UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT


                        _______________________

                              No. 99-50338
                            Summary Calendar
                      Lower Court No. W-97-CV-110
                        _______________________


JOE EARLE HUFFMAN,

                                                    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 Western District of Texas
_________________________________________________________________
                           July 11, 2001

Before DAVIS, JONES, and DeMOSS, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

           This court granted COA to consider whether appellant

Huffman’s constitutional rights were violated when the prosecutor

at his separate trials for aggravated robbery and murder in March

and May, 1990 used extensive Biblical questions as part of his



     *
            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opinion should not be published and is not precedent except under the limited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.
closing argument.1           The Texas courts denied relief on the claim.

Finding that they did not unreasonably apply clearly established

federal law, pursuant to the federal habeas review standard set

forth at 28 U.S.C. § 2254(d), we likewise reject appellant’s

argument and affirm the denial of his habeas petition.

               Huffman was convicted of murder for shooting security

guard Odie Sapp at a private plant, after Sapp offered Huffman

shelter from a storm.           Huffman was then escaping from the Milam

County jail where he had been incarcerated on aggravated robbery

charges. The prosecutor’s challenged argument was delivered in the

first part of his closing remarks at the trial’s punishment phase.

The argument, which we carefully reviewed, quotes the story of the

Good       Samaritan   and    extensive   parts   of    the   Ten   Commandments.

Defense counsel levied no objection to the argument, but he did

mention to the jury that the Biblical references had little to do

with questions of punishment.             Later, the defense lawyer observed

that Jesus would not have viewed Huffman as a “thing.”                        The

rebuttal       phase    of    the   prosecutor’s       argument     was   entirely

substantive, was as long as his earlier remarks, and was devoid of

Biblical or religious references. It emphasized that since the age

of 16 (Huffman was 32 at the time of trial), he had spent nearly

all of his life in prison or on probation or parole and had six



       1
            Although there is no transcript of closing argument in the aggravated
robbery case, we accept petitioner’s representation, as did the district court,
that the prosecutor argued similarly in both cases.

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prior, felony convictions.    Huffman’s lengthy criminal record, the

prosecutor asserted, showed his inability or unwillingness to

reform. Although Huffman was exposed to a potential 99-year prison

term, the jury sentenced Huffman to 80 years.

           In the aggravated robbery trial, the punishment phase

responsibility of the jury was limited to finding whether the

habitual offender charges against Huffman were accurate.         When the

jury so found, Huffman was automatically sentenced to life in

prison.   Thus, the prosecutor’s argument could not have materially

affected the sentencing decision.         We agree with the state’s

contention that no ground for relief is stated on this contention.

           Turning back to the murder conviction, the state does not

defend the prosecutor’s argument, though it asserts his remarks

were not as egregious as those in the other cases where appeals to

Biblical justice rather than law have been held objectionable.

See, e.g., United States v. Steinkoetter, 

, 721 (6th

Cir. 1980); Bennett v. Angelone, 

(4th Cir. 1996).         The

general rule is that improper prosecutorial argument will not

vitiate a conviction unless the “comments so infected the trial

with unfairness that there is a reasonable probability that the

result would   have   been   different   if   the   proceeding   had   been

conducted properly.”    Jackson v. Johnson, 

, 653 (5th

cir. 1999) (internal citation omitted).       Whether one characterizes

the remarks in this case as merely improper or egregious, however,



                                   3
we cannot agree that Huffman’s sentence hearing lacked fundamental

fairness.

            Taking   all   the   circumstances   of   his   crime   and   his

criminal record into consideration, the fact that Huffman received

less than a 99-year sentence shows an exercise of mercy by the

jury.   Moreover, the prosecutor’s argument was unobjected-to at

trial, suggesting defense counsel’s view that it wasn’t fatally

harmful, and the defense counsel countered the prosecutor with his

own allusion to Jesus. The state courts did not unreasonably apply

the due process clause and applicable precedent in concluding that

Huffman was not denied his constitutional rights by the improper

portion of the prosecutor’s argument.

            The judgment of the district court is AFFIRMED.




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