Sammons v. Dretke ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 2, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-41236
Summary Calendar
LEON LEE SAMMONS,
Petitioner-Appellant,
versus
DOUGLAS DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6-02-CV-33
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Leon Lee Sammons, Texas prisoner # 896479, was convicted of
aggravated robbery by a jury and sentenced to 60 years in prison.
Sammons appeals the district court’s denial of his 28 U.S.C.
§ 2254 application. Sammons argues that the prosecutor commented
on his decision not to testify. Assuming that the argument was
a comment on Sammons’s failure to testify, the comment must be
viewed in the context of the trial and reversal is not warranted
*
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that this opinion should not be published and is not precedent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. 02-41236
-2-
unless the improper comment had a "clear effect on the jury."
United States v. Montoya-Ortiz, 7 F.3d 1171, 1179 (5th Cir.
1993). Curative instructions are considered in analyzing whether
an improper remark constitutes reversible error. See United
States v. Anchondo-Sandoval, 910 F.2d 1234, 1237 (5th Cir. 1990).
The trial court sustained the objection to the argument and
instructed the jury to disregard it. Juries are presumed to
follow the instructions of the court. See Zafiro v. United
States, 506 U.S. 534, 540-41 (1993). Additionally, the evidence
of Sammons’s guilt is overwhelming. Sammons has not shown that
the district court erred in concluding that the state court’s
denial of relief on this issue was contrary to clearly
established federal law or was based on an unreasonable
determination of the facts. 28 U.S.C. § 2254(d); Williams v.
Taylor, 529 U.S. 362, 409 (2000); Beazley v. Johnson, 242 F.3d
248, 255 (5th Cir. 2001).
Sammons moves for the appointment of appellate counsel.
Sammons represented himself adequately in having this court grant
his motion for a certificate of appealability (COA). His brief
on the issue of the prosecutor’s comment regarding his failure
to testify is more than adequate in presenting the claim.
See Schwander v. Blackburn, 750 F.2d 494, 502 (5th Cir. 1985).
Sammons’s motion for the appointment of counsel is DENIED.
AFFIRMED; MOTION DENIED.