* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20782

Summary Calendar

WILLIE JAMES MITCHELL, JR

Petitioner-Appellant

v.

NATHANIEL QUARTERMAN, 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. 4:06-CV-3059

Before JOLLY, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Willie James Mitchell, Texas prisoner # 1148418, appeals the district

court’s denial of his 28 U.S.C. § 2254 petition, challenging his guilty plea

conviction for aggravated assault with a deadly weapon. The district court

granted a certificate of appealability concerning the following claims:

(1) Mitchell’s trial counsel was ineffective in that he erroneously advised

Mitchell that his best chance for being sentenced to community supervision

United States Court of Appeals

Fifth Circuit

F I L E D

July 23, 2008

Charles R. Fulbruge III

Clerk
No. 07-20782

2

would be to plead guilty to aggravated assault with a deadly weapon; and

(2) trial counsel failed to advise Mitchell concerning his parole eligibility.

Mitchell argues that his counsel was ineffective in that he advised him to

reject the State’s first plea offer of 15 years for pleading guilty to burglary of a

habitation and incorrectly advised him that he had a chance of receiving

community supervision if he entered an open plea to the offense of aggravated

assault with a deadly weapon. The state habeas court determined that under

Texas law, Mitchell was eligible for deferred adjudication community

supervision at the time he pleaded guilty and, therefore, Mitchell’s counsel did

not misadvise him about the possibility of being sentenced to deferred

adjudication community supervision; the Texas Court of Criminal Appeals

denied Mitchell’s application based on these findings. In a federal habeas case,

we do not review a decision of the state’s highest court interpreting its own state

law. Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1995). Because Mitchell’s

counsel correctly advised him that he was eligible for deferred adjudication

community supervision at the time he pleaded guilty, the district court did not

err in determined that counsel’s performance was not deficient. See Strickland

v. Washington, 466 U.S. 668, 689-94 (1984).

Mitchell argues that his counsel was ineffective in that he failed to advise

him concerning his parole eligibility for both burglary of a habitation and

aggravated assault with a deadly weapon. Neither the Supreme Court nor this

court has held that a counsel’s failure to advise a defendant regarding parole

eligibility amounts to ineffective assistance of counsel. See Hill v. Lockhart, 474

U.S. 52, 54-55, 60; James v. Cain, 56 F.3d 662, 667 (5th Cir. 1995). Further,

Mitchell has not shown that he was prejudiced by his counsel’s alleged error. He

argues that if he had been informed of his parole eligibility, he would have

accepted the State’s 15 year plea bargain for a guilty plea for burglary of a

habitation. However, under Hill, a petitioner must show that but for counsel’s

error, he would not have pleaded guilty and would have insisted on going to
No. 07-20782

3

trial. See Hill, 474 U.S. at 60. Mitchell does not argue that, had he been advised

correctly concerning his parole eligibility, he would not have pleaded guilty and

instead would have insisted on proceeding to trial. If he had not pleaded guilty

and insisted on going to trial for the burglary of a habitation offense, he would

have faced a minimum sentence of 15 years and a maximum sentence of life

imprisonment. See TEX. PENAL CODE §§ 12.42(c)(1), 30.02(d). Mitchell has

identified no “special circumstances that might support the conclusion that he

placed particular emphasis on his parole eligibility in deciding whether or not

to plead guilty.” See Hill, 474 U.S. at 60; see also Czere v. Butler, 833 F.2d 59,

63-64 (5th Cir. 1987). Therefore, the district court did not err in denying this

claim because Mitchell had not shown that he was prejudiced by his counsel’s

failure to advise him regarding his parole eligibility. See Hill, 474 U.S. at 60; see

also Czere, 833 F.2d at 63-64. The district court’s judgment is AFFIRMED.