### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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 A dam Frank, Louisiana p risoner #213548, a certificate of appealability o n his c laim t hat the State engaged i n prosecutorial misconduct when i t failed to correct the t estimony of Adam White, who testified against him at his trial. Frank’s motion to file his reply brief out of time is GRANTED. F r a nk a rgues that White falsely d enied that his testimony was given pursuant to a deal with t h e S tate wherein White was allowed to withdraw his U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D February20, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 11-31036 Document: 00512149442 Page: 1 Date Filed: 02/20/2013No. 11-31036

guilty plea to armed robbery and to plead g u i l ty to a lesser included offense of conspiracy, for which h e r eceived a five year sentence. Frank attempted to support his claim with the transcript of White’s g u i l ty 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 § 2 254(d)(1) is l i mited to the record that was before the state court that adjudicated t he claim on t he merits.” The Court also rejected the notion that a f

ederal 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. T h aler , F.3d , 2012 WL 5 860247 at *5-6 (5th Cir. N ov. 20, 2012) (citing Pinholster , 131 S

. C t

. a t 1402 n.11). Further, although the Court a cknowledged that state prisoners may sometimes submit new evidence i n federal court, it held that a prisoner may not circumvent the requirements o f § 2254(d)(1) and § 2254(e)(2) in order to so do. See id. at *6. We reject F rank’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 un d e r t h e limited circumstances recognized in Pinholster

. Accordingly, we hold that t he transcript of White guilty plea “has no bearing” on this c ourt’s § 2254(d)(1) review. See Pinholster , 131 S

. Ct. at 1400. Whether the prosec u t o r k n o w ingly used false and material testimony is

a mixed question o f l aw and fact. H afdahl v. Johnson , 251 F.3d 5 28, 532-33 (5th Cir. 2001). Accordingly, we review t he district court’s factual findings for clear error and the c onclusions drawn f ro m t h o s e f

a c ts de novo. Id. We also must take accoun t of t he deferential standards of the Antiterrorism and Effective Death Penalty Act (AEDPA). See H arri s o n v . Q uarterman , 496 F.3d 419, 423 (5th C i r . 2 007). Under the AEDPA, federal habeas r elief cannot be granted on claims adjudicated on the merits in state c ourt unless the adju d i c a t i o n of t he claim resulted in a decision that (1) “was contrary to, or involved an unreasonable application of, clearly establish e d F e deral law, as 2 Case: 11-31036 Document: 00512149442 Page: 2 Date Filed: 02/20/2013No. 11-31036

determined by the Supreme Court of t he United States”; o r (2) “was based on an unreasonable determination o f the facts i n light of the evidence p r esented in the State court proceeding.” § 2254(d). A state court’s decision is contrary to clearly established federal law if it “applies a rule t hat contradicts the governing law set forth” i n Supreme Court

cases or “i f t h e s t a te court confronts a set of facts that a re m aterially indistinguishable from a decision of [the Supreme Court] an d n e v ertheless arriv e s at a result different from [the Court’s precedent].” Williams v. Taylor , 529 U.S. 362, 4 0 5

- 06 (2000). A state court decision involves a n unreasonable application of c l early established federal law if the state c ourt “correctly identifies the gove r n i n g l e g a l rule but applies it unreasonably to the f acts of a particular prisoner’s case.” Id. at 407-08. The deliberate d eception of a court a n d j urors by the presentation of known f

alse e vi dence violates the Due P r o c e s s Clause of the Fourteenth Amendment. Giglio v. United States , 4 05 U.S. 150, 153 (1972). The “same result obtains when the State, a lthough not soliciting the false evidence, allows it to go uncorrected when it appears.” Id. (quoting Napue v. I llinois , 360 U.S. 264, 269 (1959)). “Although Giglio and N a pue use the term ‘promise’ in referring to covered-up deals, they establish that the c r u x o f a Fourteenth Amendment violation is d eception. A p romise is unnecessary.” Tassin v. Cain , 517 F.3d 770, 778 (5th Cir. 2008). In o r der to obtain relief on his claim, Frank must show that White testified falsely, the State knew the testi mony was false, a nd the testimony was material in that it c ould reasonably have affected the judgment of the jury. See Napue , 360 U.S. at 271. The state a ppellate court determined that under the governing la w f i r s t set forth in N

apue , the facts did not support F r a n k ’ s c laim. The court determined that n o thing in the record indicated that White k new that he would be allowed to withdraw his plea and to plea to a l esser crime. The court further determined that White had n ot been untruthful in his t estimony because he had
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admitted that h e w as testifying in t h e hope that he w ould receive favorable treatment at sentencing. Frank has not shown t he appellate court’s determination to be unreasonable. See Williams , 529 U.S. a t 405-06. U n like in Napue and Tassin , where the witnesses flatly denied a n expectation of a s entence reduction, White acknowledged that he testified because he hoped to g e t time off his sentence. White thus did not t estify falsely. See Napue , 360 U.S. at 271. B e cause 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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