Bernard Smith v. Burl Cain, Warden, No. 12-30680 (5th Cir. 2013)

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Case: 12-30680 Document: 00512302937 Page: 1 Date Filed: 07/10/2013 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 12-30680 Summary Calendar July 10, 2013 Lyle W. Cayce Clerk BERNARD SMITH, Petitioner-Appellant v. BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY, Respondent-Appellee Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:11-CV-519 Before JOLLY, DENNIS, and HAYNES, Circuit Judges. PER CURIAM:* Bernard Smith, Louisiana prisoner # 355507, was convicted in December 1999 after a jury trial of manslaughter and sentenced to 65 years in prison. The district court dismissed his 28 U.S.C. § 2254 petition as untimely. This court granted Smith a COA on the issue of whether the district court erred in finding that Smith was not entitled to the benefit of the prison mailbox rule in connection with his direct review writ application to the state supreme court and thus, that his petition was [not timely] filed[.] Smith v. Cain, No. 12-30680 (5th * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-30680 Document: 00512302937 Page: 2 Date Filed: 07/10/2013 No. 12-30680 Cir. Oct. 26, 2012). Our review is limited to issues for which a COA has been granted. See 28 U.S.C. § 2253(c); United States v. Kimler, 150 F.3d 429, 430 (5th Cir. 1998); Lackey v. Johnson, 116 F.3d 149, 151-52 (5th Cir. 1997). Although pro se briefs are afforded liberal construction, even pro se litigants must brief arguments in order to preserve them. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); see also FED. R. APP. P. 28(a). Because Smith does not address the only issue upon which a COA was granted, he has abandoned that issue on appeal. See Yohey 985 F.2d at 224-25. The judgment of the district court is AFFIRMED. 2

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