Some killers leave thousands of pages of appeals behind them. These three left almost nothing, and this page collects what there is. Randall Woodfield, the man Oregon police called the I-5 Bandit for a run of robberies, rapes and killings along the interstate in 1980 and 1981, appealed his conviction for murder, attempted murder and two counts of first-degree sodomy. The Oregon Court of Appeals affirmed it on March 2, 1983, in an opinion of about fourteen hundred words, and the Oregon Supreme Court declined to review it. The question was identity. The surviving victim had described her attacker inconsistently, and the defense wanted to bring before the jury Lawrence Moore, convicted of the Oregon Museum Tavern murders in Salem, so that two paramedics could say he resembled a man they had seen running near the scene. The court held that the trial judge was right to refuse.
David Leonard Wood was convicted in El Paso of the murders of six young women who disappeared between May and August 1987 and were found in shallow graves in the desert northeast of the city; he was sentenced to death in 1993. The Fifth Circuit’s opinion of October 5, 2007, denying him leave to appeal the rejection of his federal habeas petition, sets out the evidence as the district court found it: witnesses who saw five of the women accepting rides from a man with a red Harley-Davidson or a beige pickup like his, orange fibers matched to a vacuum-cleaner bag from his old apartment, two jailhouse informants, and J.K., who testified that a man she identified as Wood drove her into the desert, tied her to his truck and dug a hole before something interrupted him. Wood has always said he is innocent, and his execution has been stayed since.
Joseph Kallinger, the Philadelphia shoemaker who with his young son terrorized families in three states in 1974 and 1975 and was convicted of murdering a nurse, Maria Fasching, in Leonia, New Jersey, appears only in three orders. In 1980 the New Jersey Supreme Court declined to hear his appeal. In 1992 the Supreme Court of Pennsylvania affirmed a Commonwealth Court order in a case the Department of Corrections brought against him and dismissed as moot an appeal involving Farview State Hospital, where he had been held, without saying in either what the dispute was. He died in custody in 1996.
Woodfield’s opinion is the only published appellate decision in his case, and it does not name the woman who survived, the women who died or the other crimes he was suspected of; it is about a single trial and a single question of identification. Wood’s is an opinion about whether he can appeal at all, so its statement of the facts is the district court’s summary of what the State proved, not a finding by the Fifth Circuit that it was true. Kallinger’s three entries are dispositions with no reasons, and they are printed whole because there is nothing more.
All five decisions are public records and may be reproduced in full. Moore, who was convicted of other murders and whose name is in the opinion because the defense sought to use it, keeps his name. In the Wood opinion we have given initials to J.K., the woman whose account of the desert became the State’s most important evidence of a pattern, and to the cellmates R.W. and J.S. The text is the Caselaw Access Project’s, not a scan run through OCR by us; the one word the printed column broke, “Haugh-ton” in a lawyer’s name, has been closed, and Woodfield’s opinion refers to him throughout by the court’s own “1-5 Bandit,” which is printed as it stands.
STATE OF NEW JERSEY v. JOSEPH KALLINGER.
May 13, 1980.
Petitions for certification denied.
Argued and submitted November 12, 1982,
affirmed March 2,
reconsideration denied May 13,
petition for review denied June 21, 1983 (295 Or 259)
STATE OF OREGON, Respondent, v. RANDALL BRENT WOODFIELD, Appellant.
(125,510, 125,511, 125,512, 125,513; CA A22732)
659 P2d 1006
Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellant.
Stephen F. Peifer, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and William F. Gary, Solicitor General, Salem.
Before Gillette, Presiding Judge, Thornton, Senior Judge, and Van Hoomissen, Judge.
GILLETTE, P. J.
[OPINION BY GILLETTE, P. J. type=majority]
GILLETTE, P. J.
Defendant appeals from his convictions for murder, attempted murder and two counts of first degree sodomy. We affirm.
Defendant was accused as being the “1-5 Bandit,” an individual responsible for several serious crimes along that interstate highway. We repeat the facts only as they are necessary to explain the assignments of error. Defendant first contends that the court erred in denying his motion to call Lawrence Moore as a witness. Moore had been convicted of murders in the Oregon Museum Tavern' in Salem. The purpose of calling him was to have two paramedics who were called to the scene in this case testify that there is a “resemblance” between Moore and a man they saw a few blocks from the scene shortly after the incident. The issue in this case at trial was the identity of the attacker. The surviving victim had given inconsistent descriptions of the man at various times following the attack. The defense wanted to show that she was mistaken in her identification of defendant.
The trial court did not err in denying the motion. Defendant did not want to call Moore to testify, but only for identification. Both of the paramedics testified that they were unable to see the facial characteristics of the man they had observed on the street. They had been suspicious of him, because he was wearing clothing similar to that described by the victim and because he ran away when he saw them looking at him. They both testified that they would not be able to identify the man if they were to see him again. When shown a sketch of Moore, one of the paramedics said that the man resembled the man he had seen on the street but that he could say nothing more definite. When shown photographs of other men that had been eliminated by the victim as suspects, the paramedic noted that those men also resembled the man he had seen on the street that night.
We see no legitimate purpose in bringing Moore before the jury in this case. The fact that there was a man acting suspiciously on the street near the crime who resembled someone who had been convicted of other crimes had only marginal relevance. Defendant does not contend that Moore was ever a suspect or that he should have been. Whatever relevance there might have been was certainly outweighed by the possibility of confusion created by parading Moore in front of the jury with so little to connect him with the crimes with which defendant was charged.
Defendant’s second assignment of error concerns the trial court’s failure to give, sua sponte, an instruction on the unreliability of eyewitness identification. Defendant contends that the failure to give the instruction should be considered under ORAP 7.19(5) as an error of law apparent on the face of the record. Defendant bases this claim on the fact that the victim gave conflicting descriptions of the attacker and had not been able to identify him from a photograph, although she later identified him in a line-up. Defendant does not, however, assign error to the admission of the victim’s in-court identification of defendant or to evidence of her previous identification of him.
Although the instruction on eyewitness identification was approved in State v. Calia, 15 Or App 110, 514 P2d 1354 (1973), rev den, cert den 417 US 917 (1974), we held in State v. Rovles, 41 Or App 653, 658-59, 598 P2d 1249 (1979), that:
“* * * The fact that a proposed instruction is a correct statement of law does not of itself compel that it be given in every case. Generally, the decision as to whether to given an instruction on the reliability of eye witness identification will depend on the trial judge’s perception of its desirability in each case. Here it was not an abuse of the trial judge’s discretion to refuse to give it. In fact, except in unusual circumstances, it should not be given.” (Emphasis supplied.)
See State v. Schroeder, 55 Or App 932, 938, 640 P2d 688, rev den 293 Or 373 (1982). Here, the instruction was not even “proposed.” This is not the type of error, if error at all, that has been considered “plain error” justifying consideration even though not preserved. State v. Randolph, 49 Or App 399, 619 P2d 680 (1980) (defendant incarcerated for offense that did not carry jail term); See State v. Willy, 36 Or App 853, 585 P2d 762 (1978) (total lack of evidence on essential element of crime).
Defendant next contends that it was error for the trial court to give Uniform Jury Instruction 202.03, based on the language of ORS 44.370, telling the jury that every witness is presumed to speak the truth. Defendant argues on appeal that the instruction was improper in this case because there were 37 state’s witnesses and only six witnesses for defendant. There was no such objection made at trial on that ground. Defendant’s exception to the instruction was:
“Also, we except to the court’s giving of the instruction on a witness false in part on the grounds that there is no evidence in this case of any witness being false.”
Defendant now argues that that exception, along with the statement that followed, raised this issue. We do not see how.
After the exception quoted above, counsel for defendant stated:
“Third, we except to the burden of proof of each party as given by the court because the defendant has no burden of proof in this case.”
This exception relates to a different instruction. We hold that this alleged error was not preserved. We further note, in any event, that the trial court did instruct the jury that they were not to simply count the witnesses for each side and make their determination on that basis.
Defendant’s fourth assignment of error is that the court erred in refusing to give the “less satisfactory evidence” instruction. Defendant’s request for this instruction was based on the fact that the state called two “prestigious experts” to testify concerning tests of the bullets found in defendant’s house and at the scene and a pubic hair found at the scene. They described the tests and testified that those tests were generally accepted in the scientific community. They did not themselves, however, conduct tests on the exhibits in this case; employes of the State Police crime laboratory had performed the actual tests on the physical evidence. Defendant would treat their testimony as “less satisfactory evidence,” because those employes had considerably less experience in conducting the tests than the “prestigious experts” called by the state.
In State v. Brock, 53 Or App 785, 790, 633 P2d 805 (1981), aff’d 294 Or 15, 653 P2d 543 (1982), we said that the instruction should be given when requested and “otherwise appropriate.”
«* * * To be appropriate, there must be evidence to support the instruction. If there is no basis in the record to conclude the state had evidence not produced which was arguably stronger than the proof offered, then it is not error to refuse the instruction. State v. Harwood, 45 Or App 931, 609 P2d 1312, rev den 289 Or 337 (1980); State v. Gwyther, 4 Or App 473, 479 P2d 248, rev den (1971).”
The only indication in this record is that the state did not have any evidence that was not offered. The “prestigious experts” testified that they had not conducted analysis of the bullets or the hair. There is no contention that the experts who did conduct the tests were not qualified to do so. There was no error in the court’s refusal to give the instruction.
Defendant’s final assignment of error is the imposition of a 50-year minimum sentence. Again, this issue was not raised in the trial court. At the sentencing hearing, the only discussion concerned the question whether the court could impose consecutive sentences with a life sentence for murder. There was no objection to the minimum sentence imposed. We will not consider the matter.
Affirmed.
608 A.2d 494
COMMONWEALTH of Pennsylvania, DEPARTMENT OF CORRECTIONS, Appellant, v. Joseph KALLINGER, Appellee.
Supreme Court of Pennsylvania.
Submitted May 4, 1992.
Decided June 17, 1992.
No. 3 Middle District Appeal Docket.
David B. Farney, Asst. Counsel, Theodore G. Otto, Chief Counsel, for appellant.
Jeffrey J. Wander, Honesdale, for Joseph Kallinger.
David Ferleger, Philadelphia, for Kallinger’s Guardian At Litem.
Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, jj.
[OPINION BY PER CURIAM. type=majority]
ORDER
PER CURIAM.
The order of the Commonwealth Court is affirmed.
615 A.2d 730
COMMONWEALTH, DEPARTMENT OF PUBLIC WELFARE, FARVIEW STATE HOSPITAL, Appellee, v. Joseph KALLINGER, Appellant.
No. 170 E.D. Appeal Dkt. 1990.
Supreme Court of Pennsylvania.
Oct. 20, 1992.
Jeffrey J. Wander, Honesdale, for appellant.
David Ferleger, Philadelphia, for Kallinger as Guardian Ad Litem.
Thomas Blazusiak, Allentown, for Com. Dept, of Public Welfare — Northeastern Regional Counsel.
Before NIX, C.J., and FLAHERTY, ZAPPALA, PAPADAKOS and CAPPY, JJ.
[OPINION BY PER CURIAM: type=majority]
ORDER
PER CURIAM:
AND NOW, this 20th day of October, 1992, the Court, sua sponte, dismisses this appeal as moot.
LARSEN, J., did not participate in the consideration and decision of this case.
David Leonard WOOD, Petitioner-Appellant, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
No. 06-70027.
United States Court of Appeals, Fifth Circuit.
Oct. 5, 2007.
Michael Dennis Samonek, John Thomas Haughton, Law Office of John T. Haughton, Denton, TX, for Wood.
Woodson Erich Dryden, Asst. Atty. Gen., Austin, TX, for Quarterman.
Before HIGGINBOTHAM, BENAVIDES and DENNIS, Circuit Judges.
[OPINION BY DENNIS, Circuit Judge: type=majority]
DENNIS, Circuit Judge:
This case involves an application for a certificate of appealability (“COA”) filed by Petitioner David Leonard Wood (“Petitioner”) to appeal the district court’s denial of habeas corpus relief under 28 U.S.C. § 2254. Petitioner seeks a COA to appeal the denial of his claims that (1) the indictment was defective because it did not state a capital offense; (2) trial and appellate counsel provided ineffective assistance of counsel; and (3) the trial court erred in admitting evidence of an extraneous offense during the guilt phase of the trial. Because we conclude that Petitioner has failed to make a substantial showing of the denial of a constitutional right, we deny his application for a COA.
I. BACKGROUND
The district court set forth the relevant facts as follows:
This case stems from the disappearances of six women from the El Paso, Texas area between May 13, 1987 and August 27, 1987. Between September 4, 1987 and March 14, 1988, the bodies of these women were found buried in shallow graves in the same desert area northeast of El Paso. Five of the bodies were located in the same one by one-half mile area; the sixth was three-quarters of a mile away. All of the bodies were approximately 30 to 40 yards from one of the dirt roadways in the desert. Four of the bodies were in various states of undress, indicating that the killer had sexually abused them. Five of the victims were seen by witnesses on the day of their disappearance accepting a ride from a man with either a red Harley-Davidson motorcycle or a beige pickup truck, matching the two vehicles owned by Petitioner. Petitioner’s girlfriend testified that he owned a burnt orange blanket and some shovels, all of which he kept in the back of his pickup truck. A forensic chemist later testified at trial that orange fibers found on the clothing of one of the victims matched orange fibers taken from a vacuum cleaner bag which Petitioner and his girlfriend had left in their old apartment.
Petitioner’s cell mate, R.W., testified that Petitioner told him about the murders, describing his victims as topless dancers or prostitutes. Petitioner told him that he would lure each girl into his pickup truck with an offer of drugs, drive out to the desert, tie her to his truck, and dig a grave. Next, he would tie the victim to a tree and rape her. Another cell mate, J.S., testified at Petitioner’s trial that Wood had shown him numerous clippings about the El Paso, Texas murders and had confessed to him that he was the one who had committed the murders.
The testimony of J.K. regarding an extraneous criminal offense committed by Petitioner played a crucial role at the guilt phase of the trial and in the opinion of the Court of Criminal Appeals. K., a prostitute and heroin addict, testified that in July 1987 she had been walking outside of a convenience store in the northeast part of El Paso when a man identified as Wood, and matching his description, asked if she needed a ride. She accepted his offer but Wood did not take her home as directed. Instead, he stopped at an apartment complex and went inside. When he returned, a piece of rope was hanging from one of his pockets. Petitioner drove northeast of town toward the desert, and after driving around the area for a period of time, stopped the truck, got out, and ordered K. out as well. She saw him get a “brownish red” blanket and shovel from the back of his truck. After tying her to the front of his truck with the rope, Petitioner proceeded to dig a hole behind some
bushes. Ten or fifteen minutes later he returned with the blanket and began ripping her clothes and forcing her to the ground. Upon hearing voices, Petitioner ordered K. to get back in the truck. Wood drove to a different location in the desert where he stopped his truck again, ordered K. out, spread the blanket on the ground, and forced the victim to remove her clothes. He gagged her, tied her to a bush, and raped her. Immediately afterwards, Petitioner stated that he heard voices, and hastily threw his belongings back into the truck and drove away, leaving K. naked in the desert. His final words to her were, “Always remember, I’m free.”
Wood v. Dretke, 2006 WL 1519969, **1-2 (N.D.Tex. Jun. 2, 2006).
On November 30, 1992, Petitioner was convicted by a jury of capital murder and was sentenced to death by lethal injection. He appealed his conviction and sentence to the Texas Court of Criminal Appeals (“TCCA”), which affirmed his conviction and death sentence in an unpublished opinion. See Wood v. State, No. 71,594 (Tex. Crim.App. Dec. 13, 1995). He then filed a state application for writ of habeas corpus on December 19, 1997. The TCCA denied relief in an unpublished order. See Ex Parte Wood, No. 45, 746-01 (Tex.CrimApp. Sept. 19, 2001). On May 6, 2002, Petitioner filed an initial federal petition for writ of habeas corpus and an amended petition on October 2, 2002. In his amended petition, he argued, inter alia, that (1) his indictment was constitutionally defective, (2) trial and appellate counsel were ineffective by failing to object to the alleged technical defects in the indictment; and (3) the trial court erred in admitting evidence of an extraneous offense. The district court denied each claim on the merits and subsequently denied a COA. Petitioner filed a notice of appeal and the instant application for a COA.
II. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”), a COA may not issue unless “the applicant has made a substantial showing of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting 28 U.S.C. § 2253(c)). According to the Supreme Court, this requirement includes a showing that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Id. at 483-84, 120 S.Ct. 1595 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). As the Supreme Court explained:
The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable amongst jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. When a court of appeals side steps this process by first deciding the merits of an appeal, and then justifying its denial of a COA based on its adjudication of the actual merits, it is in essence deciding an appeal without jurisdiction.
Miller-El v. Cockrell, 537 U.S. 322, 336-37, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2002).
In sum, Petitioner need not show that his habeas petition will ultimately prevail on the merits in order for this court to issue a COA. Id. at 337, 123 S.Ct. 1029. In fact, the Supreme Court has specifically instructed that a court of appeals should not deny a COA simply because the petitioner has not demonstrated an entitlement to relief. Id. Instead, “where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Id. at 338, 123 S.Ct. 1029 (citing Slack, 529 U.S. at 484, 120 S.Ct. 1595).
For claims that were adjudicated on the merits in state court, deference to the state court’s decision is required unless the adjudication was “contrary to, or involved an unreasonable application of, clearly establish Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2); see also Ladd v. Cockrell, 311 F.3d 349, 357 (5th Cir.2002).
III. ANALYSIS
A. Sufficiency of the Indictment Claim
The first issue raised by Petitioner is whether the indictment in this case is constitutionally defective. This court has held that “[t]he sufficiency of a state indictment is not a matter of federal habeas relief unless it can be shown -that the state indictment is so defective that it deprives the state court of jurisdiction.” McKay v. Collins, 12 F.3d 66, 68 (5th Cir.1994) (citation omitted); see also Yohey v. Collins, 985 F.2d 222, 229 (5th Cir.1993); Alexander v. McCotter, 775 F.2d 595, 598 (5th Cir.1985). That question is foreclosed to federal habeas review, however, if “the sufficiency of the [indictment] was squarely presented to the highest court of the state on appeal, and that court held that the trial court had jurisdiction over the case.” Millard v. Lynaugh, 810 F.2d 1403, 1407 (5th Cir.1987) (quoting Liner v. Phelps, 731 F.2d 1201, 1203 (5th Cir.1984)). Here, the sufficiency of the indictment was squarely presented to the TCCA, which adopted the state habeas court’s express findings that the indictment was not fundamentally defective and that even if the indictment failed to allege a necessary element, it was still an indictment under state law. Because the sufficiency of the indictment was squarely presented to the highest state court and that court held that the trial court had jurisdiction over this case, this claim is foreclosed to federal habeas review. Millard, 810 F.2d at 1407 (quoting Liner, 731 F.2d at 1203).
Even if we were to reach this issue on the merits, we would find it beyond debate that Petitioner has failed to make a substantial showing of the denial of a constitutional right. Texas law defines murder as “intentionally or knowingly causing] the death of an individual.” Tex. Penal Code § 19.02(b)(1). A person commits capital murder if he or she “murders more than one person ... during different criminal transactions but the murders are committed pursuant to the same scheme or course of conduct.” Tex. Penal Code § 19.03(a)(7)(B). The indictment charges Petitioner with “unlawfully, intentionally and knowingly causing] the death of more than one person, during different criminal transactions, pursuant to the same scheme and course of conduct.” It then lists the six victims and the manner, if known, in which they were killed. We simply fail to see how the indictment is insufficient in charging Petitioner with capital murder. See McKay, 12 F.3d at 69 (“An indictment should be found sufficient unless no reasonable construction of the indictment would charge the offense for which the defendant has been convicted.”) (citing United States v. Salinas, 956 F.2d 80, 82 (5th Cir.1992)). Accordingly, we conclude that it is beyond debate that Petitioner has not made a substantial showing of the denial of a constitutional right with respect to his sufficiency of the indictment claim.
B. Ineffective Assistance of Counsel Claim
The second issue raised by Petitioner is whether trial and appellate counsel provided ineffective assistance by failing to object to the alleged technical defect in the indictment. Petitioner frames the issue as follows: “Did Mr. Wood’s trial and appellate counsel provide ineffective assistance within the meaning of Salinas v. State, 163 S.W.3d 734 (Tex.Crim.App. 2005)?” We first note that “federal habeas corpus relief does not lie for errors of state law.” Estelle v. McGuiare, 502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990)). As the Supreme Court emphasized, “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” Id. at 67-68, 112 S.Ct. 475.
Assuming that Petitioner intended to raise a federal claim for ineffective assistance of counsel, the Supreme Court has set forth a familiar two-prong test for examining such claims:
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.' Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so ■ serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings,, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Sonnier v. Quarterman, 476 F.3d 349, 356 (5th Cir.2007).
This court has held, however, that “[fjailure to raise meritless objections is not ineffective lawyering; it is the very opposite.” Clark v. Collins, 19 F.3d 959, 966 (5th Cir.1994); see also Koch v. Puckett, 907 F.2d 524, 527 (5th Cir.1990) (“This Court has made clear that counsel is not required to make futile motions or objections.”). Because we find that Petitioner’s sufficiency of the indictment claim plainly lacks merit, the performance of his trial and appellate counsel cannot be considered constitutionally deficient for failing to raise the same claim at trial and on appeal.
C. Due Process Claim
The third and final issue raised by Petitioner is whether the trial court erred in admitting evidence of an extraneous offense during the guilt phase of the trial. Although Petitioner alludes to a due process violation, his central argument is that the admission of J.K.’s testimony violated Texas law. “Such an inquiry, however, is no part of a federal court’s habeas review of a state conviction.” McGuire, 502 U.S. at 67, 112 S.Ct. 475; see also Derden v. McNeel, 978 F.2d 1453, 1458 (5th Cir.1992) (“Errors of state law, including evidentiary errors, are not cognizable in habeas corpus.”); Porter v. Estelle, 709 F.2d 944, 957 (5th Cir.1983) (“We have repeatedly admonished that we do not sit as a super state supreme court on a habeas corpus proceeding to review error under state law.”) (quoting Mendiola v. Estelle, 635 F.2d 487, 491 (5th Cir.1981)). Instead, the only relevant inquiry is whether the admission of this testimony violated Petitioner’s federal constitutional rights. Id. Moreover, the TCCA has already held that the admission of this testimony was not erroneous under Texas law. The Supreme Court has “repeatedly held that a state court’s interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005) (citing McGuire, 502 U.S. at 67-68, 112 S.Ct. 475; Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975)). Thus, the issue of whether the admission of K.’s testimony violated Texas law is simply not before us and has already been answered by the TCCA.
According to the Supreme Court, the admission of evidence may violate the Due Process Clause of the Fourteenth Amendment if the evidence is “so unduly prejudicial that it renders the trial fundamentally unfair.” Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) (citing Darden v. Wainwright, 477 U.S. 168, 179-83, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986)); see also Porter, 709 F.2d at 957 (quoting Mendiola, 635 F.2d at 491). This court has stated that “[a]n extraneous offense may be admitted into evidence without violating the due process clause if the government makes a ‘strong showing that the defendant committed the offense’ and if the extraneous offense is ‘rationally connected with the offense charged.’ ” Story v. Collins, 920 F.2d 1247, 1254 (5th Cir.1991) (quoting Enriquez v. Procunier, 752 F.2d 111, 115 (5th Cir.1984)). Still, “the erroneous admission of prejudicial evidence will justify habeas relief only if the admission was a crucial, highly significant factor in the defendant’s conviction.” Neal v. Cain, 141 F.3d 207, 214 (5th Cir.1998). Finally, “[a]ssuming arguendo that the admission of [this evidence] was constitutional error, [the] claim still fails [if the petitioner] has not shown that the testimony had a ‘substantial and injurious effect or influence in determining .the jury’s [ ] verdict.’ ” Janecka v. Cockrell, 301 F.3d 316, 328-29 (5th Cir.2002) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)).
As previously noted, J.K., a prostitute and heroin addict, testified that she accepted a ride from Petitioner, but that he instead took her to the desert, tied her to his truck, and proceeded to dig a hole. She further testified that after hearing voices, Petitioner moved her to another location, gagged her, tied her to a bush, and raped her. In addressing the admissibility of this evidence, the TCCA found that K.’s testimony tended to demonstrate that Petitioner had a unique system of committing criminal acts. The TCCA emphasized the striking similarities between the K. rape and the six murders, including the proximity of the found bodies to the area where K. was raped, the use of a beige truck to transport the victim, the evidence of sexual abuse of the several victims, the use of a blanket and rope, and the fact that Petitioner dug a hole prior to raping K. The TCCA also noted the similarities between the K. rape and testimony given by one of Petitioner’s cell mates that Petitioner described all of his victims as topless dancers and prostitutes, that he would tie the women to his truck while he dug a grave and then tie them to a tree and rape them, and that he was worried about his tattoos because one girl had escaped. Finally, the TCCA held that any prejudicial effect of admitting the testimony did not substantially outweigh its probative value because identity was a hotly contested issue, the evidence that Petitioner raped K. was “unassailable,” the evidence of rape was much less severe than the murders, the amount of time presenting the evidence was minimal in relation to the entire length of the trial, and the evidence was extremely important to the state’s case.
Because the state has made a strong showing that Petitioner committed the extraneous offense — Petitioner does not deny raping K. — and because the extraneous offense is rationally connected to the offense charged, the admission of K.’s testimony did not violate Petitioner’s due process rights. Story, 920 F.2d at 1254 (quoting Enriquez, 752 F.2d at 115). Thus, we conclude that it is beyond debate that Petitioner has not'made a substantial showing of the denial of a constitutional right with respect to his due process claim.
IV. CONCLUSION
For the foregoing reasons, the application for a COA is denied.
The Texas Constitution provides that the "presentment of an indictment or information to a court invests the court with jurisdiction of the cause.” Texas Constitution, Art. 5, § 12(b). Based on this provision, Texas courts have held that "failure to include an essential element of the crime charged, which constitutes a defect of substance, does not deprive the trial court of jurisdiction.” McKay, 12 F.3d at 69 (citing Studer v. Texas, 799 S.W.2d 263 (Tex.Crim.App.1990)).
We also note that trial counsel filed two motions to quash the indictment on the bases that it did not allege the cause of death of five of the victims and did not allege what different criminal transactions occurred or what acts constituted the same scheme or course of conduct. Trial counsel also filed a motion to dismiss the indictment on the basis that it did not define “criminal transactions” or “same .scheme or course of conduct.” Thus, we agree that trial counsel provided reasonably effective assistance of counsel by attacking the validity of the indictment on several grounds.