Haynes v. Henderson, 73-1463 Summary Calendar.

• Decision Date: 13 July 1973
• Docket Number: No. 73-1463 Summary Calendar.,73-1463 Summary Calendar.
• Citation: 480 F.2d 550
• Parties: Aubrey Leon HAYNES, Petitioner-Appellant, v. C. Murray HENDERSON, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

480 F.2d 550 (1973)

Aubrey Leon HAYNES, Petitioner-Appellant, v. C. Murray HENDERSON, Warden, Respondent-Appellee.

No. 73-1463 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

June 4, 1973.

Rehearing and Rehearing Denied July 13, 1973.

Aubrey Leon Haynes, pro se.

James Yelldell, Asst. Dist. Atty., 4th Judicial Dist. Ct., Bastrop, La., William J. Guste, Jr., Atty. Gen., Baton Rouge, La., for respondent-appellee.

Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

Rehearing and Rehearing En Banc Denied July 13, 1973.

PER CURIAM:

This is an appeal from the district court's denial of habeas corpus relief to Aubrey Leon Haynes, a prisoner of the State of Louisiana. We affirm the ruling below.

Haynes is attacking the validity of his conviction and sentence for burglary in the Fourth Judicial District Court of Louisiana. Represented by court-appointed counsel, Haynes was convicted on his plea of guilty. On October 27, 1971, he was sentenced to serve nine years' imprisonment, to run consecutively to any and all other sentences. There was no direct appeal; but the appellant has exhausted his available state remedies in compliance with the requirements of 28 U.S.C. § 2254(b). See Haynes v. Henderson, 1972, 263 La. 97, 267 So.2d 208.

Appellant contends, first, that his plea was not intelligently and understandingly made, due to the trial court's failure to advise him that the sentence could be provided to run consecutively to any other sentences. He alleges that he was serving another 10-year sentence (for an apparently unrelated offense) at the time of sentencing in the instant case. There is no merit to this contention.

The record shows that the state court fully complied with the requirements of Boykin v. Alabama, 1969, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, in advising the defendant of his rights. The court further advised Haynes that he could be sentenced to serve up to nine years in the penitentiary, in the sole discretion of the court. That statement in itself sufficed to advise Haynes that the sentence could be made to run independently of any other sentence which he may have to serve, in the discretion of the trial court.

Haynes alleges for the first time in his brief filed in this Court, that his counsel misled him by stating, in pertinent part, "your sentence will begin on the day you were arrested." This contention was not presented below, nor in the state courts,¹ and accordingly it will not be considered by us on this appeal. Chunn v. Clark, 5th Cir. 1971, 451 F.2d 1005, and cases cited therein.

Secondly, Haynes asserts that the trial court incorrectly advised him that he could be sentenced to the Louisiana State Penitentiary. Appellant relies on a 1968 Louisiana statute² which provides, in part, as follows:

"Notwithstanding any provision of law to the contrary, any individual subject to confinement in a state adult penal or correctional institution shall be committed to the Louisiana Department of Corrections and not to any

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