         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                  Fifth Circuit

                                                                FILED
                                                                July 23, 2008
                               No. 07-20782
                             Summary Calendar             Charles R. Fulbruge III
                                                                  Clerk

WILLIE JAMES MITCHELL, JR

                                         Petitioner-Appellant

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                                         Respondent-Appellee


                Appeal from the United States District Court
                     for the Southern District of Texas
                          USDC No. 4:06-CV-3059


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
     Willie James Mitchell, Texas prisoner # 1148418, appeals the district
court’s denial of his 28 U.S.C. § 2254 petition, challenging his guilty plea
conviction for aggravated assault with a deadly weapon. The district court
granted a certificate of appealability concerning the following claims:
(1) Mitchell’s trial counsel was ineffective in that he erroneously advised
Mitchell that his best chance for being sentenced to community supervision


     *
      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should not be published and is not precedent except under the limited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. 07-20782

would be to plead guilty to aggravated assault with a deadly weapon; and
(2) trial counsel failed to advise Mitchell concerning his parole eligibility.
      Mitchell argues that his counsel was ineffective in that he advised him to
reject the State’s first plea offer of 15 years for pleading guilty to burglary of a
habitation and incorrectly advised him that he had a chance of receiving
community supervision if he entered an open plea to the offense of aggravated
assault with a deadly weapon. The state habeas court determined that under
Texas law, Mitchell was eligible for deferred adjudication community
supervision at the time he pleaded guilty and, therefore, Mitchell’s counsel did
not misadvise him about the possibility of being sentenced to deferred
adjudication community supervision; the Texas Court of Criminal Appeals
denied Mitchell’s application based on these findings. In a federal habeas case,
we do not review a decision of the state’s highest court interpreting its own state
law. Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1995). Because Mitchell’s
counsel correctly advised him that he was eligible for deferred adjudication
community supervision at the time he pleaded guilty, the district court did not
err in determined that counsel’s performance was not deficient. See Strickland
v. Washington, 466 U.S. 668, 689-94 (1984).
      Mitchell argues that his counsel was ineffective in that he failed to advise
him concerning his parole eligibility for both burglary of a habitation and
aggravated assault with a deadly weapon. Neither the Supreme Court nor this
court has held that a counsel’s failure to advise a defendant regarding parole
eligibility amounts to ineffective assistance of counsel. See Hill v. Lockhart, 474
U.S. 52, 54-55, 60; James v. Cain, 56 F.3d 662, 667 (5th Cir. 1995). Further,
Mitchell has not shown that he was prejudiced by his counsel’s alleged error. He
argues that if he had been informed of his parole eligibility, he would have
accepted the State’s 15 year plea bargain for a guilty plea for burglary of a
habitation. However, under Hill, a petitioner must show that but for counsel’s
error, he would not have pleaded guilty and would have insisted on going to

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                                   No. 07-20782

trial. See Hill, 474 U.S. at 60. Mitchell does not argue that, had he been advised
correctly concerning his parole eligibility, he would not have pleaded guilty and
instead would have insisted on proceeding to trial. If he had not pleaded guilty
and insisted on going to trial for the burglary of a habitation offense, he would
have faced a minimum sentence of 15 years and a maximum sentence of life
imprisonment. See TEX. PENAL CODE §§ 12.42(c)(1), 30.02(d). Mitchell has
identified no “special circumstances that might support the conclusion that he
placed particular emphasis on his parole eligibility in deciding whether or not
to plead guilty.” See Hill, 474 U.S. at 60; see also Czere v. Butler, 833 F.2d 59,
63-64 (5th Cir. 1987). Therefore, the district court did not err in denying this
claim because Mitchell had not shown that he was prejudiced by his counsel’s
failure to advise him regarding his parole eligibility. See Hill, 474 U.S. at 60; see
also Czere, 833 F.2d at 63-64. The district court’s judgment is AFFIRMED.




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