IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-30018 Summary Calendar

WARREN HENRY,

Petitioner-Appellant,

versus

JOHN P. WHITLEY, Warden; RICHARD P. IEYOUB, Attorney General, State of Louisiana,

Respondents-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 96-CV-1678 - - - - - - - - - - October 13, 1997 Before KING, HIGGINBOTHAM and DAVIS, Circuit Judges.

PER CURIAM:*

Warren Henry, Louisiana prisoner # 77111, appeals the

dismissal of his

habeas application. Henry

argues that the sentencing judge’s arbitrary and capricious

refusal to even consider the sentencing guidelines or the

sentencing alternatives available under the statute amounts to a

deprivation of liberty in violation of the Due Process Clause.

It is not this court’s function in a habeas proceeding to review

a state’s interpretation of its own law. Weeks v. Scott, 55 F.3d

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 97-30018 -2-

1059, 1063 (5th Cir. 1995). However, to the extent that such

review is required by due process implications, the sentencing

judge did consider whether a lesser sentence would deprecate the

seriousness of the crime, and he also considered Henry’s history

of criminal conduct, which in the judge’s mind weighed against a

probated sentence. The judge also stated that there were no

extraordinary circumstances, which would take into account

mitigating factors. The state court’s finding that the judge

complied with the state statute, and the state court’s conclusion

that the sentencing judge was aware of, and properly exercised,

his discretion, did not involve an unreasonable application of

clearly established federal law.

(d)(1); see

Carter v. Johnson,

(5th Cir. 1997), petition

for cert. filed, No. 97-5538 (Aug. 8, 1997).

Henry argues that the resentencing hearing should have been

held before a different judge than the one who imposed the

original sentence. He contends that the judge used the

resentencing hearing as a forum for justifying his earlier ruling

rather than giving adequate consideration to the sentencing

guidelines. A due process violation does not automatically

result from resentencing by the same judge. “Absent proof that

the judge would refuse to exercise sentencing alternatives due to

actual bias or partiality, no federal constitutional right is

threatened.” Every v. Blackburn,

(5th Cir.

1986). There is no proof that the judge was biased or impartial. No. 97-30018 -3-

Henry has not shown that the state court’s decision involved an

unreasonable application of clearly established federal law.

(d)(1); Carter,

.

AFFIRMED.