IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-30189
Summary Calendar
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THOMAS C. FERGESON,
Petitioner-Appellant,
versus
BURL CAIN, Acting Warden,
Louisiana State Penitentiary,
Respondent-Appellee
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 94-CV-1246
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November 30, 1995
Before: WIENER, PARKER and DENNIS, Circuit Judges.
PER CURIAM:*
Thomas C. Fergeson appeals the dismissal without prejudice of
his federal petition for a writ of habeas corpus for failure to
exhaust state remedies. Because we find that the district court's
evaluation of the issues presented to the state and federal courts
too narrowly interprets the substance of Fergeson's pro se
petitions and that Louisiana's procedural bars render collateral
relief unavailable on any claim not yet presented to the state
*
Local Rule 47.5 provides: "The publication of opinions that have no precedential
value and merely decide particular cases on the basis of well-settled principles of law
imposes needless expense on the public and burdens on the legal profession." Pursuant
to that Rule, the court has determined that this opinion should not be published.
courts, we remand this matter to the district court for further
proceedings.
Among the claims Fergeson raised in the state courts was that
his guilty plea was not knowing and intelligent because he had
stated during the plea colloquy that he was unable to confirm the
prosecution's recitation of facts inasmuch as he had no memory of
the events. Based on its review of the record, the trial court
denied relief. The state appellate and supreme courts subsequently
denied Fergeson's applications for review. In his petition for
writ of habeas corpus in the federal courts, Fergeson again claims
that his plea was not knowing and intelligent, this time arguing
primarily that he was never informed of the elements of the crimes
charged or the lesser charges to which he pleaded guilty. He
argues that the deficiency of the plea is evident from the record
in that the trial court failed to determine what type of plea was
being entered (i.e. whether or not the plea was an Alford plea),
the indictment was never read for the record, and the elements were
never explained in the record. Fergeson also claims that there was
an element of coercion in his guilty plea, as he was informed that
if found guilty of aggravated rape, he faced a life sentence. The
district court determined that Fergeson's petition presented for
the first time the claims that the guilty plea was faulty because
Fergeson was not informed of the elements of the charged crimes and
that he was coerced into pleading guilty because he faced a life
sentence if convicted of aggravated rape. Consequently, the
district court dismissed the petition without prejudice in order
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for Fergeson to exhaust his state court remedies. See Rose v.
Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379
(1982); Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993).
To have exhausted state remedies, a habeas petitioner "must
have fairly presented the substance of his claim to the state
courts." Sones v. Hargett, 61 F.3d 410, 414-15 (5th Cir.
1995)(quoting Vela v. Estelle, 708 F.2d 954, 958 (5th Cir. 1983),
cert denied, 464 U.S. 1053, 104 S.Ct. 736, 79 L.Ed.2d 195 (1984)).
"Normally, the exhaustion requirement is not satisfied if a
petitioner presents new legal theories or entirely new factual
claims in his petition to the federal court." Id. at 415 (quoting
Vela, 708 F.2d at 958).
In Vela v. Estelle, 708 F.2d 954 (5th Cir. 1983), cert.
denied, 464 U.S. 1053, 104 S.Ct. 8736, 79 L.Ed.2d 195 (1984), we
rejected the state's argument that the petitioner had failed to
exhaust his state remedies. There, the petitioner had claimed in
both his state and federal petitions that counsel had been
ineffective in the sentencing phase of his trial, but had raised
additional factual grounds for that claim in his supplemental
petition before this court. Acknowledging that we normally refuse
to review on habeas entirely new factual claims never presented to
the state habeas court, we found that petitioner's claims had been
exhausted in the state courts because the issue of counsel's
ineffectiveness was based on the attorney's entire performance and,
although petitioner now noted trial errors not specifically
mentioned in his pro se state habeas petition, all the errors
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supported the same constitutional claim and were readily
discernible from the review of the entire record the state court
was obligated to carry out. Id. at 958-60. We observed:
Characterizing these allegations as "unexhausted claims"
would require us to find that the state habeas court
failed in its duty to evaluate counsel's performance on
the basis of the record as a whole. This we are
unwilling to do, given that court's citation in its
findings of instances drawn from the record in which
counsel performed properly. Concluding as we do that the
alleged "new facts" are not new at all, we cannot see how
our consideration of these same facts in anyway undercuts
the state court, or creates any friction between the
state and federal judicial systems. Accordingly, we hold
that Vela has exhausted all available state remedies as
required by § 2254(b),(c) . . . .
Id. at 960.
In this matter, the factual underpinnings of Fergeson's claim
that his plea was not knowing and intelligent are somewhat
different in the petitions before the state and federal courts, but
the underlying constitutional violation remains the same, and the
evidence necessary to determine the merits of his claim is
contained in the record that was before the state courts. Indeed,
the state district court observed that the record did not support
petitioner's claim that the plea was "faulty," and the appellate
court, in denying relief, relied on the trial court's review of the
record. We find that the substance of Fergeson's claim that his
guilty plea was not intelligently made was fairly presented to the
state courts and that the district court consequently erred in
finding that Fergeson had not exhausted the claim in the state
courts.
Fergeson briefly argued in his federal petition that there was
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"an element of coercion" to his plea because he was repeatedly
informed that he faced a life sentence for the charged crime.
Assuming that this was raised as a distinct issue, the claim that
the plea was involuntary is a new claim that the state courts have
not had the chance to address. Dismissal of the petition in order
to permit Fergeson to exhaust his state remedies is not warranted,
however, because the state courts would refuse to hear his claims.
See La.C.Cr.P. art. 930.8 (West Supp. 1995)(establishing three-year
statute of limitations for the filing of petitions for post-
conviction relief); Glover v. State, So.2d. (La. Sept. 5,
1995)(No. 93-2330), slip op. at 4-20 (upholding constitutionality
of La.C.Cr.P. art. 930.8). Because post-conviction relief in the
state courts is no longer available to Fergeson, he has technically
exhausted his state remedies. See Sones v. Hargett, 61 F.3d 410,
416 (5th Cir. 1995); Deters v. Collins, 985 F.2d 789, 795 n. 16
(5th Cir. 1993). Whether Fergeson's failure to raise this claim
procedurally bars it from review in federal court is an issue to be
addressed on remand.
Accordingly, the district court's judgment is VACATED and the
case is REMANDED to that court for further proceedings.
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