Perez v. Furlong ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 30 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ALVARO PEREZ,
Petitioner-Appellant,
v. No. 96-1281
(D.C. No. 95-B-3213)
ROBERT FURLONG, Warden of the (D. Colo.)
Limon Correctional Facility; GALE
NORTON, Attorney General of the
State of Colorado,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before KELLY and HENRY, Circuit Judges, and DOWNES, ** District Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
The Honorable William F. Downes, District Judge, United States District
Court for the District of Wyoming, sitting by designation.
Petitioner Alvaro Perez appeals from the denial of habeas relief sought
under 28 U.S.C. § 2254. Adopting the recommendation of the magistrate judge,
the district court rejected petitioner’s claims as both meritless and procedurally
barred. As explained below, we agree on the merits and therefore need not reach
the procedural bar ruling.
In 1986, petitioner pled guilty to first-degree sexual assault, with a
mandatory sentence for violent crime, in exchange for dismissal of an associated
charge of second-degree kidnaping. He received a fifteen-year sentence, well
within the applicable range of twelve to twenty-four years. At the time, the state
parole board interpreted the pertinent statutes to require mandatory release,
ordinarily at mid-sentence (the parole date as determined by deducting vested
good time and earned time credits), for crimes like petitioner’s committed
between July 1, 1979 and July 1, 1985. However, the board later changed its
view, reading the same statutory scheme to except such sex offenses from
mandatory parole, and the state supreme court adopted the same interpretation in
Thiret v. Kautzky, 792 P.2d 801 (Colo. 1990).
Thereafter, petitioner sought post-conviction relief on the ground that his
plea was involuntary, based as it was on the nullified premise that release would
be mandatory at mid-sentence. The state trial and appellate court rejected the
claim as barred by the three-year limitation period in Colo. Rev. Stat. § 16-5-402,
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holding petitioner lacked a justifiable excuse for not objecting to the loss of his
mandatory-parole entitlement earlier, even though the entitlement was then still
recognized by the board. The supreme court denied certiorari. On rehearing,
petitioner allegedly added the unsuccessful argument that, by barring claims for
as-yet unaccrued grievances, the limitation statute was unconstitutional.
This proceeding followed. Alleging that the (mis)understanding regarding
mandatory parole, shared by all participants in his prosecution, constituted a
material part of his agreement to plead guilty, petitioner claimed his plea was
rendered involuntary when this “plea bargain” was breached. (He also couched
this claim in terms of a constitutionally inadequate understanding of the penal
consequences of his plea caused by a material misrepresentation by counsel.) In
addition, he asserted that the state courts’ application of § 16-5-402 violated due
process by barring his claim before it had accrued.
The magistrate judge recommended denying the petition on both procedural
and substantive grounds. The judge held petitioner’s present claims had not been
advanced, in sufficiently federal-constitutional terms, in the state proceedings
and, therefore, were unexhausted. Applying the “anticipatory denial” rule of
Coleman v. Thompson, 501 U.S. 722, 735 n.* (1991), the judge concluded the
claims were now procedurally defaulted in state court and, finding no cause for
this default, held they were procedurally barred in federal habeas. See Gray v.
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Netherland, 116 S. Ct. 2074, 2080 (1996). On the merits, the judge held that
petitioner’s parole misunderstanding did not warrant relief under Hill v. Lockhart,
474 U.S. 52 (1985), and that § 16-5-402 constituted a “reasonable” limitation on
the assertion of federal rights permitted under Francis v. Henderson, 425 U.S. 536(1976), and Michel v. Louisiana, 350 U.S. 91 (1955). The district court approved
the magistrate judge’s recommendation, and dismissed the petition.
We agree petitioner’s plea challenge fails on the merits. Construed as
asserting the state breached his plea bargain, the claim lacks the necessary factual
premise--there is no evidence the state made any promises about mandatory
parole. “That all of the parties may have understood mandatory parole to apply at
the time of the plea does not make this a part of the plea agreement.”
Cunningham v. Diesslin, 92 F.3d 1054, 1060 (10th Cir. 1996); see also
Lustgarden v. Gunter, 966 F.2d 552, 555 (10th Cir. 1992) (defense counsel’s
promise of mandatory parole would not bind government).
Construed as asserting counsel misrepresented, and petitioner consequently
misunderstood, the availability of mandatory parole, the claim lacks the requisite
showing of reliance or prejudice. Petitioner “did not allege in his habeas petition
that, had counsel correctly [anticipated the change in parole availability] . . ., he
would have pleaded not guilty and insisted on going to trial.” Hill, 474 U.S. at
60. Further, he has not alleged, and nothing in the transcript excerpt attached to
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the petition suggests, he voiced any reliance on mandatory parole when entering
his plea; rather, the transcript reflects a different, and fully adequate, motivation
for the plea--the prosecution’s agreement to drop a second serious felony charge.
Cf. Cunningham, 92 F.3d at 1062. Finally, this case presents no “special
circumstances” suggesting petitioner might have placed particular emphasis on
mandatory parole in his decision whether to plead or go to trial:
Indeed, petitioner’s mistaken belief that he would become eligible
for [mandatory] parole after serving one-[half] of his sentence would
seem to have affected not only his calculation of the time he likely
would serve if sentenced pursuant to the proposed plea agreement,
but also [and equally] his calculation of the time he likely would
serve if he went to trial and were convicted.
Hill, 474 U.S. at 60.
Under the circumstances, habeas relief was properly denied on the merits.
This conclusion obviates any need to consider federal procedural-bar principles or
the constitutionality of § 16-5-402 as applied to petitioner.
The judgment of the district court is AFFIRMED. Petitioner’s second
motion for appointment of counsel is denied. The mandate shall issue forthwith.
Entered for the Court
Robert H. Henry
Circuit Judge
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