IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-40201
Summary Calendar
CHARLES EDWARD BONNER,
Plaintiff-Appellant,
versus
WAYNE SCOTT, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
(G-93-CV-107)
(September 25, 1995)
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Charles Bonner appeals from the district court's denial of
his application for a writ of habeas corpus. We affirm.
I. Immunity
Bonner claims the right to enforce an agreement signed by
parole officer Eaves, in which Eaves promised to dismiss certain
charges in return for Bonner's promise to submit to a 90-day term
*
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that this opinion should not be published.
for a technical parole violation. Despite this agreement, Bonner
went to trial in both Chambers and Brazoria counties and was
convicted in both. Nothing in the record indicates that the
trier of fact in either case ever became aware of the agreement,
any statements that Bonner made in connection with it, or any
evidence derived from it. After an unsuccessful application for
state habeas corpus, Bonner sought federal habeas relief of both
convictions in a single petition. Upon the state's motion,
Bonner limited his application to a request for relief from the
Brazoria County conviction for robbery. Upon referral, the
magistrate judge held that the Chambers County state habeas
court's findings were entitled to a presumption of correctness
pursuant to 28 U.S.C. § 2254(d), and therefore adopted that
court's finding that Eaves had no authority to enter into a
binding transactional immunity agreement. The district judge
adopted the magistrate's recommendation of dismissal without
comment.
In essence, Bonner argues that he should be able to enforce
his agreement with Eaves. In doing so, he contests the ability
of the district court to apply the § 2254(d) presumption of
correctness to findings made in the Chambers County state habeas
proceeding because his current federal habeas petition deals only
with the Brazoria County conviction. In particular, Bonner
claims that he is entitled to relitigate the issue of whether
Eaves had actual or apparent authority to enter into a binding
immunity agreement.
2
We decline to reach this issue, choosing instead to affirm
on grounds other than those relied upon in the court below. We
hold that criminal defendants are not entitled to enforce
agreements of this nature even if made with a state attorney-
general.
Bonner states no violation of a federal constitutional
right. The prosecution did not introduce into evidence Bonner's
agreement or any evidence derived from it or any statements or
admissions from Bonner. Cf. Kastigar v. United States, 406 U.S.
441 (1972); United States v. Robertson, 582 F.2d 1356 (5th Cir.
1978). The prosecution did not induce Bonner to aid in
investigating others, cf. United States v. Weiss, 599 F.2d 730,
734 (5th Cir. 1979), nor did it lure Bonner into a guilty plea,
cf. Santobello v. New York, 404 U.S. 257, 262 (1971). See
generally Weiss, 599 F.2d at 736-38. No federal constitutional
provision protects Bonner's expectation interest in the Eaves
agreement. Under such circumstances, no federal constitutional
claim is at issue.
II. Other Issues
Bonner's other claims lack merit. First, Bonner argues that
the state waived its right to make responsive pleadings in the
Brazoria County habeas proceeding. Infirmities in state habeas
corpus proceedings do not, however, constitute grounds for
federal relief. Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th
Cir. 1992), cert. denied, 113 S. Ct. 1958 (1993). Second, to the
extent that Bonner properly raised arguments regarding
3
prosecutorial misconduct and double jeopardy in his opening
brief, we affirm the court below. If any prosecutorial
misconduct occurred, Bonner has not shown that it was "so
pronounced and persistent that it casts serious doubts upon the
correctness of the jur[ies'] verdict[s]." United States v.
Rodriguez, 43 F.3d 117, 124 (5th Cir.) (alterations added), cert.
denied, 115 S. Ct. 2260 (1995). No double jeopardy violation
occurred because the first jury panel in Brazoria County had not
been sworn when the court declared a mistrial. Crist v. Bretz,
437 U.S. 28 (1978). Finally, Bonner has raised other issues for
the first time in his reply brief. We decline to consider
arguments made in this manner. McGruder v. Necaise, 733 F.2d
1146, 1148 (5th Cir. 1984).
For the reasons stated above, we deny both of Bonner's
motions.
AFFIRMED.
4