Revised September 16, 2002

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _________________________________

No. 01-30964 _________________________________

GLEN HARRIS,

Petitioner-Appellant,

v.

CHARLES C FOTI, JR, Orleans Parish Criminal Sheriff,

Respondent-Appellee.

---------------------------------- Appeal from the United States District Court for the Eastern District of Louisiana 99-CV-1043 ---------------------------------

September 12, 2002

Before SMITH and BENAVIDES, Circuit Judges, and ENGELHARDT,* District Judge.

PER CURIAM:**

In this habeas case, petitioner contends that his counsel was ineffective by not moving to

withdraw his guilty plea after it was determined that petitioner had concealed his identity and criminal

history from the court. For the following reasons, we agree with the district court that the habeas

* District Judge of the Eastern District of Louisiana, sitting by designation. ** Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. petition should be denied.

I.

Petitioner Glen Harris (“Harris”), a Louisiana state prisoner, was arrested for simple burglary.

Presumably aware that his previous convictions would increase this sentence, Harris identified himself

by using his brother's name, Arzia Harris. Still masquerading under his false identity, he entered a

“best interest” plea, which is considered to be a guilty plea under North Carolina v. Alford,

(1970). After petitioner waived all sentencing delays and requested immediate sentencing, the trial

court imposed a three-year suspended prison sentence and three years of probation.

Petitioner’s fraud on the court was discovered, however, when he reported to his supervising

probation officer, Robert Rogers. Even though petitioner was wearing dark glasses in an apparent

effort to conceal his identity, Officer Rogers recognized him as Glen Harris from a previous case.

Harris was then arrested as a parole violator and taken into custody. Now aware of his true identity,

the state filed a multiple offender bill against Harris, which had the effect of increasing the applicable

sentence for simple burglary. After a hearing at which it was established that Harris had lied to the

court in an effort to hide his prior criminal history, the court found him to be a triple offender and

sentenced him to twenty-four years in prison.

After a series of post-conviction proceedings, Harris filed the instant § 2254 petition, arguing

in part that his counsel performed ineffectively by failing to move to withdraw the plea, which he

alleged was constitutionally infirm because he was not told that he could receive a sentence in excess

of twelve years. The district court denied his petition, stating that there was no plea agreement

2 between Harris and the state. As such, it held that Harris' counsel was not ineffective in failing to

move for the withdrawal of the original plea. We granted a certificate of appealability (“COA”) on

this issue.

II.

Under section 2254(d), “habeas relief is not available to a state prisoner 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.” Foster v. Johnson,

(5th Cir.

2002) (citing

(d)). When conduct ing the “unreasonable application” inquiry, a

federal court “should ask whether the state court's application of clearly established federal law was

objectively unreasonable.” Williams v. Taylor,

(2000). Following the Supreme

Court, we have emphasized that reasonable is not synonymous with correct: “an application of

clearly established Supreme Court precedent must be incorrect and unreasonable to warrant federal

habeas relief.” Foster,

.

Harris' ineffective assistance of counsel claim is governed by the clearly established standard

set forth in Strickland v. Washington, 466 U.S 668 (1984). Under Strickland’s two-prong analysis,

we first determine whether counsel's performance was deficient and, if so, then ask if that deficiency

prejudiced the defense. Id. at 687. To show prejudice in the context of a guilty plea, Harris must

demonstrate that there is a reasonable probability that, but for counsel's errors, he would not have

pled guilty and would instead have insisted on going to trial. Hill v. Lockhart,

, 58

3 (1985); Daniel v. Cockrell,

(5th Cir. 2002).

Although Harris claims that he pled guilty pursuant to an agreement with the state, the record

does not support this characterization. Indeed, Harris himself ultimately concedes that there was no

such agreement. In fact, the state objected to his best interest plea and there is no evidence in the

record of any promises made by the state regarding the length of his sentence. Cf. State v. Rios, 670

S.2d 708, 713 (La. App. 1996) (allowing defendant who had misrepresented identity and criminal

history to withdraw original guilty plea prior to sentencing under multiple offender bill on the grounds

that the original plea was induced by state's promise of light sentence). We therefore reject any

implication that Harris was induced by the state’s promise of a sentence under the first-time offender

provision of the statute.

Moreover, we note that the sentencing court said nothing about the applicability of the

multiple offender provision. Rather, the court accurately informed Harris that the penalty for simple

burglary carried a maximum of twelve years in prison and a $2000 fine. See La. Rev. Stat. Ann. §

14.62. Harris contends that any ambiguities in the sentencing court’s admonishment should be

construed in his favor. We disagree. The sole reason that the multiple offender provision was not

taken into account by the sentencing court is that Harris deliberately concealed his identity and

criminal history. Furthermore, it is clear that Harris anticipated the potential enhancement for his

multiple offenses, as his fraud on the court was specifically designed to avoid being sentenced as a

multiple offender. As he was fully aware of the consequences of his guilty plea, there was no

violation of his rights under Boykin v. Alabama,

(1969).

As Harris’ plea to the predicate offense of simple burglary was not tainted, there was no basis

for his counsel to move for its withdrawal. Thus, his counsel’s failure to move for withdrawal of the

4 guilty plea cannot amount to ineffective assistance of counsel under Strickland and Hill, so the state

court’s denial of his Strickland claim was not unreasonable. Accordingly, the judgment denying

habeas relief is AFFIRMED.

5