Duval v. Cain

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
October 22, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-31087
Summary Calendar
THOMAS DUVAL,
Petitioner-Appellant,
versus
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. 02-CV-1930
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Thomas Duval, Louisiana prisoner # 379864, is serving a life
sentence for second-degree murder. See State v. Duvall, 747 So.
2d 793, 795 (La. Ct. App. 1999). The district court denied and
dismissed his 28 U.S.C. § 2254 petition but granted a certificate
of appealability (“COA”) on Duval’s claims that the state trial
court improperly admitted an inculpatory statement and improperly
admitted expert opinion testimony. This court denied Duval’s
request for a COA on the remainder of his claims.

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No. 03-31087
-2-
With respect to Duval’s claim that the trial court
improperly admitted expert opinion testimony from an
investigating officer and a forensic pathologist, the district
court dismissed that claim as procedurally barred. On appeal,
Duval argues only the merits of his claim and does not address
the district court’s procedural ruling. The issue has thus been
abandoned. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.
1993); Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1987).
Duval argues that the trial court improperly admitted an
inculpatory res gestae statement and then improperly denied his
motions for a mistrial and for a new trial. Although Duval’s
arguments are based solely on state law, we liberally construe
his argument as one that the trial court’s alleged error
constituted a due process violation. Duval contends that the
statement was unduly prejudicial because, without it, the jury
could not have found the specific intent required for a second-
degree murder conviction in Louisiana. See LA. REV. STAT. ANN.
§ 14:30.1(A)(1). But our review of the record, and of Duval’s
trial testimony in particular, leads us to conclude that there
was overwhelming evidence that the victim was killed during
Duval’s commission of an aggravated burglary. See LA. REV. STAT.
ANN. §§ 14:2(4), 14:36, 14:37.4(A), (C), and 14:60. Therefore,
the evidence supports the jury verdict of second-degree murder
under the felony-murder provision of LA. REV. STAT. ANN.

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No. 03-31087
-3-
§ 14:30.1(A)(2)(a). Duval does not argue to the contrary.
Accordingly, to the extent that Duval’s argument on appeal can be
construed as an argument that the trial court’s denial of his
mistrial motion and his post-verdict motion for a new trial
constituted a due process violation, it is without merit. See
Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).
The judgment of the district court denying and dismissing
Duval’s 28 U.S.C. § 2254 petition is AFFIRMED. Duval’s motions
for oral argument and for appointment of counsel to argue on his
behalf are denied.
AFFIRMED; MOTIONS DENIED.

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