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

                                                                            FILED
                                                                         February 27, 2008
                                     No. 07-30352
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

ROY S. LINDSEY,

                                                  Petitioner-Appellant,

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                  Respondent-Appellee.


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:03-CV-1546


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Roy S. Lindsey, Louisiana prisoner # 121881, was convicted by a jury of
simple robbery and was sentenced to life imprisonment after being adjudicated
a fourth felony offender. He appeals the district court’s denial of his 28 U.S.C.
§ 2254 petition challenging this conviction. He argues that his trial counsel
rendered ineffective assistance by failing to investigate and challenge his prior
convictions. Lindsey maintains that counsel should have challenged his 1988
simple burglary guilty plea because the plea resulted in a deferred adjudication


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-30352

that could not be counted against him. The statute upon which Lindsey relies
addresses the successful completion of deferred adjudication for first-time simple
drug possession; Lindsey’s burglary conviction is not covered. See LA. REV. STAT.
ANN. 40:983(A), repealed by Acts 1995, No. 1251, § 2. Counsel does not render
ineffective assistance by failing to make frivolous arguments. See Johnson v.
Cockrell, 306 F.3d 249, 255 (5th Cir. 2002).
      Lindsey also contends that his life sentence was excessive in light of
various mitigating factors. To the extent that Lindsey is arguing that he was
entitled to a lesser sentence in light of state law, his claim is not cognizable
under § 2254. See Derden v. McNeel, 978 F.2d 1453, 1458 (5th Cir. 1992). To the
extent that Lindsey is arguing that his life sentence is unconstitutionally
excessive, he has failed to establish that his sentence is “grossly
disproportionate” when compared to the offense committed. See Harmelin v.
Michigan, 501 U.S. 957, 965-66 (1991); Rummel v. Estelle, 445 U.S. 263, 284-85
(1980). Lindsey has not established that the state courts’ denial of relief “was
contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States.”
§ 2254(d)(1). Consequently, the judgment of the district court is AFFIRMED.




                                        2
