United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 21, 2006

Charles R. Fulbruge III Clerk No. No. 04-40470 Summary Calendar

BOBBY RAY FORD

Petitioner - Appellant

v.

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

Respondent - Appellee

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 6:02-CV-124 --------------------

Before KING, WIENER and DeMOSS, Circuit Judges.

PER CURIAM:*

Bobby Ray Ford, Texas inmate # 910732, appeals the denial of

his

habeas petition challenging his guilty plea

conviction for assault with a deadly weapon, enhanced by two

prior felony convictions. Ford alleged in his petition that he

received ineffective assistance of counsel which rendered his

guilty plea involuntary.

The court granted Ford’s motion for a certificate of

appealability on the issue whether there was an adjudication on

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40470 -2-

the merits of Ford’s ineffective assistance of counsel claims in

the state court and whether

(e) precluded the

district court from conducting a de novo evidentiary hearing.

Ford argues that there was no adjudication on the merits in the

state court because there was no evidentiary hearing held and the

state court did not issue any written factual findings regarding

the claim. He contends that the district court should have

conducted a de novo evidentiary hearing. The respondent argues

that the Texas Court of Criminal Appeals’s denial of Ford’s

application without a written order was an adjudication on the

merits and that Ford was not entitled to an evidentiary hearing

in the district court.

Although the Texas Court of Criminal Appeals’s denial of the

writ could signify that the court addressed and rejected the

merits of the claim, see Jackson v. Johnson,

(5th Cir. 1998), the state trial court’s inaction on the state

petition raises a question whether there was an adjudication of

the substantive claims on the merits. See Henderson v. Cockrell,

(5th Cir. 2003), cert. denied,

(2004). In denying Ford’s claim of ineffective assistance of

counsel on the merits, the district court determined that there

was an adjudication on the merits by the state court and gave

deference, pursuant to the Antiterrorism and Death Penalty Act

standard, to the state court’s determination of Ford’s claim. If

the district court erred in determining that there was an

adjudication on the merits and in giving deference to the state No. 04-40470 -3-

court’s findings, the error was harmless because Ford’s

underlying claim is without merit under a de novo standard of

review.

The record reflects that Ford was given specific

instructions by the trial court regarding the consequences of his

plea, including a statement of the sentence that he would receive

under the plea bargain, and that the trial court ascertained that

Ford understood and accepted the consequences of his plea.

Counsel’s advice to Ford was in conformity with the circumstances

that he faced in light of the new incriminating evidence

presented by the prosecution on the morning of trial. The record

does not reflect that Ford would have proceeded to trial in the

absence of ineffective assistance. Hill v. Lockhart,

(1985). Thus, Ford has failed to demonstrate that

ineffective assistance rendered his plea involuntary.

The record was sufficient for the district court to resolve

Ford’s claims without conducting an evidentiary hearing. The

transcript of Ford’s rearraignment and the hearing on his motion

for new trial provided the evidence necessary to resolve his

claims of ineffective assistance. Ford did not demonstrate that

he was entitled to an evidentiary hearing. McDonald v. Johnson,

(5th Cir. 1998).

AFFIRMED; MOTION FOR PRODUCTION OF DOCUMENTS DENIED.