UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 95-10484
Summary Calendar
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CHARLIE LEWIS McGHEE,
Petitioner-Appellant,
versus
WAYNE SCOTT, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:94-CV-1037-X)
_________________________________________________________________
August 29, 1996
Before JOLLY, JONES, and STEWART, Circuit Judges.
PER CURIAM:*
Appellant McGhee, sentenced to life imprisonment in the
Texas Department of Corrections after a finding that he violated his
deferred-adjudication probation, raises five issues on appeal. Each
of these issues was carefully discussed by the magistrate judge, and
we have little to add to his opinion.
*
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should not be published and is not precedent except under the limited circumstances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.
In an abundance of caution, however, this court granted CPC
and asked the parties particularly to brief whether McGhee’s due
process rights were violated by the trial court’s alleged imposition
of a predetermined sentence, and whether due process required the
court to hold a separate sentencing hearing after revoking McGhee’s
probation. In regard to the first of these issues, we note the state
court’s statement, when it ruled on McGhee’s habeas petition, that she
sentenced him to life imprisonment because of the offense he had
committed and the additional two burglaries that he committed within
one week of receiving a deferred adjudication. Neither in the
district court nor in this court has McGhee offered evidence or
persuasive argument why the federal courts should not defer to this
finding of historical fact by the state habeas court. The state judge
said she did not impose a “predetermined sentence” on McGhee following
his breach of probation. Like the magistrate judge, we conclude that
finding is supported by the record of the state court proceedings.
As for McGhee’s second complaint that he was entitled to a
separate sentencing hearing, additional briefing shows that argument
to be meritless. To the extent it relies on an alleged violation of
Texas law, that is not cognizable in a federal habeas proceeding. On
the other hand, McGhee cites no federal law creating an entitlement
to a separate hearing in these circumstances. For this court to craft
one in a collateral proceeding would violate the Teague rule of non-
retroactivity.
2
For these reasons, and those assigned by the magistrate
judge, this court affirms the denial of habeas relief.
AFFIRMED.
3