                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                            No. 02-10839
                          Summary Calendar



RENATO G. MUELA,

                                     Petitioner-Appellant,

versus

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,

                                     Respondent-Appellee.

                       --------------------
           Appeal from the United States District Court
                for the Northern District of Texas
                       USDC No. 2:99-CV-237
                       --------------------
                         January 22, 2003

Before BARKSDALE, DEMOSS and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Renato G. Muela, TDCJ-ID # 815244, seeks a certificate of

appealability (“COA”) to appeal the denial of his 28 U.S.C.

§ 2254 application challenging his sentence for aggravated

robbery.   To obtain a COA, an applicant must make “a substantial

showing of the denial of a constitutional right.”       See 28 U.S.C.

§ 2253(c)(2).   Because the district court’s dismissal was on the

merits, “[t]he petitioner must demonstrate that reasonable

     *
        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that this opinion should not be published and is not precedent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. 02-10839
                                 -2-

jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.”     Slack v. McDaniel,

529 U.S. 473, 484 (2000).

     Muela first asserts that counsel provided ineffective

assistance by failing to determine whether Muela would accept a

plea agreement.   To prevail on a claim of ineffective assistance

of counsel, a petitioner must show: (1) that his counsel’s

performance was deficient in that it fell below an objective

standard of reasonableness; and (2) that the deficient

performance prejudiced his defense.    Strickland v. Washington,

466 U.S. 668, 689-94 (1984).   Because this claim clearly was

denied on the merits by the state courts, our review is

deferential.    See 28 U.S.C. § 2254(d).   Our review persuades us

that the state courts’ factual determinations were not based on

an “unreasonable determination of the facts in light of the

evidence presented in the State court proceeding,” and that

counsel did not provide ineffective assistance.     See id.   A COA

is denied on this issue.

     We are not persuaded that Muela’s remaining claims were

denied on the merits by the state courts; therefore, our review

is de novo.    See Miller v. Johnson, 200 F.3d 274, 281 n.4 (5th

Cir.) (de novo review proper in absence of clear decision on

merits), cert. denied, 531 U.S. 849 (2000).

     Muela’s claim that the Texas aggravated robbery statute did

not comply with a procedural requirement of the Texas
                           No. 02-10839
                                -3-

Constitution, and therefore that his conviction is void, is

without merit.   Compliance with a procedural requirement of the

Texas Constitution is not a right guaranteed by the U.S.

Constitution, and therefore non-compliance does not constitute an

independent basis for federal habeas relief.     See Estelle v.

McGuire, 502 U.S. 62, 67-68 (1991) (“We have stated many times

that federal habeas corpus relief does not lie for errors of

state law”) (internal quotation omitted)).   A COA is denied on

this issue.

     Muela also argues that he pleaded guilty pursuant to a plea

agreement that he would receive no more than ten years’

imprisonment, that any adjudication would be deferred, and that

he would be placed on probation for ten years.    He asserts that

when he agreed to plead true to violations of the terms of

probation in 1998, he believed the plea agreement limited any

sentence of imprisonment to ten years; however, the trial court

sentenced him to 18 years’ imprisonment.   Muela’s argument is

based on a 1996 “Punishment Recommendation,” which was accepted

by the trial court, that appears to recommend both ten years’

imprisonment and deferred adjudication with ten years’ community

supervision; however, the recommendation for ten years’

imprisonment has been lined through, a deletion that Muela

asserts occurred after the original proceedings.

     Because the district court did not address the validity of

the imprisonment recommendation, and because the record does not
                           No. 02-10839
                                -4-

contain other possibly relevant evidence that could either

support or refute Muela’s assertion (such as transcripts of the

state court hearings or affidavits addressing this issue), we

conclude that reasonable jurists could find the district court’s

assessment of [this] constitutional claim[] debatable or wrong.”

Slack, 529 U.S. 484.   Therefore, COA is GRANTED on the issue of

whether Muela’s punishment recommendation also contained an

agreement as to a term of imprisonment.   The judgment of the

district court is VACATED, and the case REMANDED to allow further

factual development of this issue, and to allow the district

court to address the impact, if any, of this provision on Muela’s

subsequent state proceedings and sentence.

     COA DENIED IN PART, GRANTED IN PART; VACATED AND REMANDED.
