In its Order of May 19, 1986, the Court denied appellant's application for a certificate of probable cause (CPC) because Beasley failed to make a substantial showing that he had been denied a federal right. Brogdon v. Blackburn, 790 F.2d 1164, 1167 (5th Cir.1986). Before the district court Beasley alleged that his guilty plea in a Texas state court was involuntary because the trial court failed to apprise him of his privilege against self-incrimination as well as the range of punishment to which he was exposed. He further alleged that his confession was involuntary because it was improperly induced. His counsel was ineffective, he claimed, because of a variety of purported derelections, including counsel's alleged failure to explain the waiver consequences of a guilty plea.

In his district court and appellate CPC pleadings, however, Beasley did not challenge the magistrate's findings that the trial court did not fail to apprise Beasley of his privilege against self-incrimination as well as the range of punishment to which he was exposed. This Court noted that claims raised in the district court but not pressed on appeal are deemed abandoned. Order at 2 (citing Hobbs v. Blackburn, 752 F.2d 1079, 1083 (5th Cir.), cert. denied, --- U.S. ----, 106 S. Ct. 117, 88 L. Ed. 2d 95 (1985); Davis v. Maggio, 706 F.2d 568, 571 (5th Cir.1983) ).

Consequently, Beasley's remaining appellate claims--that his confession was involuntary and tainted by an illegal arrest, and that his trial counsel was ineffective--were deemed waived because a voluntary guilty plea generally waives all nonjurisdictional defects. Order at 2-4. Beasley did not complain of defects in the guilty-plea proceeding, and this Court emphasized that Beasley did not challenge his attorney's effectiveness "as it related to 'the voluntary and intelligent character of the guilty plea'1 ... but only as it relates to his attorney's alleged failures to litigate the 'deprivation of [Beasley's] constitutional rights that occurred prior to the entry of the guilty plea.' " Id. at 3-4 (quoting Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235 (1973) (footnote added) ).

In his rehearing motion, Beasley agrees that he abandoned his claims concerning the trial court's failure to apprise him of his privilege against self-incrimination and the punishment range to which he was exposed. He insists, however, that he preserved his challenge to the voluntariness of his guilty plea when he challenged his trial counsel's effectiveness. He asserts that this claim was made in his habeas pleadings before the district court as well as in his objections to the magistrate's report and recommendation (R & R) and subsequent CPC pleadings.

Beasley is correct to the extent that he argued, in his R & R objections, that the alleged ineffective assistance of counsel rendered his guilty plea involuntary. Nevertheless, in his district court CPC application he confined his arguments to his attorney's alleged pre-guilty-plea litigational deficiencies. This limiting focus was repeated in his CPC application before this Court.

Contrary to Beasley's rehearing-motion assertion, he did not clearly present on appeal his belated claim challenging his attorney's effectiveness "as it related to the voluntary and intelligent character of the guilty plea." In addition, no liberal construction of the pleadings within the meaning of Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 595-96, 30 L. Ed. 2d 652 (1972) (per curiam), is warranted because Beasley is represented by counsel before this Court. Finally, as noted in Vail v. McCotter, No. 85-2546 (5th Cir., Jan. 16, 1986) (unpublished Order) (attached), "[a]n unsuccessful applicant who desires plenary determination whether this Court should grant a [CPC] can either file no motion therefor in this Court, Fed. R. App. P. 22(b), or he must assert in his [CPC] motion to this Court ... all issues which he desires to present on appeal." Id. at 4-5. Beasley chose the latter route; conservation of judicial resources compels this Court to review only those claims presented to it and to abstain from arguing each non-pro se litigant's case for him.

Beasley iterates his earlier CPC arguments concerning the application of res judicata principles to a state-court judgment holding, in an appeal from a related conviction stemming from the same arrest made in this case, that the arrest was illegal. He also maintains that this Court should have addressed his contention that the district court failed to make an independent determination concerning the voluntariness of his confession in this case. However, these claims present neither a jurisdictional defect nor call into question "the very power of the State to bring the defendant into court to answer the charge against him[,]" Long v. McCotter, 792 F.2d 1338, 1343-45 (5th Cir., 1986) (citing Haring v. Prosise, 462 U.S. 306, 320, 103 S. Ct. 2368, 2376, 76 L. Ed. 2d 595 (1983) ), because they implicate only the "deprivation of constitutional rights that occurred prior to the entry of the guilty plea[,]" Tollett, 411 U.S. at 266, 267, 93 S. Ct. at 1607, 1608, and thus "do not necessarily or logically conflict 'with the valid establishment of factual guilt.' " Long, at 1343 (quoting Menna v. New York, 423 U.S. 61, 63 n. 2, 96 S. Ct. 241, 242 n. 2, 46 L. Ed. 2d 195 (1975) ).

The petition for rehearing of the order denying a certificate of probable cause is

DENIED.

MICHAEL HARVEY VAIL, Petitioner-Appellant,

versus

O.L. McCOTTER, Director, Texas Department of Corrections,

Respondent-Appellee.

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Appeal from the United States District Court for the

IT IS ORDERED that appellant's application for a certificate of probable cause and leave to appeal in forma pauperis is DENIED. A certificate of probable cause should not be granted unless the unsuccessful petitioner for habeas corpus relief makes a substantial showing that he has been denied a federal right. Fabian v. Reed, 714 F.2d 39, 40 (5th Cir.1983). Appellant has made no such showing relative to any of the issues which he asserts in his application to this Court.

Appellant was convicted in a Texas state court upon an indictment which alleged that he committed burglary by intentionally and knowingly entering a building and attempting to commit and committing theft therein, in violation of Tex.Penal Code Ann. Sec. 30.02(a)(3) (Vernon 1974). He seeks habeas relief on grounds that his state trial court instructed the jury concerning the elements of burglary by entering a building with intent to commit a theft therein, as proscribed by Tex.Penal Code Ann. Sec. 30.02(a)(1) (Vernon 1974).

The Texas Court of Criminal Appeals has held that this constitutes fundamental error requiring reversal upon a direct appeal of a conviction. Whitlow v. State, 567 S.W.2d 522 (Tex.Crim.App.1978). Appellant Vail did not present the point upon his direct criminal appeal, and he does not allege that he asked his attorney to do so. The Texas court also has held that such an error is not so fundamental as to entitle one to relief upon a postconviction petition for habeas corpus. Ex parte Coleman, 599 S.W.2d 305 (Tex.Crim.App.1979) (denying rehearing en banc without opinion).

In Lewis v. Procunier, 746 F.2d 1073 (5th Cir.1984), this Court held that a similar variance between an armed robbery indictment and the jury charge did not entitle the applicant to federal habeas relief. Observing that the evidence amply showed Lewis's guilt under either theory of the offense, the Court concluded: "Under the indictment and jury instruction petitioner had notice of the specific charge against him, was heard on the issues raised by the charge, was convicted on the charge, and was not deprived of due process." 746 F.2d at 1075. The Court held further that Lewis was not entitled to relief on grounds that his attorney was ineffective for failing to object to the variance or to raise the issue upon direct appeal, reasoning that Lewis failed to show prejudice because the state's evidence overwhelmingly supported either theory of the offense. 746 F.2d at 1075-76. This rationale is equally applicable to appellant Vail's case.

Appellant also seeks relief on grounds that his trial court failed to instruct the jury concerning the intent element of the offense as alleged in the indictment, "intentionally and knowingly." Vail did not assert this error upon his direct appeal, either. There is no need to instruct on "intentionally and knowingly" at a trial for burglary under Sec. 30.02(a)(1), because an instruction concerning the requisite specific intent to commit a felony or a theft in the building obviates the instruction as to the more general culpable mental state. McAfee v. State, 658 S.W.2d 200 (Tex.Ct.App.1983). In a trial for a violation of Sec. 30.02(a)(3), however, failure to instruct the jury concerning a culpable mental state such as intentionally or knowingly is fundamental error requiring reversal upon direct appeal. Glenn v. State, 659 S.W.2d 438 (Tex.Crim.App.1983) (en banc); Britton v. State, 653 S.W.2d 438 (Tex.Crim.App.1983).

Nevertheless, analysis pursuant to Lewis concerning this error in the charge shows that appellant Vail is not entitled to federal habeas relief. As in Lewis, the evidence against Vail overwhelmingly shows that he intentionally and knowingly burglarized the building alleged in the indictment, in violation of both Sec. 30.02(a)(1) and Sec. 30.02(a)(3). Moreover, since he cannot show actual prejudice, he is not entitled to habeas relief on grounds that he could have obtained reversal on direct appeal if his counsel had asserted the error. Lewis, 746 F.2d at 1075-76.

Appellant asserts that he desires to assert on appeal that he is entitled to relief because the district court delayed unreasonably in adjudicating the merits of his petition. This does not constitute grounds for federal habeas relief, because it does not implicate the legality of appellant's confinement. See 28 U.S.C. Secs. 2241(c), 2254(a); Moya v. Estelle, 696 F.2d 329, 331 (5th Cir.1983).

In the district court, appellant also contended that his confession of the offense for which he was convicted was obtained by force after denial of his request for counsel; and that it was tainted by his earlier confession to another burglary, which was the product of an illegal arrest. Appellant has not mentioned either of these grounds in his application for a certificate of probable cause and leave to appeal in forma pauperis filed in this Court. This Court has held in many cases that issues which have been presented to the district court but not asserted on appeal are deemed abandoned. E.g., Hobbs v. Blackburn, 752 F.2d 1079 (5th Cir.), cert. denied, --- U.S. ----, 106 S. Ct. 117, 88 L. Ed. 2d 95 (1985); Pate v. Wainwright, 607 F.2d 669 (5th Cir.1979); Lucas v. Wainwright, 604 F.2d 373 (5th Cir.1979).

Accordingly, the Court deems that relative to appeal, appellant has abandoned his habeas grounds concerning the admissibility of his confession. An unsuccessful habeas applicant who desires plenary determination whether this Court should grant a certificate of probable cause can either file no motion therefor in this Court, Fed.R.App.P. 22(b), or he must assert in his motion to this Court for a certificate of probable cause all issues which he desires to present on appeal.

/s/ E. Grady Jolly