* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-30043

Summary Calendar

 

RANDOLPH MATTHIEU,

Petitioner-Appellant,

versus

BURL CAIN, Warden, Louisiana State Penitentiary,

Respondent-Appellee.

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

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 98-CV-2007

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

June 4, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Randolph Matthieu, a Louisiana prisoner (# 117977), moves

this court for a certificate of appealability (“COA”) to appeal

the district court’s denial of his 28 U.S.C. § 2254 habeas corpus

petition. This court issues a COA to an applicant only if he

makes a substantial showing of the denial of a constitutional

right. 28 U.S.C. § 2253(c)(2). 

A review of the record reflects that the district court

overlooked two of the claims that Matthieu raised in his habeas

petition and continues to pursue. First, Matthieu has contended
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No. 02-30043

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that his trial counsel performed ineffectively by failing to

investigate his alleged Post-Traumatic Stress Disorder and

otherwise diminished mental capacity. In its final ruling, the

district court erroneously stated that this particular

ineffectiveness claim, which was fully exhausted in the state

courts, had already been dismissed, when it in fact remained

pending. Second, Matthieu also has argued that the trial

evidence was constitutionally insufficient to support his

conviction of second-degree murder. The district court

apparently overlooked this insufficient-evidence claim in

concluding that Matthieu’s remaining claims involved only

“evidentiary rulings by the state trial court.” Because these

two claims should be addressed by the district court in the first

instance, COA is GRANTED as to these two claims and this case is

VACATED and REMANDED for further proceedings as to these two

claims.

Two other claims raised by Matthieu--that the trial court

erred in admitting a photograph of the murder victim’s body and

in admitting testimony that Matthieu had fled the jurisdiction--

do involve the mere admissibility of evidence under state law and

are thus not cognizable on federal habeas review. See Little v.

Johnson, 162 F.3d 855, 862 (5th Cir. 1998). A third claim, that

the state trial court denied a motion for continuance based on

surprise evidence introduced by the prosecution, similarly

involves a state court evidentiary ruling. See id. In a fourth

claim, Matthieu had not demonstrated that the trial court erred

by allowing the jury to take notes during trial. See Fortenberry
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No. 02-30043

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v. Maggio, 664 F.2d 1288, 1292 (5th Cir. 1982). Because Matthieu

has not made a substantial showing of the denial of a

constitutional right as to these four claims, COA is DENIED as to

these claims.

Matthieu has effectively waived two other claims by failing

to brief them in his COA application: his claims (a) that

counsel performed ineffectively by failing to interview state

witnesses before trial, to call defense witnesses regarding his

alleged flight, and to give him proper advice upon his return for

trial, and (b) that the Louisiana Supreme Court erred in

overruling the trial court’s granting of his motion to suppress

evidence. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir.

1999). 

COA GRANTED IN PART; COA DENIED IN PART; VACATED AND REMAND

FOR FURTHER PROCEEDINGS.