Mule v. Cain

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-31425
Summary Calendar
PETER MULE,
Petitioner-Appellant,
versus
BURL CAIN, Warden, Louisiana State Penitentiary,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 98-CV-1924
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April 26, 2002
Before DAVIS, BENAVIDES and CLEMENT, Circuit Judges.
PER CURIAM:*
Peter Mule, Louisiana prisoner #73082, appeals the district
court’s denial of his motion to consolidate the instant habeas
petition with a previously filed and dismissed habeas petition.
He also seeks to expand the court’s certificate of appealability
(COA) to include the issues on which the district court denied
relief and did not grant him a COA. See United States v. Kimler,
150 F.3d 429, 430-31 (5th Cir. 1998).
Mule seeks expansion of his COA to include the issue whether
his due process rights were violated by the state’s alleged

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withholding of exculpatory evidence and alleged use of perjured
testimony. Mule’s arguments that the state withheld (1) the name
of the owner of the gun that killed Mr. Corso, (2) the signed
confession of Donald Eugene Smith attesting to the murder of a
man he later identified, who was not Mr. Corso, and (3) police
reports containing slightly differing information, is unavailing
as he fails to show how he would have benefitted from disclosure
of the allegedly exculpatory items. See Brady v. Maryland, 373
U.S. 83, 87 (1963); Spence v. Johnson, 80 F.3d 989, 994 (5th Cir.
1996).
Mule argues that the state violated Giglio v. United States,
405 U.S. 150 (1972), when it disclosed at trial that a
coconspirator, James Knight, was being released from custody and
given total immunity, but did not disclose that Knight would also
receive $10,000 in exchange for his testimony. The disclosure of
Knight’s release and immunity were ample for impugning his
credibility. The additional information regarding the $10,000
payment was simply cumulative. Mule has not made a substantial
showing of the denial of a constitutional right with regard to
his Giglio claim. § 2253(c)(2).
The remainder of Mule’s arguments alleging Brady violations
are inadequately briefed. See Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987); Yohey v.
Collins, 985 F.2d 222, 225 (5th Cir. 1993).
The district court granted COA on the issue whether Mule’s
argument that blacks and women were systematically excluded from
the jury venire was improperly raised in his motion to

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consolidate, thereby justifying the court’s summary dismissal of
the motion to consolidate. The motion to consolidate arose as a
result of Mule’s initial filing of a § 2254 petition which was
dismissed without prejudice for failure to exhaust two of the ten
claims. Mule contends that he returned to state court and
exhausted those two claims, then refiled them in the instant
§ 2254 petition. Mule alleges that he then filed a motion to
consolidate the instant petition with his previously filed (and
dismissed) petition, but that the motion was never ruled upon.
In that motion to consolidate, Mule apparently raised the issue
regarding underrepresentation of blacks and women in the jury
venire.
Mule argues that the district court erroneously concluded
that there was nothing to consolidate because the first petition
had been dismissed prior to the filing of the instant petition.
Mule argues that his motion to consolidate should have been
considered a motion to amend or reopen, and that the court should
have granted it because failure to do so might result in a court
considering as successive a subsequent petition raising claims
not ruled upon by the federal courts. See In re Gasery, 116 F.3d
1051 (5th Cir. 1997)). It is unclear, however, whether Mule
raised his unexhausted claims in the instant petition, as he does
not identify which were the unexhausted claims. As for the issue
on which the district court granted COA, i.e., whether the jury
venire issue was improperly raised in the motion to consolidate,
thereby justifying its summary dismissal, the court should have
considered the motion one to amend Mule’s 28 U.S.C. § 2254

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petition, as there was no longer anything to consolidate due to
dismissal without prejudice of Mule’s earlier petition containing
the unexhausted claims. See, e.g., Ganther v. Ingle, 75 F.3d
207, 211-12 (5th Cir. 1996). However, it is unnecessary to rule
on the propriety of the consolidation ruling at that stage of the
proceedings because, even if properly raised in the motion to
amend/consolidate and treated as a motion to amend, the motion
could have been denied based on futility. Leffall v. Dallas Ind.
Sch. Dist., 28 F.3d 521, 524 (5th Cir. 1994).
Mule does not challenge the state court’s findings on the
jury venire issues, and his arguments do not address those
findings. See State v. Nix, 327 So. 2d 301, 322-23 (La. 1975).
He has therefore failed to show that the state court adjudication
of his jury venire claims resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
established federal law, or that it resulted in a decision that
was based on an unreasonable determination of the facts in light
of the evidence presented. 28 U.S.C. § 2254(d).
The district court did not err in denying Mule’s motion to
consolidate. It’s judgment denying habeas relief is therefore
AFFIRMED.
Mule’s motion to expand his COA is DENIED.

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