Semien v. Clerk of Court

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 10, 1996
• Docket: 95-30158
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 96-30158 Summary Calendar __________________

GEORGE PROBST,

Petitioner-Appellant,

versus

C. MARTIN LENSING, WARDEN

Respondent-Appellee.

______________________________________________

Appeal from the United States District Court for the Middle District of Louisiana (94-2608-A) ______________________________________________ September 5, 1996

Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

George Probst, #304494, seeks relief, pursuant to 28 U.S.C.

§ 2254, from his conviction of forcible rape. His argument that

there was insufficient evidence to support his conviction is

nothing more than a challenge to the jury’s credibility

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. determinations and the weight given to adverse evidence. These are

factual matters to which the presumption of correctness of

§ 2254(d) applies, since Probst has failed to establish the

applicability of any of the exceptions to the presumption. See 28

U.S.C. § 2254(d)(1) through (8); Knox v. Butler, 884 F.2d 849, 851

(5th Cir. 1989), cert. denied, 110 S.Ct. 1828 (1990). The district

court did not err in denying relief on this claim.

Nor did the district court err in finding that the

prosecutorial remarks during closing arguments did not violate

Probst’s due process rights. Even assuming a violation of Doyle v.

Ohio, 426 U.S. 610 (1976), it was harmless error under the standard

of review set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993).

AFFIRMED.