessler asked her to perform oral sex on him.

Kelsey’s mother and her brother, Joseph, observed Kelsey

performing oral sex on him.

     Other trial evidence reflected that Kessler, his wife Julie,

and her three children were members of a nudist “ranch.”    At the

time of trial, Julie had already pleaded guilty to the aggravated

assault of Joseph, who was only seven or eight years old at the

time, and had been sentenced to 15 years in prison.   The

testimony of Julie, an admitted abuser of methamphetamines, and

of Kelsey and Joseph, indicated that both Kessler and Julie
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                               - 3 -

regularly committed sexual acts with both of Julie’s older

children, as well as with each other and a variety of people from

outside the household, often in plain view of other family

members.   The evidence also included testimony about extraneous

offenses and acts, including drug use; masturbation; unusual

sexual practices; the use of bad language; domestic violence

against Julie; the open presence of pornography, handcuffs, and

chains in the household; the harboring of a juvenile runaway;

Kessler’s having given Julie a “nympho sex slave diploma”; and

Kessler’s and Julie’s having given Kelsey her own vibrator.

     Kessler argues that his trial counsel should have objected

to this extraneous evidence as irrelevant and prejudicial, and

that he should have requested limiting instructions with respect

to its use at trial.   Kessler fails to acknowledge that, under

TEX. CODE. CRIM. PROC. art. 38.37 § 2, such extraneous evidence is

more often admissible in cases involving sexual assaults of

children, notwithstanding Texas’s normal rules of evidence.     See,

e.g., O’Canas v. State, 140 S.W.3d 695, 698 (Tex. App. 2004)

(permitting evidence of exposure of child victim to “corrupt

lifestyle”); McCoy v. State, 10 S.W.3d 50, 54 (Tex. App. 1999)

(art. 38.37 effectively supersedes prior precedent holding that

“background” evidence is not admissible).   Although it is

possible that certain evidence introduced at Kessler’s trial was

inadmissible even under the expanded standard of art. 38.37,

Kessler has not demonstrated that counsel performed deficiently

by making a strategic decision to refrain from making repetitive

objections to such evidence, see United States v. Haese, 162 F.3d
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                                 - 4 -

359, 364 (5th Cir. 1998) (28 U.S.C. § 2255 case) (citing

Strickland v. Washington, 466 U.S. 668, 689 (1984)), or by

declining to call additional attention to such evidence by

seeking limiting instructions.     See, e.g., Ali v. State, 26

S.W.3d 82, 87 (Tex. App. 2000).    Kessler also has not established

that he was prejudiced by counsel’s failures, because he has not

shown that such objections or limiting instructions would have

resulted in a different outcome at trial.     See Strickland, 466

U.S. at 692.   Kessler has not shown that the state courts

unreasonably applied federal law in rejecting these ineffective-

assistance claims.     See 28 U.S.C. § 2254(d)(1).

     Although the magistrate judge granted Kessler a COA on the

substantive issue “whether Kessler was denied due process or a

fair trial through the introduction of extraneous offenses at

trial,” a review of the record reflects that Kessler did not

raise such a substantive claim in the district court, either in

his 28 U.S.C. § 2254 petition or his lengthy reply brief.

Notwithstanding the COA, such claim is not properly before this

court on appeal.     See Roberts v. Cockrell, 319 F.3d 690, 695 (5th

Cir. 2003).

     The judgment is AFFIRMED.
