                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                       August 22, 2006

                                                                Charles R. Fulbruge III
                                                                        Clerk
                               No. 04-20764
                             Summary Calendar




FRED PHILLIP WARNER,

                                         Petitioner-Appellant,

versus

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

                                         Respondent-Appellee.



                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                          No. 4:03-CV-1932
                        --------------------



Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     Fred Warner challenges his conviction of aggravated assault

with a deadly weapon. He contends that counsel’s failure to object

to three convictions listed in enhancement paragraphs resulted in

his being sentenced to 35 years of imprisonment as an habitual


     *
        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opinion should not be published and is not precedent except under the limited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. 04-20764
                                -2-

offender pursuant to TEX. PENAL CODE ANN. § 12.42(d) (Vernon 2003),

within a range of life or 25-99 years of imprisonment, instead of

as a first degree felon pursuant to TEX. PENAL CODE ANN. § 12.42(b)

(Vernon 2003), within a range of life or 5-99 years.

     Warner has not rebutted the correctness of the finding of the

Texas Court of Appeals that he was sentenced pursuant to § 12.42(b)

by clear and convincing evidence.   See 28 U.S.C. § 2254(e)(1).   He

thus cannot demonstrate prejudice arising from counsel’s failure to

object to the enhancement paragraphs.     See Strickland v. Washing-

ton, 466 U.S. 668, 694 (1984).

     Warner also states that, because the state failed to present

evidence regarding his prior convictions, his sentence should have

been 2-20 years.   He does not contend, however, that counsel was

ineffective for advising him to plead “true,” so he has failed to

raise a meritorious ineffective-assistance contention. See Long v.

McCotter, 792 F.2d 1338, 1342 (5th Cir. 1986) (stating that a

“true” plea “waive[d] subsequent challenges to the validity of the

prior conviction[s] set forth in the charge”).

     AFFIRMED.
