                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                   July 21, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-30458
                           Summary Calendar



MICHAEL THOMAS

                       Petitioner - Appellant

     v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY

                       Respondent - Appellee

                       --------------------
          Appeal from the United States District Court
              for the Western District of Louisiana
                      USDC No. 5:03-CV-548
                       --------------------

Before KING, Chief Judge, and SMITH and GARZA, Circuit Judges.

PER CURIAM:*

     Michael Thomas, Louisiana prisoner # 126190, was granted a

certificate of appealability on the issues whether trial counsel

rendered ineffective assistance by not securing testimony of an

alibi witness and whether the evidence was insufficient to

support his conviction.     Thomas v. Cain, No. 04-30458, (5th Cir.

Nov. 9, 2004).

     Thomas argues that the district court should have granted

him habeas relief because the state court’s application of


     *
       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this opinion should not be published and is not precedent except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. 04-30458
                                 -2-

Strickland v. Washington, 466 U.S. 668 (1984), was unreasonable.

28 U.S.C. § 2254(d).   He challenges the Louisiana Second Circuit

Court’s finding of fact as a wrongful substitution of its

judgment and credibility determination for that of the trial

court.

     The district court determined that Thomas’s challenge to the

finding of the Second Circuit rejecting the trial court’s factual

finding was a matter of state procedural law and therefore not

subject to federal habeas review.   See Rudd v. Johnson, 256 F.3d

317, 320 (5th Cir. 2001).   The district court also stated that

Thomas failed to establish by clear and convincing evidence that

the Second Circuit Court erred when it did not defer to the

factual findings of the trial court.   The district court’s

finding is not clearly erroneous because the state court’s

decision did not involve an unreasonable application of

Strickland.

     With regard to Thomas’s assertion that the evidence was

insufficient in light of the new alibi testimony, he is not

entitled to relief because Jackson v. Virginia, 443 U.S. 307

(1979), requires the court to evaluate the “record evidence” to

determine whether a finding of guilt could be supported.    443

U.S. at 318.   The testimony of Charles Cummings was not presented

at trial and therefore cannot be considered in an insufficiency

argument.
                           No. 04-30458
                                -3-

     The state court reviewed the testimony and evidence

presented at trial and concluded that a rational trier of fact

could find Thomas guilty of attempted manslaughter beyond a

reasonable doubt.   The state court’s decision was not in

violation of clearly established federal law and did not involve

an unreasonable determination of the facts.   28 U.S.C. § 2254(d).

Therefore, Thomas is not entitled to federal habeas relief.   The

decision of the district court is AFFIRMED.
