          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                  FILED
                                                               January 26, 2009
                                No. 06-41475
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

PAUL ANTHONY ELLIS

                                           Petitioner-Appellant

v.

NATHANIEL QUARTERMAN, 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. 4:04-CV-80


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Paul Anthony Ellis, Texas prisoner # 1005652, has appealed the dismissal
of his petition for a writ of habeas corpus challenging his 2000 Texas conviction
of indecency with a child. Previously, we granted a certificate of appealability
as to the question whether Ellis’s trial was fundamentally unfair because the
prosecutors interjected their personal opinions about Ellis’s character and
discussed matters that were outside the record during closing arguments in the


      *
      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should not be published and is not precedent except under the limited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. 06-41475

punishment phase of the trial and because the trial court refused to declare a
mistrial. Ellis v. Quarterman, No. 06-41475 (Jan. 15, 2008) (unpublished; single-
judge order).
      The certified question was rejected by the state appellate court on direct
appeal on state-law grounds. The district court must defer to the state court’s
adjudication unless the state court’s adjudication was “contrary to” clearly
established federal law as determined by the Supreme Court. Miniel v. Cockrell,
339 F.3d 331, 336-37 (5th Cir. 2003); 28 U.S.C. § 2254(d)(1), (2). “A state court’s
decision is deemed contrary to clearly established federal law if it reaches a legal
conclusion in direct conflict with a prior decision of the Supreme Court or if it
reaches a different conclusion than the Supreme Court based on materially
indistinguishable facts.” Miniel, 339 F.3d at 337. We review the district court’s
legal conclusions de novo. See Geiger v. Cain, 540 F.3d 303, 307 (5th Cir. 2008).
      The state court determined that the prosecutors made four improper
comments. The state court held that the trial court’s instructions to disregard
the comments had cured their prejudicial effect. Thus, the court held, the trial
court had not erred and it was not necessary for the court to consider whether,
in light of the record as a whole, the prosecutors’ argument had a substantial
and injurious effect or influence on the jury’s verdict. The state court held also
that error had not been preserved as to one of the improper comments. The
district court held that the state court’s determination was not contrary to
clearly established federal law as determined by the Supreme Court.
      Ellis contends that the prejudicial effect of the prosecutors’ improper
comments was exacerbated by their numerosity and persistence. He argues that
his life sentence was disproportionate. He complains that the prosecutors’
improper comments were intended to inflame the jury to induce it to impose a
harsher sentence than was merited under the circumstances of the offense.
      Also, Ellis must show that the prosecutors’ improper arguments “so
infected the penalty phase of the trial with unfairness as to make the resulting

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                                 No. 06-41475

sentence a denial of due process.” Barrientes v. Johnson, 221 F.3d 741, 753 (5th
Cir. 2000) (quotation marks and brackets omitted); see also Darden v.
Wainwright, 477 U.S. 168, 181 (1986). “[T]he burden is on the habeas petitioner
to also show a reasonable probability ‘that but for these remarks’ the result
would have been different.” Nichols v. Scott, 69 F.3d 1255, 1278 (5th Cir. 1995).
In determining whether the habeas applicant has shown a violation of his right
to due process, the court should consider whether the improper conduct was
persistent or pronounced and/or whether the evidence was insubstantial. Geiger,
540 F.3d at 308. “A curative instruction may reduce the risk of prejudice to the
defendant.” Hughes v. Quarterman, 530 F.3d 336, 347 (5th Cir. 2008). “[T]he
appropriate standard of review for such a claim on writ of habeas corpus is the
narrow one of due process, and not the broad exercise of supervisory power.”
Darden, 477 U.S. at 181 (quotation marks omitted).
      The prosecutors’ improper comments in the instant case involved state-law
violations only and were not of constitutional dimension. See Derden v. McNeel,
978 F.2d 1453, 1454, 1457-58 (5th Cir. 1992) (en banc). Under Derden habeas
applicants asserting denial of due process claims based on cumulative error must
refer to errors committed in the state trial court that were not procedurally
barred from habeas corpus review, that were of constitutional dimension, and
that, more likely than not, caused a suspect verdict in light of the record as a
whole. 978 F.2d at 1458; see also Turner v. Quarterman, 481 F.3d 292, 301 (5th
Cir.), cert. denied, 128 S. Ct. 34 (2007).    Moreover, the second comment
complained of by Ellis was responsive to arguments made by Ellis’s attorney
during his closing argument. See Darden, 477 U.S. at 182. Also, Ellis makes no
argument with respect to the state court’s determination that his due process
claim related to the third improper comment was procedurally barred. See
Turner, 481 F.3d at 301. Therefore, we have disregarded the second and third
comments in determining whether the prosecutors’ improper comments “infected


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the trial with unfairness.” See Darden, 477 U.S. at 181; see also Derden, 978
F.2d at 1458. Ellis is left with one prosecutor’s comment expressing his opinion
that Ellis was not a “person” and another prosecutor’s comment regarding the
fact that Ellis had received a probated sentence for which he was not eligible
with respect to a prior conviction.
      Ellis has not shown that the prosecutors’ improper comments “so infected
the penalty phase of the trial with unfairness as to make the resulting sentence
a denial of due process.” Barrientes, 221 F.3d at 753; see also Darden, 477 U.S.
at 181. Nor has he shown that the state court’s determination that the trial
court’s instructions to disregard the comments cured the prejudicial effect of the
improper comments was contrary to clearly established federal law as
determined by the Supreme Court. See Miniel, 339 F.3d at 336-37; see also
Hughes, 530 F.3d at 347. The judgment is AFFIRMED.




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