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

                                                 FILED
                                                                           August 5, 2009

                                     No. 08-30330                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



SHANE DEMARCUS LEMONS

                                                   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. 1:07-CV-1788


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
       Petitioner-Appellant Shane Demarcus Lemons appeals the denial of his
habeas corpus petition brought under 28 U.S.C. § 2254. We affirm.
                                              I
       Lemons was convicted at a bench trial of one count of aggravated rape and




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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was sentenced to life in prison. On direct appeal, Lemons asserted that the
evidence was insufficient to support his conviction and that the trial court erred
in failing to order a presentence investigation (PSR) and IQ test before
sentencing; his conviction and sentence were affirmed. The Louisiana Supreme
Court denied Lemons’s petition for a writ of certiorari, which raised the same
grounds for relief.
       Lemons filed a state postconviction application, asserting that the trial
court erred in finding that he had knowingly waived his right to a jury trial. The
trial court denied the petition. Lemons did not seek writs from the denial of
relief. Lemons then filed the instant 28 U.S.C. § 2254 petition, asserting that
the evidence was insufficient to support his conviction, that he was denied due
process because the trial court failed to order a PSR and IQ test, and that he
would suffer a miscarriage of justice if his habeas petition were denied because
he was innocent of rape. The magistrate judge issued a report, recommending
that relief be denied. With respect to the sufficiency claim, the magistrate judge
considered the factual findings made by the state appellate court and
determined that there was sufficient evidence of aggravated rape based on
Lemons’s confession to the police, the physical evidence, and the victim’s
testimony. Lemons objected to the magistrate judge’s report. The district court
conducted an independent review, adopted the magistrate judge’s report, and
denied Lemons’s § 2254 petition with prejudice. Lemons sought a certificate of
appealability only as to the sufficiency of the evidence, which a judge of this
court granted.1

       1
         Lemons waived his PSR and IQ test claims by failing to raise them in his brief in
support of his application for a certificate of appealability and does not make any arguments
relating to those claims here. See Hughes v . Johnson, 191 F.3d 607, 613 (5th Cir. 1999).

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                                        II
      “In reviewing a ruling on the merits of a habeas claim, the district court’s
findings of fact are reviewed for clear error; its conclusions of law, de novo.”
Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003). The Antiterrorism and
Effective Death Penalty Act (“AEDPA”) governs this case. Under AEDPA, a
federal court may not grant habeas relief after an adjudication on the merits in
a state court proceeding unless the adjudication of the claim (1) “resulted in a
decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States” or (2) “resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). The state court’s factual determinations “shall
be presumed to be correct”, and the petitioner has the “burden of rebutting the
presumption of correctness by clear and convincing evidence.” Id. § 2254(e)(1).
                                       III
      On appeal, Lemons repeats his assertion that the evidence was insufficient
to support his aggravated rape conviction. In determining whether a state
conviction is supported by sufficient evidence, the court considers whether “after
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Aguilar
v. Dretke, 428 F.3d 526, 534–35 (5th Cir. 2005). Under Louisiana law, rape
occurs when an offender has nonconsensual anal, oral, or vaginal sexual
intercourse with another individual; any degree of penetration is sufficient. La.
R.S. 14:41. “Any penetration, however slight, of the aperture of the female


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genitalia, even its external features, is sufficient.” State v. Bertrand, 461 So. 2d
1159, 1162 (La. Ct. App. 1984). A rape is aggravated if the victim is under the
age of 13. La. R.S. 14:42(A)(4).
      The state appellate court summarized the evidence of the issue as follows.
The victim, B.T., was Lemons’s niece and was nine years old on March 21, 2004,
the date the crime occurred. B.T. testified that on that evening she went to
Lemons’s bedroom. While she was there, Lemons pulled her into the room,
touched her “in the front,” pulled her onto the bed, pulled down both of their
pants, laid on top of her, and put his penis on her. She stated that she did not
feel Lemons’s penis on the inside of her private part. Shameka Butler testified
that she observed B.T., naked from the waist down, on top of Lemons and
immediately informed B.T.’s parents. B.T.’s father angrily confronted Lemons,
who fled the house and went to the police to confess. During questioning,
Lemons twice stated that he had put the head of his penis in B.T.’s vagina. At
trial, Lemons denied that any penetration had taken place, but acknowledged
that he touched B.T. “on her private.” When questioned about the discrepancy
between his confession and his trial testimony, Lemons stated that he was
confused and nervous during the officers’ questioning. The trial court rejected
Lemons’s assertions and credited the statements made during his police
confession. Dr. Francis Brian testified about the victim’s examination report
because the examining physician, Dr. Wesley Dyer, had died before trial. Dr.
Dyer’s notes included a sexual assault history containing a description of the
assault provided by the victim indicating that B.T. had stated that Lemons had
penetrated her vaginally. Although Dr. Dyer’s notes indicated that B.T.’s hymen
was intact and that there was no obvious trauma, Dr. Brian testified that a


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portion of Lemons’s penis could have entered B.T.’s body without rupturing the
hymen or causing obvious trauma. Further, Dr. Dyer was unable to admit his
fingertip into the vaginal orifice, but found bloody aspirate when washing the
area. Dr. Brian testified that such a finding was unusual in a nine-year-old girl
and signifies either trauma further inside the body or an infection.
       Lemons notes that the victim’s testimony at trial did not establish
penetration but instead only showed a “touching” of the vagina. He contends
that in light of the absence of corroborating medical evidence or victim
testimony, there was insufficient evidence to establish his guilt beyond a
reasonable doubt. He further argues that under Louisiana law, “an accused
party cannot be legally convicted on his own uncorroborated confession without
proof that a crime had been committed by someone; in other words, without
proof of the corpus delicti.” State v. Cruz, 455 So. 2d 1351, 1355 (La. 1984).
       We have no doubt that in light of Lemons’s confession, the victim’s
testimony, and the medical evidence, the state court’s conclusion that the
Jackson standard was satisfied was not unreasonable. Moreover, Lemons’s
reliance on the corpus delicti doctrine is misplaced: Louisiana’s corpus delicti
requirement is not constitutionally mandated.2 See West v. Johnson, 92 F.3d
1385, 1393–94 (5th Cir. 1996); Autry v. Estelle, 706 F.2d 1394, 1407 (5th Cir.



       2
          In any case, the Louisiana corpus delicti rule does not apply to every element of the
offense. See State v. Martin, 645 So. 2d 190, 194 (La. 1994) (“The rule should not be extended
to add a requirement that independent evidence corroborate every element of the crime
admitted in the accused’s statement, the general reliability of which has been corroborated.
Corroborating evidence need only show the essential injury involved in the charged
crime . . . in order to establish the reliability of the inculpatory statements of the accused; the
corroborating evidence need not show every element in the definition of the charged
crime . . . .”). Here, there is sufficient corroborating evidence to establish that Lemons was
engaged in improper sexual activity with B.T.

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1983) (“[S]uch a state rule of ‘corpus delecti’ has no independent constitutional
footing.”). The district court did not err in denying Lemons’s federal habeas
petition.
                                       IV
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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