IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-11250
HENRY REBEL CORNETT
Petitioner-Appellant,
versus
GARY L JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION
Respondent-Appellee.
Appeals from the United States District Court
For the Northern District of Texas
(4:97-CV-426-A)
August 12, 1998
Before REYNALDO G. GARZA, HIGGINBOTHAM, and EMILIO M. GARZA,
Circuit Judges.
PER CURIAM:*
Cornett petitions this court for a Certificate of
Appealability from the district court’s denial of his application
for federal habeas corpus pursuant to 28 U.S.C. § 2254. We
conclude that Cornett has not made a substantial showing of the
denial of a constitutional right, see 28 U.S.C. § 2253(c)(2), and
accordingly refuse to grant him a COA.
*
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this opinion should not be published and is not precedent except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.
Cornett’s challenge to the sufficiency of the evidence
underlying his guilty plea does not rise to the level of a federal
constitutional issue. See Smith v. McCotter, 786 F.2d 697, 702
(5th Cir. 1986). Cornett, for the first time on appeal, asserts
arguments regarding the revocation of his probation. At best, we
review such issues for plain error. See United States v. McPhail,
112 F.3d 197, 199 (5th Cir. 1997). We find no plain error under
these fact, especially because the decision to revoke deferred
adjudication probation is not appealable under Texas law. See
Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992).
Finally, Cornett contends that his counsel was ineffective for
failing to perfect an appeal from the judgment following the
revocation of his probation. The state habeas court found that
Cornett had pursuant to an agreement with the prosecutor waived his
right to appeal from that judgment and sentence, a fact finding we
presume to be correct. These findings were adopted by the Texas
Court of Criminal Appeals. See 28 U.S.C. § 2254(e)(1); Carter v.
Johnson, 110 F.3d 1098, 1107, n.11 (5th Cir. 1997); Flores v.
Johnson, 957 F. Supp. 893, 915 (W.D. Tex. 1997). Moreover, our
independent review of the affidavit of Cornett’s attorney convinces
us that Cornett understood that he was relinquishing his right to
challenge the sentence as well as the decision to revoke probation.
Cornett acceded to this agreement after his attorney instructed him
that an appeal from the outcome of the revocation proceeding would
not likely be effective anyway.
2
AFFIRMED.
3