                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 19, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 02-31023
                         Summary Calendar


JEROME BERGERON,

                                     Petitioner-Appellant,

versus

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                     Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
              for the Eastern District of Louisiana
                           (2-CV-729-H)
                       --------------------

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     Petitioner-Appellant   Jerome   Bergeron,   Louisiana    prisoner

#170254, was convicted by a jury of three counts of aggravated rape

and sentenced to three concurrent terms of life in prison without

the benefit of parole, probation, or suspension of sentence. After

denying Bergeron’s 28 U.S.C. § 2254 petition for habeas relief, the

district court granted a certificate of appealability (COA) as to

whether the State violated Bergeron’s constitutional rights by

failing to disclose tape recordings of interviews with the victims

and by failing to disclose that one of the victims had mistakenly

     *
        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this opinion should not be published and is not precedent except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.
identified another individual, Royal Francis, Jr., as having also

sexually assaulted her.        Bergeron filed a motion to file a reply

brief out-of-time, which we now grant.

     A defendant’s right to due process is violated when, on a

request for exculpatory evidence, the prosecution conceals evidence

that is both favorable to the defendant and material to the

defendant’s guilt or punishment.           Brady v. Maryland, 373 U.S. 83,

87   (1963).      Bergeron’s     particular      Brady     claim    implicates

destruction (failure to preserve) material exculpatory evidence.

To meet the standard of constitutional materiality when the State

has failed to preserve evidence, the “evidence must both possess an

exculpatory    value   that    was   apparent   before     the    evidence   was

destroyed, and be of such a nature that the defendant would be

unable to obtain comparable evidence by other reasonably available

means.”      California   v.   Trombetta,     467   U.S.   479,    490   (1984).

Furthermore, the defendant must show that State officials acted in

bad faith.     Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988).

     Although Bergeron shows that there was some testimony at the

hearing tending to support his claim regarding the tape recordings,

he fails to demonstrate that the state court’s rejection of his

claim involved an unreasonable application of clearly established

federal law or was based on an unreasonable determination of the

facts in light of the evidence presented in the state court

proceedings.     28 U.S.C. § 2254(d); see Neal v. Puckett, 286 F.3d

230, 246 (5th Cir. 2002)(en banc), cert. denied sub nom. Neal v.

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Epps, 123 S. Ct. 963 (2003).                 Furthermore, the state court’s

factual findings that the tapes would not have been favorable to

Bergeron and that the State did not act in bad faith must be

accorded a presumption of correctness.            28 U.S.C. § 2254(e)(1).      In

light of all the testimony before the state court, Bergeron fails

to rebut that court’s findings by proffering evidence that meets

the required heightened level of clear and convincing.               See Hill v.

Johnson, 210 F.3d 481, 487 (5th Cir. 2000).

     Bergeron also fails to demonstrate that the state court’s

rejection of his second claim —— that the State violated his rights

under Brady by failing to disclose information that one of the

victims    had    misidentified       Francis   as   another     perpetrator   ——

involved an unreasonable application of clearly established federal

law or was based on an unreasonable determination of the facts in

light of the evidence presented in the state court proceedings.                28

U.S.C. § 2254(d).       As the district court noted, the fact that one

of the victims might have mistakenly identified Francis in a photo

lineup    did    not   reflect   on    the    credibility   of    that   victim’s

allegations that she was sexually assaulted by Bergeron.                 He fails

to show that there is a reasonable probability that the result of

the proceeding would have been different had the information been

disclosed.       Bagley, 473 U.S. at 682.

     As Bergeron has failed to demonstrate that he is entitled to

28 U.S.C. § 2254 relief, we affirm the judgment of the district

court.

                                         3
MOTION GRANTED; JUDGMENT AFFIRMED.




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