                IN THE UNITED STATES COURT OF APPEALS

                           FOR THE FIFTH CIRCUIT



                                   No. 01-10232



DALE LINCOLN DUKE,

                                                               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


                                   May 21, 2002

Before POLITZ, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:

      State prisoner Dale Lincoln Duke appeals the denial of his petition for writ of

habeas corpus under 28 U.S.C. § 2254, in which he challenges his conviction pursuant
to a plea of nolo contendere for aggravated sexual assault of a child younger than

fourteen years of age. He complains that because he was not informed that successful

completion of a sex offender program would require him to admit his guilt, his nolo

plea was not voluntarily, knowingly, and intelligently made. Finding the requirement

collateral to Duke’s plea, we must affirm.

                                  BACKGROUND

      Duke was indicted for aggravated sexual assault of a child. He entered a plea

of nolo contendere to that charge under an agreement that the victim would testify as

to the details of the assault. He acknowledged to the court his understanding that his

plea would have the same effect from a criminal standpoint as a guilty plea. The trial

court found that the evidence substantiated Duke’s guilt and ordered him sentenced to

ten-years probation with adjudication deferred and a fine of $750. The terms of

probation required that he successfully complete a sexual offender treatment program.

      Five years later, the State, alleging that Duke failed to successfully complete the

sexual offender treatment program, moved to proceed with an adjudication of guilt.

Duke had been discharged from the treatment program because he refused to admit

guilt for the sexual assault. The trial court found Duke guilty of aggravated sexual

assault, revoked his probation, and sentenced him to twenty years in prison. Duke did

not appeal the conviction. Instead, he filed an application for writ of habeas corpus in

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state court, which was denied. He followed that denial with the instant action.

                                      ANALYSIS

      Under § 2254, federal courts will not grant an application for a writ of habeas

corpus with respect to claims adjudicated on the merits in state court unless the

proceedings resulted in a decision that was either: (1) contrary to, or involved an

unreasonable application of, clearly established federal law, as determined by the

Supreme Court of the United States; or (2) based on an unreasonable determination of

the facts in light of the evidence presented at the state court proceeding.1 To be

unreasonable under § 2254 a state court’s application of clearly established federal law

must be objectively unreasonable, not merely incorrect or erroneous.2 Otherwise, the

state court’s factual determinations are entitled to a presumption of correctness, and the

petitioner bears the burden of rebutting that presumption by clear and convincing

evidence.3

      Duke complains that his nolo contendere plea was not freely, voluntarily, and

intelligently made because he was not informed that successful completion of a

treatment program depended upon his admitting the sexual assault. He concedes that


      1
          28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 411-12 (2000).
      2
          Id. at 409, 412.
      3
          28 U.S.C. § 2254(e)(1).
                                            3
he agreed to attend counseling as part of his probation, but insists that there is a “big

difference” between the knowledge that he must attend counseling and the knowledge

that he must admit guilt as part of that counseling. Under Texas law, a plea of nolo

contendere has the same effect as a guilty plea4 and, therefore, must be knowingly,

voluntarily, and intelligently made.5 This requires that the defendant be informed of the

consequences of his plea, however, “[t]he defendant need only understand the direct

consequences of the plea; he need not be made aware of every consequence that,

absent a plea of guilty, would not otherwise occur.”6 Duke maintains that the

requirement that he admit his guilt as part of counseling was a direct consequence of

the plea. We are not persuaded.

      In Hobbs v. Blackburn we explained that the direct consequences of a

defendant’s plea are the immediate and automatic consequences of that plea such as the

maximum sentence length or fine.7 The direct consequences of Duke’s plea were that


      4
        Matthew v. Johnson, 201 F.3d 353, 360 n. 9 (5th Cir. 2000), cert. denied, 531
U.S. 830 (2000) (citing TEX. CODE CRIM. P. art. 27.02(5)).
      5
        Brady v. United States, 397 U.S. 742, 755 (1970); Hobbs v. Blackburn, 752
F.2d 1079, 1081 (5th Cir. 1985).
      6
          United States v. Hernandez, 234 F.3d 252, 255 (5th Cir. 2000).
      7
         See, e.g., Hobbs, 752 F.2d at 1082 (holding that the requirement that
defendant be informed are satisfied if the defendant was informed of the maximum term
of imprisonment); Hernandez, 234 F.3d at 256 (explaining that “consequences no
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he would be fined and required to attend treatment, and if he failed to successfully

complete his treatment he would have to serve his deferred sentence. On the other

hand, as recognized by the Seventh Circuit Court of Appeals in Warren v. Richland

County Circuit Court,8 the condition that a defendant admit his guilt as part of a

required rehabilitation program is a collateral consequence.9          Accordingly, the

consequence of which Duke complains is merely incidental to what he clearly knew,

understood and accepted as the consequences of his plea. The revocation was not

immediate in either time or impact because it was contingent upon intervening

circumstances, and it was not automatic because the ability to abide by the probation

conditions was within Duke’s control.10 In addition, even if today we were to declare

the requirement that Duke admit his guilt during his rehabilitation a direct consequence

of his plea, he has failed to demonstrate that this was clearly established federal law at

the time of his plea or the state court decision was based on an unreasonable



matter how unpalatable which are not related to the length or nature of the federal
sentence cannot be considered direct consequences”).
      8
           223 F.3d 454 (7th Cir. 2000), cert. denied, 531 U.S. 1168 (2001).
      9
       Id. at 458 (holding that the possibility that a defendant’s probation might be
revoked due to his refusal to admit guilt during counseling was not a direct
consequence of his sentence).
      10
        See, e.g., id. at 457 (citing State ex rel. Warren v. Schwartz, 579 N.W.2d 698,
708-09 (Wisc. 1998)).
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determination of the facts.

      The judgment of the district court is AFFIRMED.




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