c32:No. 86 — 2296

TATE, Circuit Judge,
dissenting:
I respectfully dissent.
The majority has quoted the most improper concluding argument made by the prosecutor. The majority has not, however, detailed the repeated prior improprieties by the prosecutor, and the unsuccessful attempts by .the defendant’s counsel to have the court assert curative action against these grossly improper arguments. It was in the light of these past continuous improprieties, as well as of this quoted concluding argument (just before the jury retired) that the present trial court concluded: “In the context of McKinney’s trial and against the ‘backdrop’ of the prosecutor’s earlier arguments, the Court does not hesitate to find that the argument about which McKinney complains was so egregious that it deprived him of his right to a fair trial under the due process clause.”
My brethren of the majority somewhat lightly disagree with this conclusion. Rather, they emphasize that under Wainwright v. Sykes a procedural default under Texas law bars federal habeas relief.
The defendant’s counsel did object to the grossly improper argument (as he had consistently to previous such exhibitions). The state procedural default here is that counsel, although objecting, did not obtain an express ruling by the state trial court upon the objection. McKinney v. State, 506 S.W.2d 536, 541 (Tex.Crim.App.1974). As the Texas appellate decision states: “The record reflects that immediately after appellant objected to the prosecutor’s argument the court retired the jury for deliberations without ruling on said objection.”
Prejudice is clearly shown by the grossly improper argument. The issue, then, is whether under Wainwright v. Sykes there was “cause” for the defense counsel’s failure to obtain a ruling upon his objection — a ruling that would as undoubtedly have been adverse, as was the case for most of his previous objections.
I would agree with the present district court that adequate cause is shown for this minor procedural default. The court stated:
To the extent that respondent relies on Texas’ “contemporaneous objection” rule to frustrate McKinney’s claim, see McKinney v. State, 505 S.W.2d 536, 541 (Tex.Crim.App.1974), the Court is of the opinion that McKinney has demonstrated the necessary “cause and prejudice” to circumvent the rule’s strictures. Eu-banks’ repeated improprieties caused Atkins to fail to press his objection to the complained-of remark. Cf. United States v. Garza, 608 F.2d 659, 666 (5th Cir. 1979) (“while defense counsel could and, indeed, should have objected to the first instances of improper comment by the prosecutor, at some point the transgressions of this prosecutor cumulated so greatly as to be incurable; then objection to these extremely prejudicial comments would serve only to focus the jury’s attention on them”); Houston v. Estelle, supra [569 F.2d 372 (5th Cir. 1978)] at 381-82 (repeated instances of improper argument and improper comments on defense counsel’s successful objections may mitigate defendant’s duty to object). The inherent prejudice in Eubanks’ last remarks is evident.
[T]he most important problem facing the jury was its decision to credit the testimony of .. . the [state’s] witnesses or that of [the defendant] .... The prosecutor’s comments . . . were expressly intended to influence this critical credibility choice; he introduced for the jury’s consideration his own personal opinion as to this choice, suggested the existence of information beyond that presented at trial to support his witnesses’ credibility, and sought to use the status and influence of the entire government investigatory apparatus to bolster the believability of this case.
U. S. v. Garza, supra at 665-66 (footnote omitted).
As Judge Rubin recognized in his separate opinion in Cronnon v. Alabama, supra [587 F.2d 246 (5th Cir. 1979)] at 252 (Rubin, concurring in the result), claims of improper jury argument necessitate judicial linedrawing. Eubanks’ argument was clearly more improper and more prejudicial than those approved in Cronnon v. Alabama, supra, and Alvarez v. Estelle, supra [531 F.2d 1319 (5th Cir. 1976)] but not nearly so egregious as that condemned in Houston v. Estelle, supra. However, the Court is convinced that Eu-banks’ final remarks, rife with suggestions that the court and defense counsel had frustrated the prosecution’s attempts to present all of the evidence and laced with his firm personal conviction of McKinney’s guilt, crossed the boundaries of constitutionality and propriety, and deprived McKinney of the fundamentally fair trial to which he was entitled.
Accordingly, I respectfully dissent.
. I will not dwell upon the factual lack of opportunity, without interrupting the jury’s process of leaving the courtroom, if the defendant’s counsel had asked the court once again for a ruling that undoubtedly would have overruled the defense objection of improper prosecutorial argument, as on repeated earlier occasions. The record shows that, immediately following defense counsel’s objection, the state trial court, without referring to it, immediately announced to the jury: “Ladies and gentlemen, you will take the Court’s charge, retire to the jury room, elect a foreman, and when you have arrived at a verdict, knock on the door and we will receive it.”

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