Melancon v. Ward, No. 08-30950 (5th Cir. 2010)

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Case: 08-30950 Document: 00511070188 Page: 1 Date Filed: 04/05/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 08-30950 Summary Calendar April 5, 2010 Lyle W. Cayce Clerk ROBERT MELANCON, Petitioner-Appellant v. KELLY WARD, Warden, Respondent-Appellee Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:07-CV-5877 Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges. PER CURIAM:* In August 1996, Robert Melancon, Louisiana prisoner # 371029, was convicted by jury verdict of aggravated rape of a male under the age of twelve and was sentenced to life imprisonment. He now appeals from the district court s denial of his 28 U.S.C. § 2254 application. Melancon argues that he did not receive a fair trial because adverse pretrial publicity saturated the community from which the jury was drawn, thereby raising the presumption that he suffered prejudice from jury bias. To * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. Case: 08-30950 Document: 00511070188 Page: 2 No. 08-30950 Date Filed: 04/05/2010 the extent that he argues that he also did not receive a fair trial due to prosecutorial animus, that argument is not cognizable because it was not encompassed by the district court s grant of a certificate of appealability. See Richardson v. Quarterman, 537 F.3d 466, 472 n.2 (5th Cir. 2008). Melancon has failed to show that the state appellate court s resolution of this issue warrants relief under 28 U.S.C. § 2254(d). See Busby v. Dretke, 359 F.3d 708, 713 (5th Cir. 2004). Accordingly, the judgment of the district court is AFFIRMED. 2

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