Clay v. Johnson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-41043
Summary Calendar
VERDELL CLAY,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:97-CV-203
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September 16, 1999
Before POLITZ, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Verdell Clay, Texas prisoner # 527757, appeals from the
district court’s denial of his petition for a writ of habeas
corpus, 28 U.S.C. § 2254. The district court granted Clay a COA
on the following of Clay’s arguments: 1) the evidence was not
sufficient to support the jury’s verdict convicting him of
possession of heroin; 2) the trial court erred in allowing the
introduction of testimony concerning extraneous offenses; and
*
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that this opinion should not be published and is not precedent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. 98-41043
-2-
3) the prosecutor made improper statements during closing
arguments.
We have reviewed the record, the briefs of the parties, and
the applicable law, and we find no reversible error. The
evidence was sufficient to support Clay’s conviction. See
Jackson v. Virginia, 443 U.S. 307, 319 (1979). Clay’s challenge
to the trial court’s evidentiary rulings on the admission of
testimony of extraneous acts does not present a cognizable habeas
claim because, even if erroneous, the court’s rulings did not
render Clay’s trial fundamentally unfair. See Pemberton v.
Collins, 991 F.2d 1218, 1226 (5th Cir. 1993). Similarly, even if
the prosecutor’s statements at closing were improper, Clay fails
to demonstrate that the misconduct was “persistent and pronounced
or that the evidence of guilt was so insubstantial that the
conviction would not have occurred but for the improper remarks."
Jones v. Butler, 864 F.2d 348, 356 (5th Cir. 1988).
We do not reach the other issues raised by Clay because the
only issues properly before this court are those on which the
district court granted the COA. See Lackey v. Johnson, 116 F.3d
149, 151-52 (5th Cir. 1997). The district court’s judgment
denying Clay’s habeas petition is AFFIRMED. Clay’s motion to
file a reply brief out of time is DENIED.
JUDGMENT AFFIRMED; MOTION DENIED.