* Pursuant to Local Rule 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

Local Rule 47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-30976

Summary Calendar

CLINTON C. HOWARD, JR.,

Petitioner-Appellant,

versus

CRIMINAL DISTRICT COURT, Orleans Parish;

RICHARD P. IEYOUB, Attorney General, State

of Louisiana,

Respondents-Appellees.

Appeal from the United States District Court

For the Eastern District of Louisiana

(96-CV-1275-E)

June 5, 1997

Before POLITZ, Chief Judge, KING and PARKER, Circuit Judges.

PER CURIAM: *

Clinton Howard appea ls the denial of his application for habeas corpus relief.

For the reasons assigned we affirm.1 See Maleng v. Cook , 490 U.S. 488 (1989).

2 BACKGROUND

Howard is currently serving a 25-year federal prison sentence for possession

of cocaine with intent to dis tribute. Howard filed a habeas petition, invoking 28

U.S.C. § 2254, contending that the district court erred in sentencing because of a

sentence enhancement based on two unconstitutional state court convictions. The

sentences on those convictions have been served and Howard contends that they

were unconstitutional because his guilty pleas thereon were involuntary.

The district court adopte d the magistrate judge’s report and recommendation,

dismissing Howard’s section 2254 application for lack of jurisdiction and,

alternatively, construing his petition as filed under 28 U.S.C. § 2255, denied it on

the merits. Howard timely appealed.

ANALYSIS

Howard challenges the constitutionality of his state court convictions for

which he obviously is not in custody. He is a federal prisoner challenging a federal

sentence. The district court correctly dismissed his section 2254 petition for lack

of jurisdiction. 1

In a prudent concern for judicial economy, we will treat Howard’s

application as if it were filed under section 2255. Doing so we find that he2 United States v. Howard , 991 F.2d 195 (5th Cir.), cert. denied , 510 U.S. 949 (1993).

3 United States v. Kalish , 780 F.2d 506 (5th Cir.), cert. denied , 476 U.S. 1118 (1986).

4 United States v. Samuels , 59 F.3d 526 (5th Cir. 1995).

5 United States v. Drobny , 955 F.2d 990 (5th Cir. 1992).

3 contends that the state trial court did not determine whether he understood the

elements of the offense charged and did not inform him of his right to trial by jury,

the minimum and maximum sentences, and the nature of the charges against him.

On direct appeal we rejected Howard’s contention that he was not advised

of the right to trial by jury. 2 We will not consider that issue again. 3 Howard raises

for the first time his other challenges to the vo luntariness of his guilty pleas.

Ordinarily we will only entertain issues raised for the first time on collateral review

where the prisoner makes a showing of both cause for the procedural default and

prejudice as a result of the constitutional error. 4 The habeas petitioner must only

show cause and prejudice, however, if the government raises the procedural bar in

the district court. 5

In the case at bar, the United States did not appear as a party because the

application was filed under section 2254. Although we could remand to provide

the United States with an opportunity to appear and raise the procedural bar, in the

posture of this appeal we need not do so. Even if Howard were not procedurally6 Parke v. Raley , 506 U.S. 20, 30 (1992).

7 Howard at 200.

4 barred, our review of the record persua des that his claims are without merit.

Howard offers no evidence to sugg est that his guilty pleas were involuntary.

Although the transcripts of the guilty plea proceedings are not available, the

Supreme Court ha s taught that in a collateral attack, “it defies logic to presume

from the mere unavailability of a transcript

. . . that the defendant was not advised

of his rights.” 6 Compelling herein is the fact that in Howard’s direct appeal we

stated that, “[n]othing in the record indicates that Howard was not fully aware of

the rights that he was waiving” and “[t]he record states that Howard was advised

of his ‘constitutional rights.’” 7 Indeed, the record discloses that Howard signed

written guilty plea declarations admitting that the state trial judge informed him of

the rights of which he now contends that he was unaware.

AFFIRMED.