     Case: 11-31036       Document: 00512149442         Page: 1     Date Filed: 02/20/2013




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

                                                                            FILED
                                                                         February 20, 2013
                                     No. 11-31036
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ADAM FRANK,

                                                  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. 6:09-CV-1184


Before JONES, DENNIS and HAYNES, Circuit Judges.
PER CURIAM:*
       Following the district court’s denial of his 28 U.S.C. § 2254 petition, this
court granted Adam Frank, Louisiana prisoner #213548, a certificate of
appealability on his claim that the State engaged in prosecutorial misconduct
when it failed to correct the testimony of Adam White, who testified against him
at his trial. Frank’s motion to file his reply brief out of time is GRANTED.
       Frank argues that White falsely denied that his testimony was given
pursuant to a deal with the State wherein White was allowed to withdraw his

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  No. 11-31036

guilty plea to armed robbery and to plead guilty to a lesser included offense of
conspiracy, for which he received a five year sentence. Frank attempted to
support his claim with the transcript of White’s guilty plea, which was not
presented to the state courts.
      In Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011), the Supreme Court
held that “review under § 2254(d)(1) is limited to the record that was before the
state court that adjudicated the claim on the merits.” The Court also rejected
the notion that a federal court can consider evidence for the first time on habeas
review if the evidence is offered merely to support a claim that has already been
presented to the state courts. See Lewis v. Thaler,    F.3d     , 2012 WL 5860247
at *5-6 (5th Cir. Nov. 20, 2012) (citing Pinholster, 131 S. Ct. at 1402 n.11).
Further, although the Court acknowledged that state prisoners may sometimes
submit new evidence in federal court, it held that a prisoner may not circumvent
the requirements of § 2254(d)(1) and § 2254(e)(2) in order to so do. See id. at *6.
      We reject Frank’s argument that the holding of Pinholster does not apply
to the circumstances herein. Further, Frank has made no showing that the
transcript may be submitted under the limited circumstances recognized in
Pinholster. Accordingly, we hold that the transcript of White guilty plea “has no
bearing” on this court’s § 2254(d)(1) review. See Pinholster, 131 S. Ct. at 1400.
      Whether the prosecutor knowingly used false and material testimony is
a mixed question of law and fact. Hafdahl v. Johnson, 251 F.3d 528, 532-33
(5th Cir. 2001). Accordingly, we review the district court’s factual findings for
clear error and the conclusions drawn from those facts de novo. Id. We also
must take account of the deferential standards of the Antiterrorism and
Effective Death Penalty Act (AEDPA). See Harrison v. Quarterman, 496 F.3d
419, 423 (5th Cir. 2007). Under the AEDPA, federal habeas relief cannot be
granted on claims adjudicated on the merits in state court unless the
adjudication of the claim resulted in a decision that (1) “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as

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determined by the Supreme Court of the United States”; or (2) “was based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” § 2254(d).
      A state court’s decision is contrary to clearly established federal law if it
“applies a rule that contradicts the governing law set forth” in Supreme Court
cases or “if the state court confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme Court] and nevertheless
arrives at a result different from [the Court’s precedent].” Williams v. Taylor,
529 U.S. 362, 405-06 (2000). A state court decision involves an unreasonable
application of clearly established federal law if the state court “correctly
identifies the governing legal rule but applies it unreasonably to the facts of a
particular prisoner’s case.” Id. at 407-08.
      The deliberate deception of a court and jurors by the presentation of
known false evidence violates the Due Process Clause of the Fourteenth
Amendment. Giglio v. United States, 405 U.S. 150, 153 (1972). The “same result
obtains when the State, although not soliciting the false evidence, allows it to go
uncorrected when it appears.” Id. (quoting Napue v. Illinois, 360 U.S. 264, 269
(1959)). “Although Giglio and Napue use the term ‘promise’ in referring to
covered-up deals, they establish that the crux of a Fourteenth Amendment
violation is deception. A promise is unnecessary.” Tassin v. Cain, 517 F.3d 770,
778 (5th Cir. 2008). In order to obtain relief on his claim, Frank must show that
White testified falsely, the State knew the testimony was false, and the
testimony was material in that it could reasonably have affected the judgment
of the jury. See Napue, 360 U.S. at 271.
      The state appellate court determined that under the governing law first
set forth in Napue, the facts did not support Frank’s claim.            The court
determined that nothing in the record indicated that White knew that he would
be allowed to withdraw his plea and to plea to a lesser crime. The court further
determined that White had not been untruthful in his testimony because he had

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admitted that he was testifying in the hope that he would receive favorable
treatment at sentencing.
      Frank has not shown the appellate court’s determination to be
unreasonable. See Williams, 529 U.S. at 405-06. Unlike in Napue and Tassin,
where the witnesses flatly denied an expectation of a sentence reduction, White
acknowledged that he testified because he hoped to get time off his sentence.
White thus did not testify falsely. See Napue, 360 U.S. at 271. Because Frank
has not shown that the district court erred in rejecting his claim, the judgment
of the district court is AFFIRMED.




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