United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 9, 2005
Charles R. Fulbruge III
Clerk
No. 04-40265
Summary Calendar
BYRON LYNN LUCAS,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:02-CV-259-HC-ESH
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Byron Lynn Lucas, Texas inmate #898217, is currently serving
consecutive sentences of 45 years of imprisonment for a conviction
by a jury for burglary of a habitation (Cause No. 74203), 30 years
of imprisonment for a conviction on his guilty plea to a charge of
burglary of a habitation (Cause No. 78994), 20 years of
imprisonment for a conviction on his guilty plea to a charge of
burglary of a building (Cause No. 78995), 15 years of imprisonment
for a conviction on his guilty plea to a charge of attempted
*
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this opinion should not be published and is not precedent except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.
No. 04-40265
-2-
burglary of a habitation (Cause No. 78996), and 40 years of
imprisonment for a conviction on his guilty plea to a charge of
burglary of a habitation (Cause No. 78997). Lucas was granted a
certificate of appealability (“COA”) on the sole issue: whether in
his convictions in Cause Nos. 78994, 78996, and 78997, the lack of
an admonishment regarding the 25-year minimum sentence, which is
applicable in the case of a defendant with two previous felony
convictions, violated Lucas’s constitutional rights and resulted in
the entry of involuntary and unknowing pleas.
Lucas contends that at his plea hearings, the trial court
informed him that the minimum applicable sentences in Cause Nos.
78994 and 78997 were five years of imprisonment and that in Cause
No. 78996, the minimum applicable sentence was two years of
imprisonment. Lucas asserts that, because he admitted to previous
convictions, he was subject to the 25-year minimum sentence
provided in TEX. PENAL CODE § 12.42(d) (West 1997, 1998). Lucas
contends that the trial court’s erroneous admonishments prevented
him from understanding the consequences of his pleas, led him to
believe that he remained eligible for probation, and caused him to
enter involuntary and unknowing guilty pleas.
The record shows that Lucas was sentenced as a repeat
felony offender pursuant to the provisions of TEX. PENAL CODE
§ 12.42(a)(3), (b) (West 1997, 1998) and not as an habitual
offender under TEX. PENAL CODE § 12.42(d) (West 1997, 1998).
The sentencing ranges for his convictions in Cause Nos. 78994 and
No. 04-40265
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78997 for burglary of a habitation were increased pursuant to TEX.
PENAL CODE § 12.42(b) (West 1997, 1998) from the range that is
applicable to second-degree felonies, i.e., two to twenty years of
imprisonment, to the range that applies to first-degree felonies,
i.e., five to 99 years of imprisonment or life. TEX. PENAL CODE §§
12.32, 12.33 (Vernon 1997). The sentencing range for Lucas’s
conviction for attempted burglary of a habitation in Cause No.
78996 was increased pursuant to TEX. PENAL CODE § 12.42(a)(3) (West
1997, 1998) from the range that is applicable to a third-degree
felony, i.e., two to ten years of imprisonment, to the range that
applies to a second-degree felony, i.e., two to twenty years of
imprisonment. See TEX. PENAL CODE §§ 12.33, 12.34, 12.42(a)(3)
(Vernon 1997).
Lucas concedes that the trial court informed him of the five-
year minimum sentences in Cause Nos. 78994 and 78997 and of the
two-year minimum sentence in Cause No. 78996. The record supports
the factual determination that Lucas was sentenced as a repeat
felony offender. Determinations of factual issues made by a State
court “shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1).
Lucas has not rebutted this presumption of correctness. Id.
Accordingly, the judgment is AFFIRMED.