United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 19, 2003
Charles R. Fulbruge III
Clerk
No. 02-31023
Summary Calendar
JEROME BERGERON,
Petitioner-Appellant,
versus
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Louisiana
(2-CV-729-H)
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Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Jerome Bergeron, Louisiana prisoner
#170254, was convicted by a jury of three counts of aggravated rape
and sentenced to three concurrent terms of life in prison without
the benefit of parole, probation, or suspension of sentence. After
denying Bergeron’s 28 U.S.C. § 2254 petition for habeas relief, the
district court granted a certificate of appealability (COA) as to
whether the State violated Bergeron’s constitutional rights by
failing to disclose tape recordings of interviews with the victims
and by failing to disclose that one of the victims had mistakenly
*
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this opinion should not be published and is not precedent except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.
identified another individual, Royal Francis, Jr., as having also
sexually assaulted her. Bergeron filed a motion to file a reply
brief out-of-time, which we now grant.
A defendant’s right to due process is violated when, on a
request for exculpatory evidence, the prosecution conceals evidence
that is both favorable to the defendant and material to the
defendant’s guilt or punishment. Brady v. Maryland, 373 U.S. 83,
87 (1963). Bergeron’s particular Brady claim implicates
destruction (failure to preserve) material exculpatory evidence.
To meet the standard of constitutional materiality when the State
has failed to preserve evidence, the “evidence must both possess an
exculpatory value that was apparent before the evidence was
destroyed, and be of such a nature that the defendant would be
unable to obtain comparable evidence by other reasonably available
means.” California v. Trombetta, 467 U.S. 479, 490 (1984).
Furthermore, the defendant must show that State officials acted in
bad faith. Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988).
Although Bergeron shows that there was some testimony at the
hearing tending to support his claim regarding the tape recordings,
he fails to demonstrate that the state court’s rejection of his
claim involved an unreasonable application of clearly established
federal law or was based on an unreasonable determination of the
facts in light of the evidence presented in the state court
proceedings. 28 U.S.C. § 2254(d); see Neal v. Puckett, 286 F.3d
230, 246 (5th Cir. 2002)(en banc), cert. denied sub nom. Neal v.
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Epps, 123 S. Ct. 963 (2003). Furthermore, the state court’s
factual findings that the tapes would not have been favorable to
Bergeron and that the State did not act in bad faith must be
accorded a presumption of correctness. 28 U.S.C. § 2254(e)(1). In
light of all the testimony before the state court, Bergeron fails
to rebut that court’s findings by proffering evidence that meets
the required heightened level of clear and convincing. See Hill v.
Johnson, 210 F.3d 481, 487 (5th Cir. 2000).
Bergeron also fails to demonstrate that the state court’s
rejection of his second claim —— that the State violated his rights
under Brady by failing to disclose information that one of the
victims had misidentified Francis as another perpetrator ——
involved an unreasonable application of clearly established federal
law or was based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceedings. 28
U.S.C. § 2254(d). As the district court noted, the fact that one
of the victims might have mistakenly identified Francis in a photo
lineup did not reflect on the credibility of that victim’s
allegations that she was sexually assaulted by Bergeron. He fails
to show that there is a reasonable probability that the result of
the proceeding would have been different had the information been
disclosed. Bagley, 473 U.S. at 682.
As Bergeron has failed to demonstrate that he is entitled to
28 U.S.C. § 2254 relief, we affirm the judgment of the district
court.
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MOTION GRANTED; JUDGMENT AFFIRMED.
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