1 Local Rule 47.5 provides: "The publication of opinions that

have no pre cedential 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 Pursuant to that Rule, the Court has determined that this opinion should not be published. UNITED STATES COURT OF APPEALS
for the Fifth Circuit

_____________________________________

No. 95-30388 Summary Calendar

_____________________________________

JAMES EARL COOLEY,

Petitioner-Appellant,

VERSUS

RICHARD P. IEYOUB, Attorney General, State of Louisiana, and BURL CAIN, Acting Warden, Louisiana State Penitentiary,

Respondents-Appellees.

______________________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

(92-CV-2234 A)

______________________________________________________ November 6, 1995 Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.

PER CURIAM: 1

Cooley appeal s from the district court's order denying his

p etition for a writ of habeas corpus. He argues that his guilty

plea was induced by a promise, made by both the state trial judge

and his c ourt-appointed attorney, that he would be released from

prison after service of ten years, six months. The alleged promise

was never fulfilled. Appellant filed this federal action in 1992,2

seven years after the final denial of his state habeas petition and

twenty years after entering his plea of guilty to murder.

The district court denied the petition on two grounds. First,

it determined the state had demonstrated that the seven year delay

had caused it prejudice and was the result of the defendant's

failure to act with reasonable diligence. Rule 9(a) of the Rules

Governing Section 2254 Cases, therefore, required dismissal of the

petition. Second, it concluded that Cooley was not entitled to

relief on the merits. When a petitioner alleges that an unkept

promise induced him to plead guilty, he must prove: (1) the exact

terms of the alleged promise; (2) when, where, and when such a

promise was made; and (3) the in dentity of an eyewitness to the

promis e. S mith v. Blackburn

, 785 F.2d 545, 548 (5th Cir. 1986)

(citing Black ledge v. Allision , 431 U.S. 63, 76 (1977)). By the

time of this petition, the state trial judge who had accepted

Cooley's plea, his defense counsel, and the prosecutor were all

dead. And the transcript of the 1972 hearing had been destroyed.

Co oley and his brother, however, testified that the promise had

been made and was discussed in open cou rt. The judge's minutes

clerk, on the other hand, stated that if the court had said Cooley

would be entitled to release after ten years and six months he

would have recorded it. No such statement appears in the record.

The district court found the clerk's testimony more credible than

that of the appellant or his brother and dismissed the petition.

We affirm on the merits rather than on procedural grounds.

The state may well have suffered prejudice from Cooley's inordinate3

delay in filing his federal habeas petition. The record suggests,

however, that the defendant may not have received adequate notice

of the state's intent to move for dismissal on Rule 9(a) grounds.

See McDonnell v. Estelle

, 666 F.2d 24 6, 253 (5th Cir. 1982). We

therefore decline to affirm on this ground. However, the district

court did not clearly err in finding that appellant failed to carry

his burden of proof as to the existe nce of the alleged promise.

This court defers to the district court when factual determinations

are based on credibility. W illiams v. Fab-Con, Inc.

, 990 F.2d 228,

239 (5th Cir. 1993). We therefore affirm on the merits. C ooley v.

Whitley , No. 92-CV-2234 A (E.D.La. Mar. 31, 1995).

AFFIRMED.