                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                September 1, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 03-40724
                         Summary Calendar



JAMES BRYAN ORTEZ,

                                    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. 4:99-CV-246
                       --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     James Bryan Ortez, Texas prisoner #778260, was granted a

certificate of appealability (COA) after it was decided that

jurists of reason would find it debatable whether the district

court was correct in dismissing his prosecutorial-misconduct

claims as procedurally barred.   The district court determined

that all seven of Ortez’s claims of prosecutorial misconduct were

barred under the Texas contemporaneous-objection rule.      Our


     *
       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this opinion should not be published and is not precedent except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. 03-40724
                                -2-

review of the district court’s determination is de novo.     See

Boyd v. Scott, 45 F.3d 876, 877 (5th Cir. 1994).

     “A federal court will not review a question of federal law

decided by a state court if the decision of that state court

rests on a state ground that is both independent of the merits of

the federal claim and adequate to support that judgment.”     Amos

v. Scott, 61 F.3d 333, 338 (5th Cir. 1995).   “The Texas

contemporaneous objection rule constitutes an adequate and

independent state ground that procedurally bars federal habeas

review of a petitioner’s claims.”   Jackson v. Johnson, 194 F.3d

641, 652 (5th Cir. 1999) (internal quotation marks omitted).

     “[I]n order to fulfill the independence requirement, the

last state court rendering a judgment must ‘clearly and

expressly’ indicate that its judgment rests on a state procedural

bar.”   Glover v. Cain, 128 F.3d 900, 902 (5th Cir. 1997).

Although the state habeas court’s order did not specify which

claims of prosecutorial misconduct were procedurally defaulted,

the court clearly and expressly relied on the bar.

     A review of the record reveals that no objection was made

concerning Ortez’s claim that the prosecutor (1) commented on his

failure to testify; (2) repeatedly used the word “rape” to

inflame the jury; (3) made an improper closing argument;

(4) elicited testimony of other bad acts and referred to those

acts in her closing argument; (5) improperly alerted the jury

panel to his previous convictions during the voir dire; and (6)
                             No. 03-40724
                                  -3-

referred to him as a “serial rapist” during the punishment phase.

Ortez must thus overcome the procedural bar in order to obtain

review of these claims.    See Styron v. Johnson, 262 F.3d 438, 454

(5th Cir. 2001).

      In order to overcome the procedural bar, Ortez must

“demonstrate cause for the default and actual prejudice as a

result of the alleged violation of federal law, or demonstrate

that failure to consider the claims will result in a fundamental

miscarriage of justice.”    Coleman v. Thompson, 501 U.S. 722, 750

(1991).    Ortez suggests that he has “cause” for his procedural

default because of “the failure of defense counsel to

contemporaneously object or otherwise preserve the errors for

review.”

      Although an attorney’s failure to make objections may

constitute “cause” for a procedural default, the petitioner must

show that counsel’s failure to object amounted to ineffective

assistance of counsel.     Cotton v. Cockrell, 343 F.3d 746, 754

(5th Cir. 2003), cert. denied, 124 S. Ct. 1417 (2004).      Ortez

thus must “show that his counsel’s performance was deficient and

that he was actually prejudiced by the deficient performance.”

Id.   He “must show that the prejudice rendered the trial

fundamentally unfair or unreliable.”     Id.   (internal quotation

marks omitted).    Ortez fails to make such a showing.

      Ortez also fails to show a risk of a fundamental miscarriage

of justice.    See Coleman, 501 U.S. at 750.   To make such a
                             No. 03-40724
                                  -4-

showing, Ortez must demonstrate that he is actually innocent of

the offense.     See Murray v. Carrier, 477 U.S. 496, 478 (1986).

     In affirming Ortez’s conviction, the state appellate court

noted that the victim, who was 14 years old at the time of the

assault, was brought to the hospital for an examination after the

assault.    The hospital examination revealed Ortez’s semen on the

victim’s vaginal swab, panties, and jeans.     The victim testified

that she did not consent to having sex with Ortez.    There was no

fundamental miscarriage of justice.     See Murray, 477 U.S. at 478.

The district court did not err in its determination that six of

Ortez’s seven prosecutorial-misconduct claims were procedurally

barred.

     Ortez’s counsel did object to the prosecutor’s allegedly

improper questioning of the victim’s step-mother.    Accordingly,

that claim was not procedurally barred.     Nevertheless, the denial

of federal habeas relief may be affirmed on any ground supported

by the record.    Scott v. Johnson, 227 F.3d 260, 262 (5th Cir.

2000).

     In order to obtain habeas relief, Ortez must show that the

allegedly improper question rendered the trial fundamentally

unfair.    See Dowthitt v. Johnson, 230 F.3d 733, 755 (5th Cir.

2000).    Ortez acknowledges that the allegedly improper question

by the prosecutor did not concern either him or the victim, but

he argues that it was improper because it commented on the

integrity and credibility of the witness.    However, because the
                            No. 03-40724
                                 -5-

witness did not answer the question, the jury could not have made

any such inference.    Moreover, when the prosecutor objected to

the question, the trial court sustained the objection, and

instructed the jury to disregard the question.

       “Jurors are presumed to follow their instructions.”   Woods

v. Johnson, 75 F.3d 1017, 1036 n.29 (5th Cir. 1996).    Thus, any

possible prejudice that resulted from the prosecutor’s question

was cured by the trial court’s curative instruction.    Because

Ortez has not shown that the prosecutor’s unanswered question

rendered the trial fundamentally unfair, he is not entitled to

habeas corpus relief on his claim.    See Dowthitt, 230 F.3d at

755.    The judgment of the district court is

       AFFIRMED.
