* 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this opinion should not be published and is not precedent except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

FILED

February 17, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-30696

Summary Calendar

 

MICHAEL THOMAS,

Petitioner-Appellant,

versus

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

Respondent-Appellee.

--------------------

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 01-CV-3064-C

--------------------

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). 
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

- 3 -

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.