IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-31036

Summary Calendar

ADAM FRANK,

Petitioner-Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

Respondent-Appellee

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 6:09-CV-1184

Before JONES, DENNIS and HAYNES, Circuit Judges. 

PER CURIAM:*

Following the district court’s denial of his 28 U.S.C. § 2254 petition, this

court granted Adam Frank, Louisiana prisoner #213548, a certificate of

appealability on his claim that the State engaged in prosecutorial misconduct

when it failed to correct the testimony of Adam White, who testified against him

at his trial. Frank’s motion to file his reply brief out of time is GRANTED.

Frank argues that White falsely denied that his testimony was given

pursuant to a deal with the State wherein White was allowed to withdraw his

United States Court of Appeals

Fifth Circuit

F I L E D

February 20, 2013

Lyle W. Cayce

Clerk

* 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.

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guilty plea to armed robbery and to plead guilty to a lesser included offense of

conspiracy, for which he received a five year sentence. Frank attempted to

support his claim with the transcript of White’s guilty plea, which was not

presented to the state courts. 

In Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011), the Supreme Court

held that “review under § 2254(d)(1) is limited to the record that was before the

state court that adjudicated the claim on the merits.” The Court also rejected

the notion that a federal court can consider evidence for the first time on habeas

review if the evidence is offered merely to support a claim that has already been

presented to the state courts. See Lewis v. Thaler, F.3d , 2012 WL 5860247

at *5-6 (5th Cir. Nov. 20, 2012) (citing Pinholster, 131 S. Ct. at 1402 n.11). 

Further, although the Court acknowledged that state prisoners may sometimes

submit new evidence in federal court, it held that a prisoner may not circumvent

the requirements of § 2254(d)(1) and § 2254(e)(2) in order to so do. See id. at *6.

We reject Frank’s argument that the holding of Pinholster does not apply

to the circumstances herein. Further, Frank has made no showing that the

transcript may be submitted under the limited circumstances recognized in

Pinholster. Accordingly, we hold that the transcript of White guilty plea “has no

bearing” on this court’s § 2254(d)(1) review. See Pinholster, 131 S. Ct. at 1400.

Whether the prosecutor knowingly used false and material testimony is

a mixed question of law and fact. Hafdahl v. Johnson, 251 F.3d 528, 532-33

(5th Cir. 2001). Accordingly, we review the district court’s factual findings for

clear error and the conclusions drawn from those facts de novo. Id. We also

must take account of the deferential standards of the Antiterrorism and

Effective Death Penalty Act (AEDPA). See Harrison v. Quarterman, 496 F.3d

419, 423 (5th Cir. 2007). Under the AEDPA, federal habeas relief cannot be

granted on claims adjudicated on the merits in state court unless the

adjudication of the claim resulted in a decision that (1) “was contrary to, or

involved an unreasonable application of, clearly established Federal law, as

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determined by the Supreme Court of the United States”; or (2) “was based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” § 2254(d). 

A state court’s decision is contrary to clearly established federal law if it

“applies a rule that contradicts the governing law set forth” in Supreme Court

cases or “if the state court confronts a set of facts that are materially

indistinguishable from a decision of [the Supreme Court] and nevertheless

arrives at a result different from [the Court’s precedent].” Williams v. Taylor,

529 U.S. 362, 405-06 (2000). A state court decision involves an unreasonable

application of clearly established federal law if the state court “correctly

identifies the governing legal rule but applies it unreasonably to the facts of a

particular prisoner’s case.” Id. at 407-08. 

The deliberate deception of a court and jurors by the presentation of

known false evidence violates the Due Process Clause of the Fourteenth

Amendment. Giglio v. United States, 405 U.S. 150, 153 (1972). The “same result

obtains when the State, although not soliciting the false evidence, allows it to go

uncorrected when it appears.” Id. (quoting Napue v. Illinois, 360 U.S. 264, 269

(1959)). “Although Giglio and Napue use the term ‘promise’ in referring to

covered-up deals, they establish that the crux of a Fourteenth Amendment

violation is deception. A promise is unnecessary.” Tassin v. Cain, 517 F.3d 770,

778 (5th Cir. 2008). In order to obtain relief on his claim, Frank must show that

White testified falsely, the State knew the testimony was false, and the

testimony was material in that it could reasonably have affected the judgment

of the jury. See Napue, 360 U.S. at 271.

The state appellate court determined that under the governing law first

set forth in Napue, the facts did not support Frank’s claim. The court

determined that nothing in the record indicated that White knew that he would

be allowed to withdraw his plea and to plea to a lesser crime. The court further

determined that White had not been untruthful in his testimony because he had

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admitted that he was testifying in the hope that he would receive favorable

treatment at sentencing. 

Frank has not shown the appellate court’s determination to be

unreasonable. See Williams, 529 U.S. at 405-06. Unlike in Napue and Tassin,

where the witnesses flatly denied an expectation of a sentence reduction, White

acknowledged that he testified because he hoped to get time off his sentence. 

White thus did not testify falsely. See Napue, 360 U.S. at 271. Because Frank

has not shown that the district court erred in rejecting his claim, the judgment

of the district court is AFFIRMED.

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