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this opinion should not be published and is not precedent except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

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.

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

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 02-CV-1930

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

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.
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 seconddegree 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.
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.