                      UNITED STATES COURT OF APPEALS
                           For the Fifth Circuit



                                No. 01-10369



                            JAMES EDWARD HALE,

                                                         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
                               (4:99-CV-996-A)


                                June 7, 2002
Before DUHÉ, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

      This   appeal     follows    the    grant     of     a   Certificate    of

Appealability    (COA)    by   this    Court   on   the    issues   of   whether

Petitioner-Appellant James Edward Hale's attorney was ineffective

for (1) not challenging the indictment, and (2) not filing a notice



  *
   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opinion should not be published and is not precedent except under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.
of appeal.       After a thorough review of the parties' briefings and

the record in this case, we AFFIRM the district court's judgment.

       On June 14, 1999, Hale pleaded guilty to four heroin related

offenses    in    Cause   Numbers    0722222D,    0722227A,     0731061A,   and

0725544A in the 213th District Court of Tarrant County, Texas.

Hale was sentenced to 10 years of imprisonment for each of the

heroin offenses.        Those sentences were to run concurrently with

each   other     and   with   his   15-year    sentence   for   a   1992   theft

conviction.       On July 28, 1999, two weeks after the expiration of

the time for filing an appeal, Hale filed a pleading in the Tarrant

County District Court entitled “Motion to Enter Notice of Appeal.”

The motion was denied as untimely filed on August 2, 1999.

       On August 17, 1999, Hale filed a state application for writ of

habeas corpus in which he challenged his heroin conviction entered

in Cause Number 0731061A.            The State of Texas did not file a

response.      Hale argued that his attorney was ineffective for:            (1)

telling him that he faced a 35-year sentence if he did not plead

guilty; (2) not challenging the indictment because the prior theft

convictions should not have enhanced his current offense; and (3)

not filing a notice of appeal.         Hale also made the erroneous claim

that his attorney had not informed him that his 10-year sentences

would not run concurrently with his existing 15-year sentence when

he understood that they would.                However, as noted below, the

magistrate judge indicated that it appears Hale was actually

contending that he was not properly informed               of the nature of

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concurrent sentences, believing that the word “concurrent” was

equivalent to the word “coterminous.”             Nevertheless, in September

1999, the Texas Court of Criminal Appeals denied the application

without a written order.

     On November 30, 1999, Hale filed a 28 U.S.C. § 2254 petition

in the Northern District of Texas challenging all four of his

heroin convictions.   Hale argued that he was led to believe that

his 10-year sentence would run concurrently with his prior 15-year

sentence.    He also argued that his guilty plea was involuntarily

based on erroneous advice from his attorney.                Furthermore, Hale

argued that his attorney was ineffective for not investigating his

two prior theft convictions, for not filing any motions challenging

the indictment, and for not filing an appeal. Respondent-Appellee,

Janie Cockrell, Director, Texas Department of Criminal Justice,

Institutional Division (“the Director”), filed a motion to dismiss

the petition, alleging that it contained both exhausted (the heroin

conviction   challenged    in   the       state    habeas   application)   and

unexhausted claims (the other three heroin convictions).

     A magistrate judge agreed with the Director and recommended

that Hale's petition be dismissed without prejudice for failure to

exhaust his claims pertaining to the three heroin offenses in state

court, which resulted in a mixed petition.              The district court,

however, refused to adopt the recommendation, noting that Hale had

cited to the case number of the lead state case.             As a result, the

district court concluded that Hale's arguments were applicable to

                                      3
all four of his convictions and that the outcome would have been

the same had Hale listed all four case numbers.               The district

court, therefore, denied the Director's motion to dismiss and

returned the case to the magistrate judge.

      Upon reconsideration of Hale's claims, the magistrate judge

determined that Hale's sentences for the four heroin convictions

were, in fact, ordered to run concurrently with each other and with

the   15-year   sentence   for   his   prior    theft   convictions.   The

magistrate judge concluded that “Hale's real complaint is that he

was mislead into believing that the subject four sentences would

expire at the same time as the fifteen-year sentence, and therefore

the sentences were also to have been imposed coterminously.”

According to the magistrate judge, there was no support in the

record for such a claim.         The magistrate judge concluded that

Hale's guilty plea was entered voluntarily and knowingly and was

not induced by erroneous information.           The magistrate judge also

concluded that Hale's attorney adequately informed him about the

consequences of his plea; that Hale could not raise ineffective

assistance of counsel claims other than those related to the

voluntariness of his plea; and that Hale had waived his right to

appeal as part of his plea and, therefore, his attorney was not

ineffective for not filing a notice of appeal.

      On January 17, 2001, the magistrate judge recommended that

Hale's petition be dismissed.              The magistrate judge gave the

parties until February 7, 2001, to file objections, which Hale did

                                       4
on February 5, 2001.           Hale's pleading entitled “Objections to

Magistrate's Findings, Conclusions and Recommendations,” however,

was stricken from the record because he failed to include a

completed    certificate       of   service.     On   February    8,   2001,   the

district court concluded that Hale had not filed objections and

ordered that his § 2254 petition be dismissed.              The district court

also concluded that, even if it had considered Hale's objections,

the court would have found that he was not entitled to habeas

relief.

     Hale filed a notice of appeal, which the district court

construed as a motion for a COA and denied.              Hale then sought a COA

from this Court and raised three ineffective assistance of counsel

arguments:      (1)    that     his   attorney    was    ineffective    for    not

challenging his indictment, which he argued improperly allowed a

prior state jail felony to enhance his instant state jail felony;

and (2) that his attorney failed to file a notice of appeal.                   Once

again, Hale also made the same erroneous argument that he did in

the state court regarding his understanding about whether his

sentences were to run concurrently.               In July 2001, this Court

denied a COA for Hale's ineffective assistance of counsel claims

relating to the voluntariness of the plea.                 However, a COA was

granted   on   the    issues    regarding      whether   Hale's   attorney     was

ineffective for not challenging the indictment and for failing to

file a notice of appeal.

     Having considered the parties' briefs and the entire record in

                                         5
this case, we affirm the district court's order.                          First, in

response to the Director's contentions, we find that the district

court correctly concluded that Hale's two ineffective assistance of

counsel    arguments       apply    equally    to    all   four   of    his   heroin

convictions.      Hale presented the claims to the state habeas court,

there were documents in the state habeas record indicating that he

pleaded guilty to four heroin charges, and there was no indication

that the outcome of the state habeas proceeding would have been

different.       See Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir.

1998)     (noting      that    a    petitioner      satisfies     the    exhaustion

requirement       by   raising      in   the     state’s    highest      court    the

“substantial equivalent” of his federal habeas arguments).

       Second, we find that the district court properly concluded

that    Hale's    claims      of   ineffective      assistance    of    counsel   are

unsupported by the record.           The record indicates that, contrary to

Hale's contentions, the indictment was sufficient.                      Under Texas

law, charges set forth in an indictment are based in part on a

defendant's previous offenses. Hale had previous theft convictions

in 1989 and 1992.       Under pre-1994 law, Hale's previous convictions

were felonies, which would result in his heroin charge being

enhanced to a second-degree felony with a 20 year maximum sentence.

Under the current law, Hale's convictions are “state jail felonies”

that would result in an enhancement to only a third-degree felony

with a 10 year maximum sentence.                 Hale argues that he should



                                          6
receive the benefit of the current law.   However, we do not believe

that the current law applies to Hale's previous convictions.2

Therefore, we conclude that the indictment was not deficient and

that Hale's counsel was not ineffective for failing to challenge

it. See generally Hill v. Lockhart, 474 U.S. 52 (1985); Blackledge

v. Allison, 431 U.S. 63 (1977).

      We also note that the record is absent of any convincing

evidence that Hale timely instructed his attorney to pursue a

direct appeal or assist him with a pro se appeal after the entry of

the guilty pleas.   To the contrary, the record indicates that his

attorney was unaware that Hale wanted to appeal until after she

received his letter posted on August 12, 1999, which was beyond the

allowable time for properly filing a notice of appeal.       Hale's

counsel, therefore, cannot be said to have been ineffective in this

respect.   See Roe v. Flores-Ortega, 528 U.S. 470, 477-78 (2000)

(rejecting a bright line rule that counsel must file a notice of

appeal unless the defendant specifically instructs otherwise).

      For the foregoing reasons, we AFFIRM the district court.




  2
   Our research indicates that the only Texas court to address this
issue did so in an unpublished opinion in which it concluded that
a felony offense committed before the 1994 revisions would remain
the same for enhancement purposes after the revisions became
effective. See Perkins v. State, 2000 WL 61648 (Tex. App.–Dallas
Jan. 26, 2000). We recognize that unpublished opinions carry no
precedential value, however, we note that our opinion in the
present case is consistent with Perkins.

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