Muse v. Cain

                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                            No. 96-30618



RENOALD MUSE,

                                           Petitioner-Appellant,

versus

BURL CAIN, Warden; RICHARD IEYOUB,
Attorney General, State of Louisiana,

                                           Respondents-Appellees.

                       ---------------------
           Appeal from the United States District Court
               for the Eastern District of Louisiana
                      USDC No. 95-CV-4030-C-6
                       ---------------------
                         November 14, 1996
Before SMITH, DUHE’ and BARKSDALE, Circuit Judges.

PER CURIAM:*

     The district court granted Renoald Muse, Louisiana inmate

#1222218, a certificate of appealability (COA) on one issue,

whether the 99-year prison sentence, without benefit of parole,

was proportional under the Eighth Amendment to the offense of

conviction.    Even if the district court has the authority under

28 U.S.C. § 2253 to issue a COA, we conclude that the issue, in

light of the argument presented on appeal, is frivolous for

essentially the same reasons adopted by the district court in

     *
        Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
                            No. 96-30618
                                - 2 -

denying relief.   See 5th Cir. R. 42.2.

     If this court were to hold that the district court lacks the

authority to grant a COA, the notice of appeal filed by Muse

would be construed as a request for the issuance of a COA on both

habeas claims presented in his habeas petition:    1) a Brady**

violation by the prosecution’s failure to disclose before trial

that one robbery victim failed to identify her assailant from a

photo array and 2) an Eighth Amendment violation premised on an

excessive sentence.   See Fed. R. App. P. 22(b).   Because Muse

fails to make a substantial showing of the denial of a

constitutional right, see § 2253(c)(2), IT IS ORDERED that COA is

DENIED.

     APPEAL DISMISSED.   COA DENIED.




     **
          Brady v. Maryland, 373 U.S. 83 (1963).