*

 Local Rule 47.5 provides: "The publication of opinions that have no precedential

value and merely decide particular cases on the basis of well-settled principles of law

imposes needless expense on the public and burdens on the legal profession." Pursuant

to that Rule, the court has determined that this opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________

No. 95-30189

Summary Calendar

______________________

THOMAS C. FERGESON,

Petitioner-Appellant,

versus

BURL CAIN, Acting Warden,

Louisiana State Penitentiary,

Respondent-Appellee

- - - - - - - - - - - - - - - - - -

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 94-CV-1246

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November 30, 1995

Before: WIENER, PARKER and DENNIS, Circuit Judges.

PER CURIAM:*

Thomas C. Fergeson appeals the dismissal without prejudice of

his federal petition for a writ of habeas corpus for failure to

exhaust state remedies. Because we find that the district court's

evaluation of the issues presented to the state and federal courts

too narrowly interprets the substance of Fergeson's pro se

petitions and that Louisiana's procedural bars render collateral

relief unavailable on any claim not yet presented to the state
2

courts, we remand this matter to the district court for further

proceedings.

Among the claims Fergeson raised in the state courts was that

his guilty plea was not knowing and intelligent because he had

stated during the plea colloquy that he was unable to confirm the

prosecution's recitation of facts inasmuch as he had no memory of

the events. Based on its review of the record, the trial court

denied relief. The state appellate and supreme courts subsequently

denied Fergeson's applications for review. In his petition for

writ of habeas corpus in the federal courts, Fergeson again claims

that his plea was not knowing and intelligent, this time arguing

primarily that he was never informed of the elements of the crimes

charged or the lesser charges to which he pleaded guilty. He

argues that the deficiency of the plea is evident from the record

in that the trial court failed to determine what type of plea was

being entered (i.e. whether or not the plea was an Alford plea),

the indictment was never read for the record, and the elements were

never explained in the record. Fergeson also claims that there was

an element of coercion in his guilty plea, as he was informed that

if found guilty of aggravated rape, he faced a life sentence. The

district court determined that Fergeson's petition presented for

the first time the claims that the guilty plea was faulty because

Fergeson was not informed of the elements of the charged crimes and

that he was coerced into pleading guilty because he faced a life

sentence if convicted of aggravated rape. Consequently, the

district court dismissed the petition without prejudice in order
3

for Fergeson to exhaust his state court remedies. See Rose v.

Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379

(1982); Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993).

To have exhausted state remedies, a habeas petitioner "must

have fairly presented the substance of his claim to the state

courts." Sones v. Hargett, 61 F.3d 410, 414-15 (5th Cir.

1995)(quoting Vela v. Estelle, 708 F.2d 954, 958 (5th Cir. 1983),

cert denied, 464 U.S. 1053, 104 S.Ct. 736, 79 L.Ed.2d 195 (1984)).

"Normally, the exhaustion requirement is not satisfied if a

petitioner presents new legal theories or entirely new factual

claims in his petition to the federal court." Id. at 415 (quoting

Vela, 708 F.2d at 958).

In Vela v. Estelle, 708 F.2d 954 (5th Cir. 1983), cert.

denied, 464 U.S. 1053, 104 S.Ct. 8736, 79 L.Ed.2d 195 (1984), we

rejected the state's argument that the petitioner had failed to

exhaust his state remedies. There, the petitioner had claimed in

both his state and federal petitions that counsel had been

ineffective in the sentencing phase of his trial, but had raised

additional factual grounds for that claim in his supplemental

petition before this court. Acknowledging that we normally refuse

to review on habeas entirely new factual claims never presented to

the state habeas court, we found that petitioner's claims had been

exhausted in the state courts because the issue of counsel's

ineffectiveness was based on the attorney's entire performance and,

although petitioner now noted trial errors not specifically

mentioned in his pro se state habeas petition, all the errors
4

supported the same constitutional claim and were readily

discernible from the review of the entire record the state court

was obligated to carry out. Id. at 958-60. We observed:

Characterizing these allegations as "unexhausted claims"

would require us to find that the state habeas court

failed in its duty to evaluate counsel's performance on

the basis of the record as a whole. This we are

unwilling to do, given that court's citation in its

findings of instances drawn from the record in which

counsel performed properly. Concluding as we do that the

alleged "new facts" are not new at all, we cannot see how

our consideration of these same facts in anyway undercuts

the state court, or creates any friction between the

state and federal judicial systems. Accordingly, we hold

that Vela has exhausted all available state remedies as

required by § 2254(b),(c) . . . .

Id. at 960.

In this matter, the factual underpinnings of Fergeson's claim

that his plea was not knowing and intelligent are somewhat

different in the petitions before the state and federal courts, but

the underlying constitutional violation remains the same, and the

evidence necessary to determine the merits of his claim is

contained in the record that was before the state courts. Indeed,

the state district court observed that the record did not support

petitioner's claim that the plea was "faulty," and the appellate

court, in denying relief, relied on the trial court's review of the

record. We find that the substance of Fergeson's claim that his

guilty plea was not intelligently made was fairly presented to the

state courts and that the district court consequently erred in

finding that Fergeson had not exhausted the claim in the state

courts.

Fergeson briefly argued in his federal petition that there was
5

"an element of coercion" to his plea because he was repeatedly

informed that he faced a life sentence for the charged crime.

Assuming that this was raised as a distinct issue, the claim that

the plea was involuntary is a new claim that the state courts have

not had the chance to address. Dismissal of the petition in order

to permit Fergeson to exhaust his state remedies is not warranted,

however, because the state courts would refuse to hear his claims.

See La.C.Cr.P. art. 930.8 (West Supp. 1995)(establishing three-year

statute of limitations for the filing of petitions for postconviction relief); Glover v. State, So.2d. (La. Sept. 5,

1995)(No. 93-2330), slip op. at 4-20 (upholding constitutionality

of La.C.Cr.P. art. 930.8). Because post-conviction relief in the

state courts is no longer available to Fergeson, he has technically

exhausted his state remedies. See Sones v. Hargett, 61 F.3d 410,

416 (5th Cir. 1995); Deters v. Collins, 985 F.2d 789, 795 n. 16

(5th Cir. 1993). Whether Fergeson's failure to raise this claim

procedurally bars it from review in federal court is an issue to be

addressed on remand.

Accordingly, the district court's judgment is VACATED and the

case is REMANDED to that court for further proceedings.