                         REVISED JUNE 25, 2002

                    UNITED STATES COURT OF APPEALS
                         For the Fifth Circuit



                              No. 00-11279



                             ARTURO GALVAN,

                                                    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
                              June 6, 2002


Before DAVIS, DeMOSS, and STEWART, Circuit Judges.

DeMOSS, Circuit Judge:

      In January 1996, Arturo Galvan was convicted by a jury in

state court of aggravated kidnaping. Galvan pleaded true to repeat

offender charges and was sentenced to 40 years of imprisonment.

His   conviction   and   sentence    were    affirmed    on   direct   appeal.

Galvan’s first of two state habeas applications, pertaining to the

revocation of his probation which was used to enhance his sentence,
was denied by the Texas Court of Criminal Appeals without a written

order.   Galvan’s second state habeas application was filed on

September 21, 1998, and was also denied by the Texas Court of

Criminal Appeals.    Galvan then filed a § 2254 petition raising

several claims, including: (1) ineffective assistance of counsel

for failing to convey a plea bargain offer; (2) an erroneous jury

charge; and (3) ineffective assistance of counsel for failing to

object to the erroneous jury charge.   Galvan’s petition was denied

by the district court and this Court granted a COA on all of the

above issues.

                              BACKGROUND

     On December 3, 1994, Arturo Galvan was driving with Michael

Beck and Morgan Rehbeger when he saw fourteen-year-old Brandy

Rigsby at a pay phone with her boyfriend Jason Rankin.   Galvan and

his companions surrounded the couple, but Rankin evaded them by

running away.   Galvan then coerced Rigsby into entering the car by

threatening her and indicating that he had a firearm.       Rigsby

entered the car and Rehbeger and Beck got into the back seat.   They

drove to a nearby Park & Ride where Galvan forced Rigsby to have

sexual intercourse with him.    They then drove Rigsby back to the

pay phone and released her.

     On January 18, 1996, Galvan was convicted by a jury of

aggravated kidnaping which was enhanced by two prior convictions.

Before the trial, the state made a plea offer of 25 years, but this



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offer was rejected.     The jury assessed punishment at 40 years’

imprisonment.    Galvan’s conviction was affirmed on March 14, 1997,

by the Court of Appeals for the Second District of Texas, and his

petition for discretionary review was refused by the Texas Court of

Criminal Appeals on October 1, 1997.

     Galvan filed a state habeas application on September 21, 1998.

On October 20, 1999, the Texas Court of Criminal Appeals denied his

application without written order, relying on the findings of the

trial court without a hearing.     Galvan then filed a federal habeas

petition on November 1, 1999.      On May 1, 2000, a magistrate judge

entered recommendations and on September 22, 2000, the district

court entered final judgment denying Galvan’s petition for writ of

habeas corpus.

                              DISCUSSION

Was Galvan’s counsel ineffective for failing to advise Galvan to
accept a plea offer?

     Galvan argues that his counsel was ineffective for failing to

advise him to accept the state’s plea offer.                 Galvan’s family

retained Charles Roach to represent him, and they contracted to pay

Roach $1,600 as a retainer and to continue making monthly payments

of $150 until his total fee of $5,000 was paid.                  Galvan contends

that when the state’s plea offer of 25 years was rejected, $2,950

remained due, indicating that Roach was motivated not by his

client’s best    interest   but   by       his   concern   for    the   remaining

balance.   Galvan alleges that Roach advised his family that the


                                       3
offer   was   “ridiculous,”   despite   the   existence    of   highly

incriminating evidence against Galvan.    Galvan asserts Roach did

not explain the dangers of being convicted, despite Galvan’s own

mistaken beliefs of innocence.

     In response to Galvan’s allegations, the state habeas court

ordered a hearing-by-affidavit on Galvan’s ineffective-assistance-

of-counsel claims.   Roach submitted an affidavit which states:

          My name is Charles H. Roach. I was the attorney of
          record for Arturo Galvan for his criminal cases.
          At all times Mr. Galvan maintained that he was
          innocent of the charges and would not plead guilty.
          Mr Galvan was aware of the pleas offers [sic] of
          the States but did not want to enter into a plea
          bargain.

The state habeas court accepted Roach’s averments and found that

Galvan was aware of the state’s plea offers but maintained his

innocence and chose not to enter into a plea bargain.     The district

court afforded the presumption of correctness to this fact finding

and concluded that Galvan had failed to rebut it with clear and

convincing evidence.   Galvan maintains, however, that the state

court findings failed to resolve the factual issue of the extent

and nature of Roach’s advice to Galvan regarding the plea offer,

and, therefore, that the district court gave improper deference to

the state court’s rejection of this claim. Galvan asserts, because

a fact issue was not properly resolved, he should have been

afforded a hearing in federal court.

     This Court reviews findings of fact for clear error.       United



                                 4
States v. Gipson, 985 F.2d 212, 214 (5th Cir. 1993).                  A factual

finding will be determined to be clearly erroneous only if it

leaves the Court with the definite and firm conviction that a

mistake has been made.      United States v. Scott, 987 F.2d 261, 264

(5th Cir. 1993).       This Court defers to the trier of fact in

resolving conflicts requiring credibility determinations.                United

States v. Samples, 897 F.2d 193, 198 (5th Cir. 1990).

     Under    the   two-prong     test       enunciated   in    Strickland    v.

Washington,   466   U.S.   668,   687       (1984),   Galvan   must   show   that

counsel’s    assistance    was    deficient      and    that   the    deficiency

prejudiced him.     In evaluating the first prong, judicial scrutiny

of counsel’s performance must be highly deferential, and courts

must indulge in a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.                 Id.

at 689.   Under the second prong, Galvan must demonstrate prejudice

by showing that his attorney’s errors were so serious that they

rendered the proceedings unfair or the result unreliable. Lockhart

v. Fretwell, 506 U.S. 364, 372 (1993).

     As we have already noted, the state court ordered a hearing-

by-affidavit in response to Galvan’s claims and chose to believe

Roach’s affidavit to hold that Galvan knew about the plea and chose

not to enter into a plea bargain.             Under pre-AEDPA law, “a fact-

finding procedure that involves credibility determinations and is

based on a ‘paper hearing’ affords the habeas petitioner a full and

                                        5
fair hearing when the state court judge who presided over the

petitioner’s trial conducts the habeas proceeding.” Amos v. Scott,

61 F.3d 333, 347 (5th Cir. 1995).                In this case, Judge Sharen

Wilson presided over Galvan’s trial and conducted the habeas

proceeding.        Judge   Wilson     accepted    the     averments      in    Roach’s

affidavit and her decision to do so acts as an implicit rejection

of Galvan’s allegations and a finding that Galvan was not credible.

See Self v. Collins, 973 F.2d 1198, 1214 (5th Cir. 1992).                       As the

state    court’s    decision     to    deny      relief       was   a   credibility

determination, we conclude that the district court did not err in

presuming that the factual findings of the state court were correct

and that Galvan has not rebutted that presumption with clear and

convincing evidence.

Were the jury instructions erroneous?

     Galvan argues he was denied due process by a jury instruction

that misinformed jurors that good-time credit would count towards

parole   eligibility.       He   contends       that    if    the   jury      had   been

correctly instructed that he was required to serve at least 20

years of a 40-year sentence before becoming eligible for parole,

the outcome of the proceedings, i.e., his sentence, would have been

different.     Galvan      argues     further     that       defense    counsel     was

ineffective for not objecting to the error in the jury charge.

     Improper jury instructions in state criminal trials do not

generally form the basis for federal habeas relief.                        Estelle v.


                                         6
McGuire, 502 U.S. 62, 71-72 (1991) (stating that federal habeas

courts do not grant relief solely on the basis that a jury charge

was erroneous).      In examining habeas claims of improper jury

instructions, the “inquiry is not whether there was prejudice to

the [petitioner], or whether state law was violated, but whether

there was prejudice of constitutional magnitude.”                 Sullivan v.

Blackburn, 804 F.2d 885, 887 (5th Cir. 1986). The relevant inquiry

is whether the failure to give an instruction “by itself so

infected the entire trial that the resulting conviction violates

due   process.”     Cupp     v.   Naughten,   414   U.S.   141,   147   (1973).

Moreover,   there   is   a   strong   presumption     that   errors     in   jury

instructions are subject to harmless-error analysis. Thus, even if

the instruction was erroneous, if the error is harmless, habeas

corpus relief is not warranted.            Brecht v. Abrahamson, 507 U.S.

619, 623-24 (1993). In a habeas proceeding, a constitutional error

is not harmless if it “had substantial and injurious effect or

influence in determining the jury’s verdict.”                 Id. (internal

quotation marks and citation omitted).

      The jury charge at issue provided in pertinent part:

               Under the law applicable in this case, the
            Defendant, if sentenced to a term of imprisonment,
            may earn time off the period of incarceration
            imposed through the award of good conduct time.
            Prison authorities may award good conduct time to a
            prisoner who exhibits good behavior, diligence in
            carrying out prison work assignments, and attempts
            at rehabilitation.     If a prisoner engages in
            misconduct, prison authorities may also take away


                                       7
              all or part of any good conduct time earned by the
              prisoner.

              . . . .

                You may consider the existence of parole law and
              good conduct time.     However, you are not to
              consider the extent to which good conduct time may
              be awarded to or forfeited by this particular
              Defendant. You are not to consider the manner in
              which the parole law may be applied to this
              particular Defendant.

The   portion    of     the    instruction    in   boldface     is   an   incorrect

statement of law, as inmates do not earn time off of the period of

incarceration, but rather, earn the right to be considered for

earlier release due to the award of good time.

      A substantively correct instruction concerning the effect of

the Texas parole laws does not offend the federal constitution.

California v. Ramos, 463 U.S. 992, 1004-05 (1983)(stating that an

accurate instruction on a capital defendant’s eligibility for

parole   or    commutation       of   sentence     does   not   raise     a   federal

constitutional issue); see also Drew v. Collins, 964 F.2d 411, 415-

16 (5th Cir. 1992).           Whether the same is true when the instruction

is substantively incorrect, as in this case, is unclear.                      However,

assuming, arguendo, such an instruction amounts to a constitutional

error, it still does not entitle a defendant to habeas relief

unless there is more than a mere reasonable possibility that it

contributed to the verdict.           Mayabb v. Johnson, 168 F.3d 863, 868

(5th Cir. 1999) (citing Woods v. Johnson, 75 F.3d 1017, 1026-27

(5th Cir. 1996)).        A federal habeas court may not grant relief on

                                          8
trial errors unless the petitioner demonstrates that the error “had

a substantial and injurious effect or influence in determining the

jury’s verdict.”              Brecht, 507 U.S. at 637-38.         The burden of

demonstrating in a collateral proceeding that an erroneous jury

instruction            violated   the   petitioner’s   due   process   rights   is

“greater than the showing required to establish plain error on

direct appeal.”              Henderson v. Kibbe, 431 U.S. 145, 154 (1977).

Moreover, the jury is presumed to have followed the trial court’s

instruction prohibiting consideration of the extent to which good

conduct time might be awarded to or forfeited by Galvan.                 Parker v.

Randolph, 442 U.S. 62, 73 (1979) (“A crucial assumption underlying

that system is that juries will follow the instructions given them

by the trial judge.”), overruled on other grounds by Cruz v. New

York, 481 U.S. 186 (1987); cf., Bagley v. Collins, 1 F.3d 378, 381

(5th Cir. 1993) (finding an instruction by the court to the jury

that it should not consider remarks made by the prosecutor was

sufficient to limit the extent to which the jury considered the

remarks).

        In the present case, though it is clear that the trial court’s

instruction            was   inaccurate,    the   trial   court   gave    further

instructions to the jury that it was to disregard the manner in

which good conduct time would be applied to the defendant.                      The

jury is presumed to have followed this instruction and Galvan has

failed to show that the instruction had a substantial or injurious


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effect on the jury’s decision.             We therefore find that Galvan has

failed to meet his burden of demonstrating that his due process

rights were violated and hold that any error present in the jury

charge was harmless.

        Galvan’s only remaining claim is his ineffective-assistance-

of-counsel claim. Galvan bases this claim on the failure to object

to the erroneous jury charge.             As already stated above, to prevail

on an ineffective assistance of counsel claim, Galvan must show

that his counsel’s performance was deficient and that the deficient

performance prejudiced the defense.                Strickland, 466 U.S. at 687.

As we have already determined that the instruction in the jury

charge did not have a substantial and injurious effect or influence

on    the     jury,    we   find   that   Galvan   cannot   show   any   prejudice

attendant to his counsel’s conduct.                See Mayabb, 168 F.3d at 869

(making a similar finding when it was determined that a jury

instruction regarding the burden of proof in a murder trial did not

have a substantial and injurious effect).

                                      CONCLUSION

        Having carefully reviewed the parties’ respective briefs and

the record, we hold that the district court did not err in denying

Galvan habeas relief.              We therefore AFFIRM the district court’s

decision.

                       AFFIRMED.




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