Mule v. Cain

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 29, 2002
• Docket: 01-31425
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-31425 Summary Calendar

PETER MULE,

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-1924 - - - - - - - - - - April 26, 2002

Before DAVIS, BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:*

Peter Mule, Louisiana prisoner #73082, appeals the district

court’s denial of his motion to consolidate the instant habeas

petition with a previously filed and dismissed habeas petition.

He also seeks to expand the court’s certificate of appealability

(COA) to include the issues on which the district court denied

relief and did not grant him a COA. See United States v. Kimler,

150 F.3d 429, 430-31 (5th Cir. 1998).

Mule seeks expansion of his COA to include the issue whether

his due process rights were violated by the state’s alleged

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-31425 -2-

withholding of exculpatory evidence and alleged use of perjured

testimony. Mule’s arguments that the state withheld (1) the name

of the owner of the gun that killed Mr. Corso, (2) the signed

confession of Donald Eugene Smith attesting to the murder of a

man he later identified, who was not Mr. Corso, and (3) police

reports containing slightly differing information, is unavailing

as he fails to show how he would have benefitted from disclosure

of the allegedly exculpatory items. See Brady v. Maryland, 373

U.S. 83, 87 (1963); Spence v. Johnson, 80 F.3d 989, 994 (5th Cir.

1996).

Mule argues that the state violated Giglio v. United States,

405 U.S. 150 (1972), when it disclosed at trial that a

coconspirator, James Knight, was being released from custody and

given total immunity, but did not disclose that Knight would also

receive $10,000 in exchange for his testimony. The disclosure of

Knight’s release and immunity were ample for impugning his

credibility. The additional information regarding the $10,000

payment was simply cumulative. Mule has not made a substantial

showing of the denial of a constitutional right with regard to

his Giglio claim. § 2253(c)(2).

The remainder of Mule’s arguments alleging Brady violations

are inadequately briefed. See Brinkmann v. Dallas County Deputy

Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987); Yohey v.

Collins, 985 F.2d 222, 225 (5th Cir. 1993).

The district court granted COA on the issue whether Mule’s

argument that blacks and women were systematically excluded from

the jury venire was improperly raised in his motion to No. 01-31425 -3-

consolidate, thereby justifying the court’s summary dismissal of

the motion to consolidate. The motion to consolidate arose as a

result of Mule’s initial filing of a § 2254 petition which was

dismissed without prejudice for failure to exhaust two of the ten

claims. Mule contends that he returned to state court and

exhausted those two claims, then refiled them in the instant

§ 2254 petition. Mule alleges that he then filed a motion to

consolidate the instant petition with his previously filed (and

dismissed) petition, but that the motion was never ruled upon.

In that motion to consolidate, Mule apparently raised the issue

regarding underrepresentation of blacks and women in the jury

venire.

Mule argues that the district court erroneously concluded

that there was nothing to consolidate because the first petition

had been dismissed prior to the filing of the instant petition.

Mule argues that his motion to consolidate should have been

considered a motion to amend or reopen, and that the court should

have granted it because failure to do so might result in a court

considering as successive a subsequent petition raising claims

not ruled upon by the federal courts. See In re Gasery, 116 F.3d

1051 (5th Cir. 1997)). It is unclear, however, whether Mule

raised his unexhausted claims in the instant petition, as he does

not identify which were the unexhausted claims. As for the issue

on which the district court granted COA, i.e., whether the jury

venire issue was improperly raised in the motion to consolidate,

thereby justifying its summary dismissal, the court should have

considered the motion one to amend Mule’s 28 U.S.C. § 2254 No. 01-31425 -4-

petition, as there was no longer anything to consolidate due to

dismissal without prejudice of Mule’s earlier petition containing

the unexhausted claims. See, e.g., Ganther v. Ingle, 75 F.3d

207, 211-12 (5th Cir. 1996). However, it is unnecessary to rule

on the propriety of the consolidation ruling at that stage of the

proceedings because, even if properly raised in the motion to

amend/consolidate and treated as a motion to amend, the motion

could have been denied based on futility. Leffall v. Dallas Ind.

Sch. Dist., 28 F.3d 521, 524 (5th Cir. 1994).

Mule does not challenge the state court’s findings on the

jury venire issues, and his arguments do not address those

findings. See State v. Nix, 327 So. 2d 301, 322-23 (La. 1975).

He has therefore failed to show that the state court adjudication

of his jury venire claims resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly

established federal law, or that it resulted in a decision that

was based on an unreasonable determination of the facts in light

of the evidence presented. 28 U.S.C. § 2254(d).

The district court did not err in denying Mule’s motion to

consolidate. It’s judgment denying habeas relief is therefore

AFFIRMED.

Mule’s motion to expand his COA is DENIED.