UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-31025
Summary Calendar
RICKY D. FERRINGTON,
Plaintiff-Appellant,
VERSUS
KELLY WARD, Warden,
Defendant Appellee.
Appeal from the United States District Court
For the Western District of Louisiana
(CA-95-0740)
June 26, 1996
Before WIENER, EMILIO M. GARZA and PARKER, Circuit Judges.
PER CURIAM:*
Ricky D. Ferrington pleaded guilty to simple burglary in a
Louisiana state court and was sentenced to 12 years’ imprisonment.
A number of other charges were dismissed and no habitual offender
*
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this opinion should not be published and is not precedent except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.
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bill was filed in accordance with a plea bargain agreement. After
state courts affirmed his direct appeal and denied his application
for post-conviction relief, Ferrington filed a petition for federal
habeas corpus relief. The district court, adopting the magistrate
judge’s report and recommendations, dismissed his petition. We
affirm.
EXHAUSTION OF STATE REMEDIES
Respondent, Kelly Ward, Warden (“the State”) alleges that
Ferrington’s writ application should be dismissed for failure to
exhaust state remedies because he did not pursue all state court
appellate remedies on his direct appeal or his first application
for post-conviction relief.
Generally, the exhaustion requirement is satisfied if a
claim has “been presented once to the state’s highest
court.” Nevertheless, the habeas corpus applicant must
provide the high state court with “a fair opportunity” to
pass upon the claim. Generally, that means that the
habeas corpus applicant must “present his claims before
the [state] courts in a procedurally proper manner
according to the rules of the state courts.”
Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988)(footnotes
omitted; brackets in original). The state does not specify any
particular issues that it contends were not properly exhausted.
The record reveals that Ferrington presented all but two of his
habeas claims in a procedural posture in which the state courts
could consider them, thus exhausting the state law remedies
regarding the claims he presented. Two issues presented in this
appeal -- that his counsel threatened him with a 30-year prison
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term if he did not plead guilty and that counsel was ineffective
for meeting with him only briefly before the plea hearing -- have
not been exhausted. However, after a careful record review, we
have determined that these two contentions are without merit. We
therefore decline to modify the judgment to allow Ferrington to
exhaust these claims, as to do so would be a waste of judicial
resources. See Colvin v. Estelle, 506 F.2d 747, 748 (5th Cir.
1975).
VOLUNTARINESS OF GUILTY PLEA
Ferrington contends that his guilty plea was involuntary
because he was not informed of all of the elements of simple
burglary and because there was no factual basis supporting his
plea. In Louisiana, simple burglary is defined as “the
unauthorized entering of any dwelling . . . with the intent to
commit a felony or any theft therein[.]” LA. REV. STAT. ANN. § 14:62
(West 1986). Specifically, Ferrington claims he pleaded guilty to
simple burglary without knowing that intent to commit a felony or
theft was one of the elements of the crime.
A guilty plea is not voluntary unless the defendant has real
notice of the nature of the charge against him. Theriot v.
Whitley, 18 F.3d 311, 314 (5th Cir. 1994). If the trial record
shows that the defendant understood the elements of the charge
against him, then the court’s failure to inform him of those
elements does not render the guilty plea infirm. Id. Ferrington
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points out, correctly, that he was not advised orally on the record
of the intent required for simple burglary by Louisiana law.
However, Ferrington stated at the plea colloquy that he understood
“everything transpiring here today” and his attorney stated that he
was satisfied that Ferrington entered the plea freely and
voluntarily and with an understanding of the charge as well as the
consequences of the plea. The Bill of Information, filed five
months prior to the plea hearing, clearly included the required
element of intent. Whether a plea is voluntary is determined by
considering all of the relevant circumstances surrounding it.
Brown v. Butler, 811 F.2d 938, 940 (5th Cir. 1987). Based on the
written notice in the Bill of Information, Ferrington’s attorney’s
statements to the court and Ferrington’s own statement to the
court, we conclude that Ferrington received adequate notice of the
intent requirement of his offense prior to pleading guilty.
State courts are under no constitutional duty to establish a
factual basis for a guilty plea prior to its acceptance unless the
judge has specific notice that such an inquiry is needed. Smith v.
McCotter, 786 F.2d 697, 702 (5th Cir. 1986). Ferrington did not
place the state trial court on notice until the sentencing hearing,
which was held well after the court had accepted his guilty plea,
that an inquiry into the factual basis was necessary.
We find that Ferrington has not shown that his plea was not
voluntarily and knowingly made.
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CONCLUSION
Ferrington’s other claims do not merit discussion.
Ferrington’s motions for appointment of counsel on appeal and for
release pending appeal are DENIED.
The district court’s dismissal of Ferrington’s habeas corpus
petition is AFFIRMED.
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