               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT
                       _____________________

                            No. 00-31473
                       _____________________

JAMES WALTZ,
                                               Petitioner-Appellant,

                              versus

WARDEN WADE CORRECTIONAL CENTER,

                                               Respondent-Appellee.

__________________________________________________________________

           Appeal from the United States District Court
               for the Western District of Louisiana
                         UDC No. 99-CV-1870
_________________________________________________________________
                          February 8, 2002
Before GARWOOD, JOLLY, and DAVIS, Circuit Judges.

PER CURIAM:*

     James Waltz, a state prisoner, pleaded guilty to manslaughter

in accordance with an eleventh-hour plea agreement with the State

of Louisiana. During the plea hearing, Waltz received the required

warnings and was informed that the court would impose a sentence of

forty years in prison.     He agreed to the terms of the plea

agreement and asserted that he had not been promised anything

outside the agreement.   In his state petition for habeas corpus,

however, Waltz contended that his guilty plea was not knowing and


     *
       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this opinion should not be published and is not precedent except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.

                                   1
voluntary because his attorney, Gregory Caver, induced him to

accept the agreement by promising Waltz that he would have to serve

only five years in prison.   Finding insufficient evidence to show

that Waltz’s attorney had made such a promise before Waltz pleaded

guilty, the state court denied relief.

     Waltz asserted the same claims in his federal habeas petition,

relying in part on the Louisiana Supreme Court’s intervening

decision to sanction Caver for a laundry-list of professional

misconduct including one charge relating to Waltz’s guilty plea.

The district court denied relief.       We granted a Certificate of

Appealability to decide whether Caver induced Waltz to plead guilty

by promising him a five-year prison sentence, and we now affirm the

judgment of the district court.

                                  I

     In 1994, the state charged Waltz with second-degree murder in

connection with the April 1994 death of Dennis Lines.       Shortly

before his trial in state court was scheduled to begin, Waltz

struck a deal with the state and agreed to plead guilty to

manslaughter.   As Waltz concedes, the trial judge explained the

consequences of a guilty plea and informed Waltz that he would

receive a sentence of forty years in prison if he accepted the plea

agreement.   Waltz voluntarily waived his right to a jury trial and

agreed to the forty-year prison term.   Most relevant to the present

question, Waltz also asserted under oath that he had not been

promised “anything whatsoever that has not been said on the record

                                  2
here today.”   The trial court then sentenced him to forty years in

prison.

     In a later petition for post-conviction relief in state court,

Waltz asserted that he accepted the plea agreement only because his

attorney, Gregory Caver, promised that he would have to serve only

five years of his forty-year prison sentence.1      At a February 1998

evidentiary hearing conducted in state court, several of Waltz’s

sisters testified on his behalf.       According to his sisters, Caver

told them that the state had offered Waltz a plea bargain and that

Caver would obtain a pardon for Waltz to reduce the sentence to

five years if they provided him with more money.      Waltz testified

that, because he was not permitted to speak with his sisters during

the negotiations, they signaled their approval of the arrangement

by nodding their heads.2    Based on this testimony, Waltz argued

that his guilty plea was based on Caver’s promise to have his

sentenced reduced to five years.

     The state habeas court, however, did not find Waltz’s account

to be credible.     The court relied instead on the prosecuting

attorney’s testimony that he and Caver had not discussed early


     1
       Caver allegedly assured Waltz that the prosecutor had agreed
to commute Waltz’s sentence after five years because of his medical
condition. Caver did not testify at the hearing, however, because
he could not be located.
     2
       Waltz also testified that Caver coached him during the plea
colloquy by signaling how he should answer the judge’s questions.
The prosecuting attorney, however, testified that he did not notice
any such signals.

                                   3
release or any other form of commutation of Waltz’s sentence.   The

judge who took Waltz’s guilty plea similarly testified that he was

unaware of any promise to release Waltz early.   The state habeas

court therefore denied Waltz’s request for relief because his

guilty plea was voluntary, knowing, and intelligent and was not

tainted by a false promise by Caver.    The state appellate court

affirmed in July 1998, and the Louisiana Supreme Court denied

Waltz’s petition for review in September 1999.

     In June 1999, the Louisiana Supreme Court suspended Caver for

a minimum of five years based on sixteen instances of professional

misconduct, including one count related to Waltz.3   Specifically,

the court found:

          In 1994, James Waltz retained respondent to
          represent   him   in    a   criminal   matter.
          Subsequently, Mr. Waltz pled guilty to
          manslaughter after respondent promised him he
          would receive a two-year sentence. Instead,
          Mr. Waltz received a forty-year sentence.
          Respondent promised to file an appeal and was
          paid $500 to do so. Respondent failed to file
          the appeal, communicate with his client, and
          account for and return the unearned portion of
          the legal fee.

In re Caver, 733 So.2d 1208, 1209 (La. 1999).

     In his federal habeas petition, Waltz again argued that his

guilty plea was induced by Caver’s promise that he would not have




     3
       Although he did not testify during the disciplinary
proceedings, Caver apparently admitted to harming forty-nine
clients.

                                4
to serve more than five years of his sentence.4          After reviewing

the record of the state habeas proceedings, the magistrate judge

concluded that the “State court’s resolution of the facts in light

of the evidence presented was entirely reasonable” and was “based

largely upon credibility calls that are fully supported by the

inconsistencies in the testimony.” The district court accepted the

magistrate judge’s recommendation and denied Waltz’s petition.

Waltz then requested a Certificate of Appealability from this

Court.    We found that he had “made a substantial showing of the

denial of a constitutional right” and granted a COA “with respect

to the issue whether Caver promised Waltz that he would receive a

five-year prison term as part of the plea bargain, and whether the

promise induced Waltz to plead guilty.”

                                    II

     Under the 1996 Antiterrorism and Effective Death Penalty Act

(“AEDPA”), we may not issue a writ of habeas corpus concerning “any

claim    that   was   adjudicated   on   the   merits   in   State   court

proceedings” unless the state court’s adjudication of that claim

(1) unreasonably applied clearly established federal law or (2) was

“based on an unreasonable determination of the facts in light of

the evidence presented at the State court proceeding.”          28 U.S.C.

§ 2254(d); Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see

     4
       Waltz’s federal petition also alleged that the trial judge
impermissibly participated in plea negotiations.     The district
court rejected this contention, and we denied Waltz’s request for
a Certificate of Appealability as to the issue.

                                    5
also Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000).

     Waltz makes arguments under each prong of the statute, but we

find it clear that the state habeas court in this case correctly

applied federal law.    Thus, the central issue is whether the state

habeas court’s conclusion that Waltz’s plea was not induced by

Caver’s alleged promise involved an unreasonable determination of

the facts.

     Although the Supreme Court has declined to adopt a per se rule

rendering    guilty   pleas   invulnerable   to   collateral   attack,   a

defendant seeking to mount such a challenge must overcome the

“formidable barrier” created by the defendant’s sworn statements

during the plea colloquy.     Blackledge v. Allison, 431 U.S. 63, 73-

74 (1977) (citing Fontana v. United States, 411 U.S. 213, 215

(1973)).5    The Court in Mary v. Johnson summarized the applicable

standard:

            [A] plea of guilty entered by one fully aware
            of the direct consequences, including the
            actual value of any commitments made to him by
            the court, prosecutor, or his own counsel,
            must stand unless induced by threats (or
            promises to discontinue improper harassment),
            misrepresentation (including unfulfilled or
            unfulfillable   promises),   or   perhaps   by
            promises that are by their nature improper as
            having   no   proper   relationship   to   the
            prosecutor's business (e.g. bribes).


     5
      See also Barnes v. United States, 579 F.2d 364, 366 (5th Cir.
1978) (“Where, from the transcript, the plea-taking procedures are
clear and regular on their face, a petitioner asserting the
existence of a bargain outside the record and contrary to his own
statements under oath bears a heavy burden.”).

                                    6
467 U.S. 504, 509 (1984) (citation and internal quotation marks

omitted).    The Court has therefore left open the possibility that

a defendant may be entitled to relief if he can show that the

guilty plea was the product of a misrepresentation by his attorney

or by the prosecutor.       See Blackledge, 431 U.S. at 75; see also

Davis v. Butler, 825 F.2d 892, 894 (5th Cir. 1987) (“If Davis's

attorney did promise a pardon within three years, it could have

rendered Davis's guilty plea unknowing and involuntary.” (citations

omitted)).

      In the present case, Waltz was informed of his rights and he

expressly denied the existence of any promises outside the plea

agreement during his colloquy before the sentencing judge.                  To

refute this testimony, Waltz points to his testimony and the

testimony of his sisters at the state habeas hearing indicating

that Caver promised him a shorter sentence than the forty-year

sentence that was formally imposed.

      The state habeas court began by observing that Waltz had the

burden of showing that his guilty plea was involuntary because it

was   the   product   of   fraud   or       misrepresentations   by   counsel.

Applying this standard to the facts in the instant case, the court

found that Waltz’s evidence was not sufficient to show that Caver

had, in fact, made any actual promise of a shorter sentence or an

early release.    Instead, the evidence at most proved that Caver

intended to seek an early release of some kind for Waltz.                  Cf.

Davis, 825 F.2d at 894 (observing that the defendant must show “‘an

                                        7
actual promise has been made to [him] rather than there being

merely an 'understanding' on his part’” (citation omitted)).

      Although Waltz did put forward some evidence that Caver

promised      him   an     early    release,       the     state      habeas     court’s

determination of the facts was not unreasonable based on the

evidence presented at the hearing.                      The court concluded that

Waltz’s testimony concerning the alleged promise was not credible

because it was not consistent with the allegations in the habeas

petition or with the testimony of other witnesses.                    The court found

more plausible testimony by various witnesses indicating that Caver

simply intended to seek parole or clemency for Waltz.                          The court

also declined to place significant weight on the testimony of

Waltz’s sisters.         Since his sisters did not have an opportunity to

convey to Waltz the terms of any promises that Caver made to them,

the   court    reasoned     that    Waltz       could    not   have   relied     on   any

representations made to his sisters.                      These findings and the

conclusion that Waltz’s plea was voluntary are consistent with the

evidence      presented     at     the   hearing         and   are    therefore       not

unreasonable determinations of fact.

      The only remaining question is whether the Louisiana Supreme

Court’s later decision to sanction Caver--based in part on the

alleged    fraudulent       promise      to      Waltz--affects        the     statutory

presumption that the state habeas court’s factual findings were

correct or affects our holding that the state court did not make an

unreasonable determination of facts.                    We hold that it does not.

                                            8
Our review under the AEDPA is strictly limited to determining

whether   the    state   habeas   court’s    decision     “was   based   on   an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.”            28 U.S.C. § 2254(d)(2)

(emphasis added).        Because the state supreme court did not issue

its   decision    sanctioning     Caver    until   over   a   year   after    the

conclusion of Waltz’s state habeas hearing, the state supreme

court’s subsequent findings in an ancillary matter are not relevant

to our review of the state habeas court’s judgment.

      It is not our job to speculate how the state supreme court

would resolve any possible conflicts between the factual findings

in Caver’s disciplinary proceedings and those of the state habeas

court.    If Waltz wishes to pursue this argument, he must do so

first in the state courts.         We, of course, express no opinion on

the merits of the argument.

                                     III

      Based on the foregoing, we conclude that the state habeas

court’s decision involved neither an unreasonable application of

federal law nor an unreasonable determination of facts in the light

of the evidence before it.         As a consequence, the district court

correctly held that Waltz is not entitled to habeas relief.

                                                                     AFFIRMED.




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