                      UNITED STATES COURT OF APPEALS
                              FOR THE FIFTH CIRCUIT



                                      No. 95-20325
                                    Summary Calendar


EDGAR WARD HAMILTON,
                                                                       Petitioner-Appellant,
                                           versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,
                                                                      Respondent-Appellee.



                       Appeal from the United States District Court
                           For the Southern District of Texas
                                     (93-CV-0069)
                                      March 7, 1996


Before POLITZ, Chief Judge, HIGGINBOTHAM and BENAVIDES, Circuit Judges.
POLITZ, Chief Judge:*
       Edgar Ward Hamilton appeals the denial of his 28 U.S.C. § 2254 petition for writ of
habeas corpus wherein he alleged that his life sentence violated the eighth amendment, that
double jeopardy proscribes the use of an enhanced felony in conjunction with the habitual
offender statute, the evidence of the prior conviction was insufficient and the use of these
convictions was otherwise faulty, and he had ineffective assistance of trial counsel.


   *
     Pursuant to Local Rule 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in Local Rule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.
                                        Background
        Hamilton was indicted for stealing a cordless telephone valued at more than $20 but
less than $200, a misdemeanor. The indictment alleged, however, that he had two prior theft
convictions and, as a result, the charge was enhanced to a felony under former Tex. Penal
Code Ann. § 31.03(e)(4)(C).1
        The indictment also charged that Hamilton had prior felony convictions for forgery
and possession of a controlled substance. Under the habitual offender statute, Tex. Penal
Code Ann. § 12.42(d), a jury may impose a sentence from 25 years to life for a third felony
conviction. The jury convicted Hamilton of the enhanced felony and found two prior felony
convictions for forgery and possession of a controlled substance. The jury then imposed a
life sentence. On direct appeal the conviction and sentence were affirmed.2
        The district court denied the instant habeas petition and also denied Hamilton’s
motion for CPC. We granted CPC and now affirm.


                                         Analysis
        Hamilton contends that his life sentence for a misdemeanor theft -- converted to a
felony because it was a third theft conviction and then enhanced under the Texas habitual
offender statute -- is grossly disproportionate to his crime and thus violates the eighth
amendment. We addressed this issue recently in Smallwood v. Johnson,3 holding that in a
case such as is here presented, we are guided by the Supreme Court’s decision in Rummel



   1
      This section is now codified at Tex. Penal Code Ann. § 31.03(e)(4)(D).
  2
   Hamilton v. State, 1992 WL 17408 (Tex.App. - Houston [14th Dist.] 1992, pet. ref’d.).
   3
      73 F.3d 1343 (5th Cir. 1996).
                                             2
v. Estelle.4 In Rummel, the Court held that a life sentence with an opportunity for parole
did not constitute cruel and unusual punishment where the defendant was convicted of
obtaining $120.75 by false pretenses and had two prior felonies. Based on the teachings of
Smallwood we hold that Hamilton’s life sentence, under the circumstances here presented,
does not violate the eighth amendment.
         Hamilton also contends that the use of an enhanced felony in tandem with the habitual
offender statute constitutes double jeopardy. This contention was also addressed in
Smallwood. We there held that reliance on an enhanced sentence for invocation of the Texas

habitual offender statute does not implicate double jeopardy.
         Hamilton maintains that the trial court improperly relied on prior theft convictions in
applying the habitual offender statute.5 This contention lacks merit. The felonies relied upon
for this aspect of the sentence were forgery and possession of a controlled substance. The
prior theft convictions were used to enchance the instant misdemeanor theft to a felony theft.
Hamilton challenges the use of one of the prior theft convictions, alleging its invalidity
because neither he nor the district attorney signed the waiver of his right to a jury trial. This
is not a challenge of constitutional proportions and may not be raised in a 28 U.S.C. § 2254
petition.6
         Hamilton next challenges the sufficiency of the evidence to support his conviction and
enhancement. We agree with the conclusions reached by the state appellate court that the




   4
       445 U.S. 263 (1980).
   5
       See Rawlings v. State, 602 S.W.2d 268 (Tex.Crim.App. 1980).
   6
   We perforce note that under Texas law at that time he was not required to sign a waiver
and the record reflects that the district attorney signed one.
                                                3
evidence was sufficient.7 Hamilton additionally claims that two prior convictions alleged in
the indictment were not final and therefore could not be used. Texas authority forecloses this
argument and it is Hornbook law that we routinely defer to a Texas court’s interpretation of
Texas law.8
         Finally, Hamilton contends his counsel was constitutionally ineffective. To succeed
on this challenge Hamilton must show that his counsel’s performance was defective and that
his defense was prejudiced thereby.9 To establish prejudice Hamilton must show that his
counsel’s errors were so serious that they rendered the proceedings unfair or the result
unreliable.10 The record does not persuade of either such defective performance or such
prejudice.
         AFFIRMED.




   7
       Hamilton; see Jackson v. Virginia, 443 U.S. 307 (1979).
   8
    Fierro v. Lynaugh, 879 F.2d 1276 (5th Cir. 1989), cert. denied, 494 U.S. 1060 (1990).
   9
       Strickland v. Washington, 466 U.S. 668 (1984).
   10
       See Lockhart v. Fretwell, 113 S.Ct. 838 (1993).
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