United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS February 17, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-30696
Summary Calendar
MICHAEL THOMAS,
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
USDC No. 01-CV-3064-C
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Michael Thomas, Louisiana state prisoner # 293784, has
appealed the district court’s judgment dismissing his application
for a writ of habeas corpus, challenging his 1991 conviction for
second-degree murder, for which he is serving a sentence of life
imprisonment at hard labor without benefit of parole, probation
or suspension of sentence. See State v. Thomas, 620 So. 2d 469
(La. Ct. App. 1993).
*
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this opinion should not be published and is not precedent except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.
No. 03-30696
- 2 -
The district court granted a certificate of appealability
(“COA”) as to one issue only: whether Thomas’s right to due
process was violated by the trial court’s specific-intent
instruction. Thomas contends that the instruction, which
referred to Thomas and his codefendants collectively, relieved
the State from having to prove that he, individually, intended to
kill the victim. In rejecting this issue, the state court of
appeals concluded that there was “no possibility that the jury
members could have believed that a defendant’s specific intent to
kill could have been implied from knowledge of a coconspirator’s
intent.” See State v. Thomas, 750 So. 2d 1114, 1128 (La. Ct.
App. 1999). The authorities relied upon by Thomas are inapposite
and the state court’s conclusion did not involve an unreasonable
application of Federal law. See 28 U.S.C. § 2254(d)(1). The
district court’s rejection of this issue is affirmed.
Thomas has moved to extend the COA. See United States v.
Kimler, 150 F.3d 429, 431 (5th Cir. 1998); see also 28 U.S.C.
§ 2253(c)(1)(A). Thomas contends that his rights to due process
and to effective assistance of counsel were violated because his
attorney failed to move to sever his trial from the trial of his
codefendants. He contends also that exculpatory evidence was
withheld from the defense. Thomas has not made a substantial
showing of the denial of a constitutional right as to these
issues. See 28 U.S.C. § 2253(c)(2). Thomas contends also that
his right to due process was denied because the trial court
No. 03-30696
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admitted into evidence a bullet proof vest, which he contended
was prejudicial, extraneous evidence. Additionally, Thomas
contends that the trial court erred in failing to instruct the
jury on principals. Thomas has not shown that jurists of reason
would conclude that the district court erred in concluding that
these claims were not exhausted in the state courts and are
procedurally barred. See Slack v. McDaniel, 529 U.S. 473, 484–85
(2000). The motion to extend the COA is denied.
AFFIRMED; MOTION DENIED.