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.
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Appeal from the United States District Court
for the Northern District of Mississippi
(USDC No. 4:95-CV-150-S-D)
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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that this opinion should not be published and is not precedent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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