Aguirre v. Dorsey ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 15 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JOSE JUAREZ AGUIRRE,
Petitioner-Appellant,
v. No. 96-2018
(D.C. No. CIV-93-1405-HB)
DONALD A. DORSEY, Warden; (D. N.M.)
ATTORNEY GENERAL OF THE
STATE OF NEW MEXICO,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before PORFILIO and LOGAN, Circuit Judges, and BURRAGE, District Judge. **
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 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This order and judgment is not binding precedent, except under the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.
**
Honorable Michael Burrage, Chief Judge, United States District Court for
the Eastern District of Oklahoma, sitting by designation.
In this appeal from the district court’s denial of his petition for writ of
habeas corpus, petitioner claims that he was denied his Sixth Amendment right to
effective assistance of counsel and that his guilty plea was not voluntary.
Petitioner was charged in state court with aggravated burglary while armed with a
firearm; larceny over $2,500; and conspiracy to commit aggravated burglary. He
entered into a plea agreement and pleaded guilty to the lesser included offense of
residential burglary; larceny over $2,500; and conspiracy to commit residential
burglary, also a lesser included offense. Petitioner was sentenced to a total of
seven and one-half years’ imprisonment. Petitioner did not take a direct appeal,
but he raised several issues in a state habeas action, including ineffective
assistance of counsel and the voluntariness of his plea.
The district court appointed counsel to represent petitioner in his federal
habeas proceedings. Petitioner briefed two issues before the district court: (1)
his plea was not voluntary and intelligent; and (2) his trial counsel was ineffective
because counsel did not properly investigate the charges, and because counsel
gave false assurances regarding the possible length of petitioner’s sentence, thus
rendering his plea involuntary. The district court adopted the magistrate judge’s
findings and recommendation and dismissed the petition. Petitioner appeals.
In our review of the denial of a habeas corpus petition, we accept the
district court’s findings of fact unless they are clearly erroneous, and we review
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its legal conclusions de novo. See Brewer v. Reynolds, 51 F.3d 1519, 1523 (10th
Cir. 1995). Applying these standards, we affirm.
Petitioner claims that he was denied his Sixth Amendment right to effective
assistance of counsel because of counsel’s failure to investigate the charges
against him. To prevail on a claim of ineffective assistance of counsel, petitioner
must show both that counsel’s performance was deficient and that the deficient
performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668,
687 (1984). The district court found that petitioner was unable to satisfy the
Strickland requirements. Plaintiff pleaded guilty to the crime, and his petition
fails to show what investigation by counsel would have revealed, or how it would
have changed the outcome. See id. at 694.
Petitioner also maintains that his plea was involuntary because counsel
misrepresented to him that he would only receive a four-year sentence and
because he did not understand the laws of the United States and did not speak or
read English. As the district court found, petitioner’s exposure to liability was
reduced by entering into the plea agreement, and the consequences of his plea,
including the maximum possible sentences, were explained in open court. The
district court was correct in finding that counsel’s performance was not deficient
and that petitioner made no showing that counsel misrepresented the
consequences of the plea. Noting that the entire hearing was translated by a court
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certified Spanish interpreter, the district court found that the voluntariness of
petitioner’s plea was established in open court, and petitioner’s conclusory
statements to the contrary are without merit. See Worthen v. Meachum, 842 F.2d
1179, 1184 (10th Cir. 1988), overruled on other grounds by Coleman v.
Thompson, 501 U.S. 722 (1991).
The judgment of the United States District Court for the District of New
Mexico is AFFIRMED.
Entered for the Court
John C. Porfilio
Circuit Judge
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