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.

                        - - - - - - - - - -
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 6:97-CV-203
                        - - - - - - - - - -

                         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that this opinion should not be published and is not precedent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.
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