United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 21, 2005
Charles R. Fulbruge III
Clerk
No. 04-30458
Summary Calendar
MICHAEL THOMAS
Petitioner - Appellant
v.
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY
Respondent - Appellee
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:03-CV-548
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Before KING, Chief Judge, and SMITH and GARZA, Circuit Judges.
PER CURIAM:*
Michael Thomas, Louisiana prisoner # 126190, was granted a
certificate of appealability on the issues whether trial counsel
rendered ineffective assistance by not securing testimony of an
alibi witness and whether the evidence was insufficient to
support his conviction. Thomas v. Cain, No. 04-30458, (5th Cir.
Nov. 9, 2004).
Thomas argues that the district court should have granted
him habeas relief because the state court’s application of
*
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this opinion should not be published and is not precedent except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. 04-30458
-2-
Strickland v. Washington, 466 U.S. 668 (1984), was unreasonable.
28 U.S.C. § 2254(d). He challenges the Louisiana Second Circuit
Court’s finding of fact as a wrongful substitution of its
judgment and credibility determination for that of the trial
court.
The district court determined that Thomas’s challenge to the
finding of the Second Circuit rejecting the trial court’s factual
finding was a matter of state procedural law and therefore not
subject to federal habeas review. See Rudd v. Johnson, 256 F.3d
317, 320 (5th Cir. 2001). The district court also stated that
Thomas failed to establish by clear and convincing evidence that
the Second Circuit Court erred when it did not defer to the
factual findings of the trial court. The district court’s
finding is not clearly erroneous because the state court’s
decision did not involve an unreasonable application of
Strickland.
With regard to Thomas’s assertion that the evidence was
insufficient in light of the new alibi testimony, he is not
entitled to relief because Jackson v. Virginia, 443 U.S. 307
(1979), requires the court to evaluate the “record evidence” to
determine whether a finding of guilt could be supported. 443
U.S. at 318. The testimony of Charles Cummings was not presented
at trial and therefore cannot be considered in an insufficiency
argument.
No. 04-30458
-3-
The state court reviewed the testimony and evidence
presented at trial and concluded that a rational trier of fact
could find Thomas guilty of attempted manslaughter beyond a
reasonable doubt. The state court’s decision was not in
violation of clearly established federal law and did not involve
an unreasonable determination of the facts. 28 U.S.C. § 2254(d).
Therefore, Thomas is not entitled to federal habeas relief. The
decision of the district court is AFFIRMED.