McGhee v. Johnson

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 95-10484 Summary Calendar _______________________

CHARLIE LEWIS McGHEE,

Petitioner-Appellant,

versus

WAYNE SCOTT, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the Northern District of Texas (3:94-CV-1037-X) _________________________________________________________________

August 29, 1996

Before JOLLY, JONES, and STEWART, Circuit Judges.

PER CURIAM:*

Appellant McGhee, sentenced to life imprisonment in the

Texas Department of Corrections after a finding that he violated his

deferred-adjudication probation, raises five issues on appeal. Each

of these issues was carefully discussed by the magistrate judge, and

we have little to add to his opinion.

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. In an abundance of caution, however, this court granted CPC

and asked the parties particularly to brief whether McGhee’s due

process rights were violated by the trial court’s alleged imposition

of a predetermined sentence, and whether due process required the

court to hold a separate sentencing hearing after revoking McGhee’s

probation. In regard to the first of these issues, we note the state

court’s statement, when it ruled on McGhee’s habeas petition, that she

sentenced him to life imprisonment because of the offense he had

committed and the additional two burglaries that he committed within

one week of receiving a deferred adjudication. Neither in the

district court nor in this court has McGhee offered evidence or

persuasive argument why the federal courts should not defer to this

finding of historical fact by the state habeas court. The state judge

said she did not impose a “predetermined sentence” on McGhee following

his breach of probation. Like the magistrate judge, we conclude that

finding is supported by the record of the state court proceedings.

As for McGhee’s second complaint that he was entitled to a

separate sentencing hearing, additional briefing shows that argument

to be meritless. To the extent it relies on an alleged violation of

Texas law, that is not cognizable in a federal habeas proceeding. On

the other hand, McGhee cites no federal law creating an entitlement

to a separate hearing in these circumstances. For this court to craft

one in a collateral proceeding would violate the Teague rule of non-

retroactivity.

2 For these reasons, and those assigned by the magistrate

judge, this court affirms the denial of habeas relief.

AFFIRMED.