           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 28, 2009

                                     No. 08-60804                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



JOSHUA K BRINK,

                                                   Petitioner - Appellant
v.

LAWRENCE KELLY, Superintendent,

                                                   Respondent - Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:06-CV-525


Before REAVLEY, DAVIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       The judgment of the district court denying habeas relief is affirmed for the
following reasons.
       The certificate of appeal was granted to allow appeal of the failure of the
state trial court to give a jury instruction relative to the defendant’s reputation
for peacefulness.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-60804
                              Summary Calendar

      One instruction that was refused read: “The Court instructs the jury that
in case of doubt, Joshua Kevin Brink’s previous good reputation for peacefulness
should turn the scale in his favor.”
      Another refused instruction read: “The Court instructs the jury that
Defendant in a criminal case may offer his good character to evidence the
improbability of his doing the act charged.”
      As has been explained by the Mississippi courts and the federal court,
Mississippi law does not allow a trial judge to comment on testimony or weight
of the evidence, and instructions on the reputation or character of the accused
are objectionable.   Both of the refused instructions were improper under
Mississippi law.
      Mississippi law and the ruling in this case is not contrary to federal law
as determined by the Supreme Court. The writ could not be granted.


AFFIRMED.




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