                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                             No. 96-60479
                          (Summary Calendar)



JIMMY R. FAIN,

                                           Petitioner-Appellant,


                                versus

EDWARD HARGETT, ET AL.,

                                           Respondents-Appellees.


                        - - - - - - - - - -
           Appeal from the United States District Court
             for the Northern District of Mississippi
                    (USDC No. 4:95-CV-150-S-D)
                        - - - - - - - - - -
                          January 15, 1997
Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Jimmy R. Fain appeals the denial of his petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2254.    Fain was indicted for

armed robbery and capital murder and pleaded guilty to a reduced

charge of armed robbery and murder.      Fain now contends that his

guilty plea was not voluntary because it violated the Double

Jeopardy Clause and because he was not advised of the maximum



     *
        Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
sentence he could receive, or of various constitutional rights he

was waiving by pleading guilty.

     As murder and armed robbery each require proof of an element

that the other does not, Fain’s convictions do not violate the

Double Jeopardy Clause. See Blockburger v. United States, 284 U.S.

299, 304 (1932).    Fain did not plead guilty to the indictment, so

any problem presented by the indictment was eliminated.      The trial

judge’s and counsel’s alleged failure to inform Fain of a potential

defect in the indictment is irrelevant for the same reason.

     Fain argues that his guilty plea was involuntary because the

trial judge did not advise him of specified matters.             Those

matters, however, are expressly addressed in his Petition to Enter

Plea of Guilty.    The record provides an affirmative showing that

Fain’s guilty plea was intelligent and voluntary, as required by

Boykin v. Alabama, 395 U.S. 238 (1969).       Further, the state court

found, on post-conviction review, that Fain was advised of his

rights.

     Fain also argues that he was denied effective assistance of

counsel based on the foregoing issues.           As they lack merit,

however, he cannot show deficient performance.

     The state court's factual findings are not unreasonable in

light of the evidence presented and its decision as to the guilty

plea and counsel's performance are not an unreasonable application

of federal law.    See 28 U.S.C. § 2254(d).    As noted, Fain's double

jeopardy claim lacks merit.     The district court did not err in

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denying Fain’s petition for writ of habeas corpus, and dismissing

the cause with prejudice.

AFFIRMED.




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