               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                       _____________________

                            No. 98-30948
                       _____________________

DARRYL A. CROCKETT,

                                               Petitioner-Appellant,

                              versus

BURL CAIN, Warden, Louisiana State Penitentiary,

                                             Respondent-Appellee.
_________________________________________________________________

           Appeal from the United States District Court
               for the Eastern District of Louisiana
                            (97-CV-1515)
_________________________________________________________________

                         December 28, 1999

Before JOLLY, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     The case before us is a federal habeas appeal stemming from

Darryl Crockett’s thirty-year sentence imposed by the Louisiana

state court for aggravated burglary.    The district court denied

habeas relief, but our court granted Crockett’s request for a

certificate of appealability (“COA”) on the issue of whether his

plea of guilty in Case No. 288-151 was rendered involuntary because

of an alleged breach of his plea agreement.    For the reasons stated

herein, we deny Crockett’s petition for federal habeas relief.

                                 I



     *
      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this opinion should not be published and is not precedent except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.
     A Louisiana jury found Crockett guilty of aggravated burglary

in Case No. 288-383 on April 27, 1982.                He was sentenced to 30

years   under      Louisiana’s        habitual    offender       statute.      See

La.Rev.Stat.Ann. § 15:529.1 (West 1982).              On the same day as his

conviction in Case No. 288-383, he pled guilty to a second count of

aggravated burglary (Case No. 288-151) based on a deal he had with

prosecutors       that     he     would   be   sentenced    to    twenty    years’

imprisonment instead of the maximum thirty years.                    Immediately

after his plea and sentencing in Case No. 288-151, Crockett was

adjudicated a habitual felony offender and resentenced to a thirty-

year term instead.1            On May 12, 1986, the Louisiana Fourth Circuit

Court of Appeals affirmed the judgment and sentence.

     Crockett’s original petition for federal habeas relief raised

thirteen claims          for    relief.    The   district   court    denied   this

petition.      The issue on which our court granted his request for a

COA is: “Whether petitioner’s guilty plea was rendered involuntary

by the prosecutor’s breach of the plea agreement.”                  The district

court dismissed this claim for two reasons:

     (1)       It was procedurally barred because it was time-barred
               under Louisiana law.2

    1
     This sentence was imposed to run concurrently with Crockett’s
thirty-year sentence imposed in Case No. 288-383. Consequently, a
ruling in Crockett’s favor in this appeal may have no effect on the
net amount of time he will serve, as a result of his conviction and
sentence in Case No. 288-383.
           2
         We note that the district court’s decision to raise
procedural default sua sponte was appropriate under Magouirk v.
Phillips, 144 F.3d 348, 358 (5th Cir. 1998). An opportunity to




                                           2
     (2)   The plea was made knowingly and voluntarily, as
           demonstrated by the failure of Crockett and his lawyer to
           object to the longer sentence.

     Finding that this claim is procedurally barred, we affirm the

district court.

                                 II

     We begin our analysis by noting that Crockett’s claim was

never raised in state court; in short, his state habeas remedies

have not been exhausted on this claim.    By the time it was raised

for the first time in federal court, the doors of the state court

had been closed to the claim.   Article 930.8 of the Louisiana Code

of Criminal Procedure states:

     No application for post conviction relief, including
     applications which seek an out-of-time appeal, shall be
     considered if it is filed more than three years after the
     judgment of conviction and sentence has become final
     under the provisions of Article 914 or 922, unless any of
     the following apply:
       (1) The application alleges, and the petitioner proves
     or the state admits, that the facts upon which the claim
     is predicated were not known to the petitioner or his
     attorney.
       (2) The claim asserted in the petition is based upon a
     final ruling of an appellate court establishing a
     theretofore unknown interpretation of constitutional law
     and petitioner establishes that this interpretation is
     retroactively applicable to his case, and the petition is
     filed within one year of the finality of such ruling.
        (3) The application would already be barred by the
     provisions of this Article, but the application is filed
     on or before October 1, 1991.
       (4) The person asserting the claim has been sentenced
     to death.




respond was not necessary because no reasonable response exists.




                                 3
La. Code Crim. Proc. Ann. art. 930.8 (West 1999)(emphasis added).

Crockett’s conviction and sentence became final under article 922

of the Louisiana Code of Criminal Procedure in 1986 after a

Louisiana appellate court affirmed them.    As a result, this claim

is not simply unexhausted, but cannot be addressed by Louisiana

courts   because   of   the   state   law   that   bars    raising   a

thirteen-year-old habeas claim.

     A limit on the scope of federal habeas review is the doctrine

of procedural default. Here, the procedural default arises because

the petitioner failed to exhaust available state habeas remedies

and “the court to which the petitioner would be required to present

his claim in order to meet the exhaustion requirement would now

find the claims procedurally barred.”   Nobles v. Johnson, 127 F.3d

409, 420 (5th Cir. 1997).

     Procedural default may be excused upon a showing of cause and

prejudice or that application of the doctrine will result in a

fundamental miscarriage of justice.   Coleman v. Thompson, 501 U.S.

722, 748-50, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).      But Crockett

has not attempted to, nor could he, make a showing of cause and

prejudice for failing to raise this issue until eleven years after

his sentence became final.     He was represented at the time of

sentencing and on appeal in state court and has had opportunities

to raise this claim previously. Furthermore, the ten-year increase

in sentence is not a fundamental miscarriage of justice.             A

"fundamental miscarriage" implies that a constitutional violation




                                  4
probably caused the conviction of an innocent person. McCleskey v.

Zant, 499 U.S. 467, 502, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).

Crockett makes no such claim here.

                               III

     For the reasons stated herein, the district court’s judgment

denying federal habeas relief is

                                                 A F F I R M E D.




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