IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________________

No. 99-30140 _____________________

JAMES R. SMITH,

Petitioner-Appellant,

versus

WARDEN ALLEN CORRECTIONAL CENTER,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the Western District of Louisiana (97-CV-2393) _________________________________________________________________

March 6, 2000

Before JOLLY and DeMOSS, Circuit Judges, and DOWD,* District Judge.

PER CURIAM:**

James Smith was initially charged with second degree murder

and later pled guilty to manslaughter. The court sentenced him to

seventeen years in prison. The petitioner filed for habeas corpus

relief, arguing that he was never informed of the elements of

manslaughter and did not understand what those elements are, making

his plea constitutionally involuntary. We deny habeas corpus

relief.

* District Judge of the Northern District of Ohio, sitting by designation.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

Smith was initially charged with second degree murder in the

fall of 1984. On the first day of trial, several witnesses

testified that Smith had admitted killing the victim. The first of

these testified that Smith had claimed self defense. The policemen

testified that they had found the victim’s body with the throat cut

and the genitals cut off. Photographs of the scene were shown to

the jury.

The following day, Smith agreed to plead guilty to the reduced

charge of manslaughter. The prosecutors accepted his plea, and he

was sentenced to 17 years of hard labor. On direct appeal, Smith

raised a single assignment of error, that his sentence was

constitutionally excessive. The Third Circuit Court of Appeal

rejected this argument and affirmed his conviction and sentence.

On December 21, 1989, Smith filed an application for post-

conviction relief, arguing that his guilty plea was not entered

knowingly and voluntarily. The trial court denied relief on

January 2, 1990, without an evidentiary hearing. Smith then sought

review in the Court of Criminal Appeal, which denied his writ,

stating only that “[t]here is no error in the trial court’s

ruling.” Smith next filed a writ application with the Louisiana

Supreme Court, which was denied in 1996.

On October 2, 1997, Smith filed a § 2254 petition, arguing

that his guilty plea was involuntary. The magistrate judge

recommended denial and dismissal with prejudice. Smith filed

2 objections, but the district court adopted the magistrate judge’s

report and recommendation, denying the petition and dismissing with

prejudice. Smith filed a notice of appeal and the district court

granted a COA on the issue of whether Smith’s guilty plea was

entered knowingly and voluntarily.

II

A

We must first determine the proper standard of review to apply

in this case. A prerequisite of the standard of review specified

by

(d) for habeas corpus appeals is that the claim

was adjudicated “on the merits” in state court. We determine

whether there was such an adjudication by considering:

(1) what the state courts have done in similar cases;

(2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and

(3) whether the state courts’ opinion suggests reliance upon procedural grounds rather than a determination on the merits.

Mercadel v. Cain,

(5th Cir. 1999).

Weighing these three factors leads us to conclude that the

Court of Appeal did adjudicate this claim on the merits as opposed

to procedurally. A review of previous Louisiana cases does not

reveal any where claims such as Smith’s were dismissed based on

procedural grounds. By itself, this proves nothing, except that

this factor does not favor either alternative. With respect to the

second factor, there is no suggestion that the court was made aware

3 of any procedural reasons for dismissing Smith’s motion because the

state did not file any motion whatsoever in the Court of Appeal.

See Singleton v. Johnson,

(1999)(Where the state

did not raise procedural grounds for denying relief, it suggested

that the state court was not aware of any procedural grounds for

dismissal.). Third, the state court opinion, while ambiguous, does

suggest that the state court adjudicated the claim on the merits.

The Court of Appeal would probably have used language different

from “[t]here is no error in the trial court’s ruling” had the

claim been dismissed procedurally. Mentioning an absence of error

indicates that the court actually looked for error. Based on these

three factors, we conclude that there was an adjudication on the

merits.

For this reason, § 2254(d) establishes the standard of review

in this case:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim– (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Whether Smith had adequate notice of the elements of the

offense of manslaughter is a question of fact. We therefore review

4 to determine whether it would be unreasonable to conclude that

Smith had such notice.

B

The Supreme Court has stated that a guilty plea cannot be

voluntary unless the defendant has “real notice of the true nature

of the charge against him,” which includes notice of the elements

of the offense. Henderson v. Morgan,

,

,

(1976). But that does not mean that

there must be an express discussion of the elements on the record:

Normally the record contains either an explanation of the charge by the trial judge, or at least a representation by defense counsel that the nature of the offense has been explained to the accused. Moreover, even without such an express representation, it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.

(emphasis added).

Cases within our own circuit provide some additional guidance.

In Burden v. State of Alabama,

(5th Cir.

1978), we held that there was insufficient notice of the elements

of the crime. We based this conclusion on the lack of a discussion

of the elements of the offense either in the defendant’s “Ireland

Form”1 or the judge’s statements to the defendant, and in the

absence of any statement by defense counsel on record that he had

discussed the elements of the crime with the defendant. In Hobbs

1 This is a form informing the defendant of the charges against him and of his rights.

5 v. Blackburn,

(5th Cir. 1985), on the other

hand, we upheld a guilty plea without any discussion of the

elements on the record because review of the colloquy with the

judge revealed that the defendant understood the general meaning of

the charge and the consequences of his guilty plea. Moreover, in

Bonvillain v. Blackburn,

(5th Cir. 1986), we

again upheld a guilty plea without any enumeration of the elements

of the offense. Instead, the defendant’s counsel had signed a form

stating that he had “informed the defendant of his or her rights,

particularly the nature of the crime to which he or she is pleading

guilty,” which we found sufficient.

In the case before us, defense counsel did not sign anything

similar to the one in Bonvillain. The judge never expressly

discussed the elements of manslaughter. Instead, our sole

indication of what the defendant did know comes from the colloquy

with the judge:

By the Court: Mr. Smith, you are here with your attorneys, Ms. Fournet and Mr. Bracato. Is that correct, sir?

By Mr. Smith: Yes sir, it is.

By the Court: It is the Court’s understanding that you have fully discussed this case with both of your attorneys. Is that correct, sir?

By Mr. Smith: Yes sir, I have.

By the Court: Are you satisfied with the advice they have given you?

By Mr. Smith: Yes sir, very satisfied.

6 By the Court: All right. I want to be sure that you understand the . . . . what you are now charged with, sir. According to the amended Bill of Information or Indictment you are charged with the offense of manslaughter that in or about the 25th day of December, 1982, you committed manslaughter of one Frank Knapp. Do you understand what you are charged with, sir?

By Mr. Smith: Yes sir.

By the Court: Do you understand, sir, that if the Court accepts your guilty plea you could be sentenced by the Court to serve a term of imprisonment for a period not to exceed twenty-one years at the Department of Corrections?

By Mr. Smith: Yes sir, I understand that.

By the Court: I want to be sure that you understand the rights you are giving up if I accept your guilty plea.

...

By the Court: Mr. Smith, the Court is satisfied that with the advice of your attorneys, who are very, very competent, the most competent firm in the City of Alexandria representing you, that you fully understand the nature of the plea that you are making, you fully understand the consequences of the guilty plea, and that the plea is knowingly, intelligently and voluntarily entered, and that there is a factual basis for the plea. I am going to now advise that I will accept the plea.

From this colloquy, it appears that Smith had excellent legal

counsel. He had two lawyers from what the trial judge considered

to be an excellent firm. Smith also had the opportunity to discuss

his case with them. It would seem reasonable to assume that his

7 lawyers discussed his offense in detail with him before he agreed

to plead guilty.

We do will not venture to guess what the result would be if

the standard of review and burden of proof in this case were

different. But Smith has not carried his burden of proof, nor has

he overcome the standard of review. He has not established that it

would be unreasonable to presume that his lawyers explained the

nature of the offense in sufficient detail to give him notice of

what he was being asked to admit. We therefore conclude that

habeas corpus relief would be inappropriate.

III

For the reasons stated herein, Smith’s motion for habeas

corpus relief is

D E N I E D.

8