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*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should not be published.
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-2274
Summary Calendar
James H. Messer,
Petitioner-Appellant,
VERSUS
James A. Collins,
Respondent-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
(June 29, 1993)
Before THORNBERRY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
THORNBERRY, Circuit Judge:*
James H. Messer pleaded no contest to a charge of murder and
was sentenced by the state trial court. The district court denied
the relief requested in Messer's federal writ of habeas corpus.
Messer appeals to this court arguing that his plea was involuntary,
his counsel was ineffective and the district court erred for

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1 See Messer v. State, 757 S.W.2d 820 (Tex. Ct. App. 1988).
2 See 28 U.S.C. 2254 (b) and (c).
2
failing to hold an evidentiary hearing on these matters. We affirm
the actions of the district court.
Facts and Prior Proceedings
Messer was charged with the murder of a man that he found in
the home of his estranged wife. He pleaded no contest before a
Texas trial court. The court found Messer guilty of the offense of
murder and assessed punishment at 25 years in the Texas Department
of Criminal Justice. Messer subsequently filed a motion for new
trial, asserting that he was promised a probated sentence and a
fine of $1,000.00 by his counsel, and therefore his plea was
involuntary. An evidentiary hearing was held on the motion for new
trial, and the motion was then denied. A state court of appeals
affirmed the trial court's judgment.1 Messer then filed a
petition for discretionary review, which was refused by the Texas
Court of Criminal Appeals. Without pursuing post-conviction
remedies in the state courts, Messer filed a writ of habeas corpus
in federal district court. The respondent filed a motion to
dismiss the federal application on the ground that Messer had not
exhausted his state remedies. The district court, however, denied
the motion to dismiss finding that Messer did not file a writ in
state court because he had already raised all relevant issues in
the petition for discretionary review which was denied.2 The
district court subsequently denied Messer's application for writ of
habeas corpus on substantive grounds but granted a certificate of

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3
probable cause. Messer appeals to this court arguing that his plea
of nolo contendere was involuntary, his trial counsel was
ineffective and the district court erred by not conducting an
evidentiary hearing.
Discussion
The constitutionality of a guilty plea is measured by whether
the defendant made a knowing and voluntary waiver of his rights
"with sufficient awareness of the relevant circumstances and likely
consequences." Brady v. United States, 397 U.S. 742 (1970).
Whether a guilty plea was made voluntarily is a question of law and
not a question of fact. Marshall v. Lonberger, 103 S.Ct. 843, 849
(1983)(citations omitted). We decide questions of law de novo.
Humphrey v. Lynaugh, 861 F.2d 875, 876 (5th Cir. 1988), cert.
denied, 109 S.Ct. 1755 (1989).
I. Guilty Plea
Messer argues his plea of no contest was involuntary because
he based his decision to plead on an unfulfilled promise of his
trial counsel. According to Messer, his trial counsel promised him
that his punishment would be eight years of probation and a fine of
$1,000.00.
If Messer's attorney promised him that he would definitely
receive probation, this could render Messer's guilty plea
involuntary. "When a defendant pleads guilty on the basis of a
promise by his defense attorney or the prosecutor, whether or not
such promise is fulfillable, breach of that promise taints the
voluntariness of the plea." McKenzie v. Wainwright, 632 F.2d 649,

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651 (5th Cir. 1980). However, a defendant's mere "understanding"
that he will be given a lesser sentence will not invalidate a
guilty plea. Harmason v. Smith, 888 F.2d 1527 (5th Cir. 1989);
Smith v. McCotter, 786 F.2d 697, 701 (5th Cir. 1986)(citations
omitted). To receive federal habeas relief based on an alleged
promise, a prisoner must prove: (1) the exact terms of the alleged
promise; (2) exactly when, where and by whom such a promise was
made; and (3) the precise identity of an eyewitness to the promise.
U.S. v. Smith, 915 F.2d 959, 963 (5th Cir. 1990).
The district court rejected Messer's claims concerning the
alleged promise, basing its decision on the transcripts taken
during the state evidentiary hearing held in response to Messer's
motion for new trial. In addition, the district court concluded
that the transcripts of Messer's plea hearing clearly demonstrated
that Messer acknowledged that his sentence exposure was up to life
imprisonment and a fine of up to $10,000.00; that Messer clearly
understood and acknowledged that the sentence determination was
restricted only by the range of punishment; that Messer never
mentioned during the plea hearing that he understood that probation
was an option; and he acknowledged that he had not been made any
promises to induce his plea. The district court also found that
Messer had signed a written "Waiver of Constitutional Rights,
Agreement to Stipulate and Judicial Confession" in which he
admitted to committing the crime as alleged in the indictment.
Further, at the punishment hearing, Messer never attempted to
challenge the sentence nor withdraw his plea of no contest. Based

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on these findings, the district court held that Messer's
allegations concerning the voluntariness of his plea were without
merit. We agree with the district court's opinion.
The transcript from the hearing on Messer's motion for new
trial reflects that his retained trial counsel testified that on
one occasion she informed Messer that her "impression" and "belief"
were that the court was "favorably disposed" to grant him
probation. She testified that during that conversation, she
informed Messer that she "thought" he would get probation. She
further testified that prior to the arraignment, she informed
Messer "that if he entered his plea of no contest[,] he would be
placed on probation for a period of eight years and given a fine of
one thousand dollars." Messer's trial counsel admitted during the
hearing that she made that statement "predicated upon her belief
and interpretation" of conversations with the trial judge.
During cross-examination, trial counsel testified that the
trial judge had "committed" to place Messer on probation for eight
years with a fine of $1,000.00. She nevertheless admitted that she
told Messer that the State had not agreed on a sentence.
Our thorough review of the record reflects that when Messer
entered his plea of no contest, he received ample admonishments and
made solemn declarations which conflict with his allegations on
appeal. In addition, the trial court informed Messer about the
range of punishment and was informed that "the only thing that
would restrict the [c]ourt in assessing punishment is the range of
punishment that I've already given you." The court further stated

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that it would consider all the alternatives to punishment, but it
added that "the [c]ourt is not required to grant you that
alternative treatment just because you qualify." Messer also
learned at this same hearing that the State was reserving the right
to argue at a later punishment hearing for whatever punishment it
felt appropriate. Messer nor his counsel ever told the court at
any time prior to his motion for new trial that he had been
promised probation.
Messer testified that it was his "understanding" that he would
be given probation. In addition, his trial counsel testified that
she could not remember if she used the word "promised" in her
discussions with Messer about the probability of probation.
Further, Messer's solemn declarations in open court that he
understood the full sentencing range and that he had been promised
nothing, carry a strong presumption of merit. Blackledge v.
Allison, 97 S.Ct. 1621 (1977). Under these circumstances, the
conversations between Messer and his trial counsel do not amount to
an "actual promise" upon which relief could be granted by this
court. See e.g. Smith v. McCotter, 786 F.2d 697, 701 (5th Cir.
1986); Self v. Blackburn, 751 F.2d 789, 793 (5th Cir. 1985). The
transcript from the motion for new trial hearing and the
circumstances of Messer's plea do not indicate his reliance on a
firm sentencing agreement or promise. Rather, these events
demonstrate no more than a mere understanding on his part that his
sentence would probably be probation. Messer has failed to prove
the existence of an actual promise. Therefore, based on the

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record, we cannot say that Messer's plea of no contest was
involuntary and unknowing and that the issuance of a writ of habeas
corpus should therefore follow.
II. Effective Counsel
Messer next argues that his trial counsel was ineffective.
The burden of proof in a habeas corpus proceeding attacking the
effectiveness of trial counsel is upon the petitioner, who must
demonstrate counsel's ineffectiveness by a preponderance of the
evidence. Martin v. Maggio, 711 F.2d 1273, 1279 (5th Cir. 1983),
cert. denied, 469 U.S. 1028 (1984). To prove ineffective
assistance of counsel, Messer must show that his trial counsel's
performance was deficient and that the deficient performance
prejudiced him. Strickland v. Washington, 104 S.Ct. 2052 (1984).
To satisfy the "prejudice" requirement in a claim arising out
of the plea process, such as this one, the defendant must show that
there was a reasonable probability that, but for the counsel's
errors, he would not have pleaded no contest and would have
insisted on going to trial. Hill v. Lockhart, 106 S.Ct. 366, 370
(1985). The defendant may not simply allege prejudice--he must
affirmatively prove it. Bonvillain v. Blackburn, 780 F.2d 1248,
1253 (5th Cir.), cert. denied, 476 U.S. 1143 (1986). Where the
alleged error of counsel is counsel's misunderstanding of the range
of punishment likely to be dispensed by the trial court, the
resolution of the "prejudice" inquiry will depend largely on
whether the defendant would have received a less severe punishment
after a jury trial. See Hill, 106 S.Ct. at 370-371.

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3 Messer admitted to sticking Schwarz's tires with a pen
knife, while his children were present. He told the children, "let
him explain that to his wife".
8
Messer asserts that he has shown that he was prejudiced
because he and his trial counsel testified, during the hearing on
his motion for new trial, that he would have gone to trial had he
known that he would not receive a probated sentence. His trial
counsel affirmed that she would not have advised Messer to plead no
contest had she known he would not receive a probated sentence.
Although Messer provides testimony reflecting an apparent
"probability" that he would go to trial had he known he would not
have received probation, Messer has not shown by a preponderance of
the evidence that probability was "reasonable". See Hill, 106
S.Ct. at 370-371. For example, the record reflects that there was
an overwhelming amount of damaging evidence that existed against
Messer. On January 11, 1986, Messer's estranged wife, a girlfriend
and the complainant, and Thomas Michael Schwarz came home from a
party at 2:40 a.m. and found Schwarz's tires flattened.3 Later,
after returning from the girlfriend's apartment to pick up
necessities for an overnight stay, all three observed Messer
sitting in his parked car on the street in front of Mrs. Messer's
house. Messer subsequently came to the door and began to question
Mrs. Messer about the presence of Schwarz. Schwarz walked to the
front door and Messer pulled a pistol from behind his back and
fired one time, striking Schwarz in the left eye, killing him
instantly.
Messer's Pre-sentence Investigation Report (PSR) indicates that

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4Messer was picked up on the weapons charge after threatening
a friend and kicking in his in-laws door in search of his wife who
he thought was with another man.
9
Messer slashed Schwarz's tires in the presence of his children.
He then took his children home, returned and went to the front door
of Mrs. Messer's home to question her about the presence of
Schwarz. His statement indicates that he had a detailed
conversation with Mrs. Messer about calling Schwarz's wife before
the shooting. The PSR reflects that Mrs. Messer was on her way to
the telephone to call Schwarz's wife for Messer, when Schwarz was
killed.
Messer and his trial counsel have insisted that if they had
known that the trial judge would assess probation as punishment for
his crime, they would have proceeded to trial in an attempt to
pursue a voluntary manslaughter charge. We think that Messer has
not shown by a preponderance of the evidence that it was likely
that he would have been entitled to such an instruction. It is
questionable whether the facts of this case would have met the
requirement that the crime be committed in sudden passion. See
Tex. Penal Code § 19.03 (Vernon Supp. 1990). In addition, Messer's
PSR also shows that he had a misdemeanor conviction in 1973 for
carrying a prohibited weapon. Messer's description of the events
surrounding this charge as cited in the PSR are not favorable to
Messer as well.4 The record also contains other examples of
Messer's reactions concerning his suspicions about extra-marital
affairs by his wife. Therefore, based on the record, we find that
Messer has not carried his burden in proving that he was prejudiced

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by his trial counsel's action.
III. Evidentiary Hearing
Messer argues that the district court erred in not conducting
an evidentiary hearing. According to Messer, such a hearing was
necessary because the state courts did not provide factual findings
explaining why the denial of his motion for new trial was proper.
Whether an evidentiary hearing is necessary depends on an
assessment of the record. Smith, 915 F.2d at 964. If a district
court cannot resolve the allegations without examining evidence
beyond the record, it must hold a hearing. Id. If the record is
clearly adequate to dispose fairly of the allegations, the court
need inquire no further. Id.
The record in this case supplies ample evidence regarding the
voluntariness of Messer's plea and the assistance of his trial
counsel. An evidentiary hearing, therefore, was not required.
Conclusion
For the foregoing reasons, we affirm the judgment of the
district court.

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