                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 November 20, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-30600
                           Summary Calendar


DARRELL JOHNSON,

                                     Petitioner-Appellant,

versus

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                     Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
             for the Eastern District of Louisiana
                      USDC No. 2:04-CV-2916
                       --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Darrell Johnson, Louisiana prisoner #258866, appeals from

the denial of his 28 U.S.C. § 2254 petition.    He challenges being

sentenced as a multiple offender after his conviction for

distribution of cocaine.    The district court granted a

certificate of appealability with respect to whether the trial

court’s adjudication of Johnson as a third felony offender

(1) violated the Ex Post Facto Clause when applying the habitual

offender 10-year cleansing period, and 2) due process of law

based on insufficient evidence presented by the State.

     *
       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this opinion should not be published and is not precedent except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. 05-30600
                                -2-

     On habeas review, we review the district court’s findings of

fact for clear error and its legal conclusions de novo.        Martinez

v. Johnson, 255 F.3d 229, 237 (5th Cir. 2001).     Where the

petitioner’s claim has been adjudicated on the merits by the

state court, our review of the state court’s decision is

deferential under § 2254(d), and federal habeas relief cannot be

granted unless the state court’s adjudication either “(1)

resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established federal law, as

determined by the Supreme Court, or (2) resulted in a decision

that was based on an unreasonable determination of the facts in

light of the evidence presented in the state court proceeding.”

See 28 U.S.C. § 2254(d)(1), (2); Miller-El v. Cockrell, 537 U.S.

322, 340, (2003); Hughes v. Dretke, 412 F.3d 582, 588-89 (5th

Cir. 2005).

     Louisiana’s habitual offender statute provides enhanced

penalties for second and subsequent convictions.     See LA. REV.

STAT. ANN. 15:529.1 (West 2005).   Johnson’s claim that application

of the Louisiana habitual offender statute in his case violated

the Ex Post Facto Clause is meritless because the relevant

conviction for ex post facto purposes is Johnson’s conviction for

distribution of cocaine in 1998 and not his prior convictions.

See Gryger v. Burke, 334 U.S. 728, 732 (1948); Perkins v. Cabana,

794 F.2d 168, 169 (5th Cir. 1986).    Johnson has therefore not

established that the state court’s denial of his Ex Post Facto
                           No. 05-30600
                                -3-

Clause claim was contrary to clearly established federal law or

that the state court’s determination of the facts was

unreasonable in light of the evidence before it.     See

§ 2254(d)(1), (2).

     Johnson argues that the State’s evidence of his prior

convictions in 1988 and 1991, which included the testimony of a

latent fingerprint expert and copies of the bills of information,

the docket masters, the plea forms, the minute entries, and the

arrest registers for those convictions, was insufficient to

adjudicate him as a third felony offender and that said

adjudication therefore violated his due process rights.     Johnson

has failed to show that the state habeas court’s denial of this

claim was contrary to clearly established federal law or that the

state court’s determination of the facts was unreasonable in

light of the evidence before it.     See § 2254(d)(1), (2); Jackson

v. Virginia, 443 U.S. 307, 319 (1979); Derden v. McNeel, 978 F.2d

1453, 1458 (5th Cir. 1992) (en banc); LA. REV. STAT. ANN. 15:529.1;

State v. Payton, 810 So. 2d 1127, 1130-32 (La. 2002); State v.

Shelton, 621 So. 2d 769, 779-80 (La. 1993).

     Contrary to Johnson’s assertions, the documentary evidence

did show that, in connection with his 1988 and 1991 convictions,

he was represented by counsel and that he was advised of his

rights before pleading guilty.     Moreover, with respect to his

assertion that there was insufficient evidence of his discharge

dates for the prior convictions, such evidence was not necessary
                            No. 05-30600
                                 -4-

under state law because less than 10 years elapsed between

Johnson’s 1988 conviction and the 1990 commission of his

subsequent predicate felony and less than 10 years elapsed

between his 1990 conviction and the 1998 commission of his third

offense.   See LA. REV. STAT. ANN. 15:529.1(C); State ex rel. Clark

v. Marullo, 352 So. 2d 223, 230 (La. 1977); State v. Thomas, ___

So. 2d ___, 2006 WL 1575491, *7 (La. App. 2006); State v.

Washington, 852 So. 2d 1206, 1211 (La. App. 2003); State v.

Robinson, 831 So. 2d 460, 467 (La. App. 2002); State v. Humphrey,

694 So. 2d 1082, 1088 (La. App. 1997).     The district court’s

judgment is affirmed.   Johnson’s motion for leave to file a reply

brief out of time is granted.

     AFFIRMED; MOTION GRANTED.
