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Fleming v. Cain, 98-30681 (2000)

Court: Court of Appeals for the Fifth Circuit Number: 98-30681 Visitors: 16
Filed: Jan. 31, 2000
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 98-30681 Summary Calendar TERRY FLEMING, Petitioner-Appellant, versus BURL CAIN, Warden, Louisiana State Penitentiary, Respondent-Appellee. - Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 97-CV-2065-H - January 27, 2000 Before JOLLY, JONES, and BENAVIDES, Circuit Judges. PER CURIAM:* Terry Fleming, Louisiana prisoner #114500, appeals from the denial of his application for federal habeas
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                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                             No. 98-30681
                           Summary Calendar


TERRY FLEMING,

                                           Petitioner-Appellant,

versus

BURL CAIN, Warden, Louisiana State Penitentiary,

                                           Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
              for the Eastern District of Louisiana
                      USDC No. 97-CV-2065-H
                       --------------------
                         January 27, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Terry Fleming, Louisiana prisoner #114500, appeals from the

denial of his application for federal habeas corpus relief.

Fleming contends that his guilty plea was not knowing and

voluntary because he was not informed of the specific intent

element of second-degree murder and because his counsel failed to

advise him that he could not be convicted of both felony murder

and armed robbery.




     *
        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that this opinion should not be published and is not precedent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.
                             No. 98-30681
                                  -2-

     We have reviewed the record, the briefs of the parties, and

the applicable law, and we find no reversible error.    When, as in



this case, the record shows that the defendant understood the

charge and its consequences, the failure of the trial court to

explain the elements of the offense does not render the plea

involuntary.     See DeVille v. Whitley, 
21 F.3d 654
, 657 (5th Cir.

1994).   With respect to his assertion that counsel’s

ineffectiveness rendered his plea unknowing and involuntary,

Fleming fails to demonstrate a reasonable probability that he

would have insisted on going to trial but for counsel’s errors.

See Mangum v. Hargett, 
67 F.3d 80
, 84 (5th Cir. 1995).     The state

court’s decision was not contrary to, or an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court.     See 28 U.S.C. § 2254(d)(1).

     AFFIRMED.

Source:  CourtListener

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