*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand 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. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 31 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ JOHNNY J. BUSTAMONTE, Petitioner-Appellant,

v. TIM LEMASTER, Warden; ATTORNEY GENERAL OF THE STATE OF NEW MEXICO, Respondents-Appellees. No. 99-2220 (D. N.M.) (D.Ct. No. CIV-97-423-JC)

____________________________ ORDER AND JUDGMENT *

Before BRORBY , EBEL , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is therefore ordered submitted without oral argument.-2-

Appellant Johnny Bustamonte, a state inmate, appeal s the district court’s decision dismissing his habeas corpus petition file d pursuant to 28 U.S.C. § 2254. We deny Mr. Bustamonte’s request for a certificate of appealability and dismiss his appeal.

The State of New Mexico issued a twenty-one-count i ndictment against Mr. Bustamonte relating to a series of crimes involving residential burglaries. Although the State and Mr. Bustamonte’s attorney entered into negotiations concerning a possible plea agreement, they never ag reed on a sentencing disposition and, therefore, never entered into a wr itten plea agreement. The State did, however, verbally offer to dismiss twelve of the counts against Mr. Bustamonte if he pled guilty to the remaining nine counts of aggravated burglary, robbery, armed robbery, aggravated battery and unlawful taking of a motor vehicle. After Mr. Bustamonte pled guilty to these nine counts, the State of New Mexico dismissed the remaining counts against him. At sentencing, the state trial court calculated the term of confinement at sixty-o ne and one-half years followed by two years parole, but suspended the sentence to twenty-five years, followed by two years parole and five years probation. Mr. Bus tamonte unsuccessfully filed a state habeas petition, and the New Mexico Supreme C ourt denied his writ of certiorari.-3-

Thereafter, Mr. Bustamonte filed his § 2254 petitio n claiming: (1) the State violated a plea agreement of thirteen and one -half years in prison when it recommended a thirty-six-year sentence at the sente ncing hearing, and (2) his attorney acted ineffectively when failing to reduce the plea agreement to writing, unreasonably advising him to accept the plea and fa iling to investigate his claims of innocence.

The district court assigned the case to a magistrat e judge who conducted an evidentiary hearing and issued a detailed and compr ehensive report of findings and conclusions of law. The magistrate judge recom mended dismissal of Mr. Bustamonte’s petition, based on a determination: ( 1) Mr. Bustamonte entered his plea knowingly and voluntarily; (2) no plea agreeme nt existed; and (3) his claims of ineffective assistance of counsel lacked merit. After conducting a de novo review of the magistrate judge’s findings and recom mendation, the district court adopted them and dismissed the petition with prejud ice.

On appeal, Mr. Bustamonte presents the following is sue for review: Whether [his] guilty plea was rendered involuntary and unintelligent due to his counsel’s ineffective assi stance when counsel did not ensure that the plea agreement was put in w riting and misinformed him about the sentence he would receive as the result of the plea.1 On appeal, Mr. Bustamonte also contends the magistrate judge contradictorily

states a plea agreement did exist. Mr. Bustamonte refers to the magistrate judge’s statement that “a plea agreement was entered with an agreement as to liability for certain charges but with no agreement as to disposition.” A fair reading of the magistrate judge’s recommendation establishes he meant the parties entered an “oral” agreement or accommodation for dismissal of the remaining charges, but not a written plea agreement on sentencing disposition. The magistrate judge’s statement is qualified in the following sentence, in which he explains Mr. Bustamonte and his counsel “were given the expectation that the charges not pled to would be dismissed,” which in fact did occur. Throughout the remainder of the recommendation, the magistrate judge clearly and correctly determined no plea agreement was entered with, or breached by, the State with respect to sentencing disposition.

-4- In support, Mr. Bustamonte renews the same argument s addressed by the magistrate judge and adopted by the district court, including his contention he and the State entered into a thirteen and one-half-yearsentencing plea agreement. In addition, he contends the magistrate judge erred in not addressing his attorney’s failure to reduce the plea agreement to writing in violation of state law. He also alleges error because the magistrate judge failed t o address his attorney’s hearing testimony stating he thought Mr. Bustamonte’s sente nce would range between a few years to fifteen or eighteen years, and that th e sentence of twenty-five years reached beyond his and Mr. Bustamonte’s expectation s. 1

We begin with the standard of review. “In reviewin g the denial of a habeas corpus petition, we review the district court’s fac tual findings under a clearly erroneous standard, and its legal conclusions de novo .” Rogers v. Gibson , 173-5-

F.3d 1278, 1282 (10th Cir. 1999), cert. denied, ___ U.S. ___, 2000 WL 29471 (U.S. Jan. 18, 2000) (No. 99-6954). We also review de novo Mr. Bustamonte’s ineffective assistance of counsel claim. United States v. Prows , 118 F.3d 686, 691 (10th Cir. 1997). Finally, we give due deferen ce to the district court’s determination of the credibility of witnesses, weig ht afforded their testimony, and reasonable inferences and conclusions drawn therefr om. United States v. GamaBastidas , 142 F.3d 1233, 1239-40 (10th Cir. 1998).

Applying these standards, we have carefully reviewe d the record on appeal. We note the magistrate judge provided a comprehensi ve, well-reasoned analysis of the facts, credibility determinations, and concl usions of law supporting his recommendation and the district court’s dismissal. Therefore, we find it unnecessary to duplicate the same analysis here on issues identical to those addressed below, and agree for substantially the same reasons articulated in the magistrate judge’s recommendation that Mr. Bustamonte did not receive ineffective assistance of counsel. In short, the r ecord clearly supports the magistrate judge’s findings no plea agreement exist ed on sentencing disposition, and, based on the magistrate judge’s credibility de termination, Mr. Bustamonte’s attorney made no representation regarding such an a greement to Mr. Bustamonte. Therefore, Mr. Bustamonte had no expectation of a p lea agreement of a thirteen--6-

and-one-half-year sentence, but only the possible d ismissal of the remaining counts to which he did not plead guilty.

Given the magistrate judge’s thorough analysis, we find no error in the magistrate judge’s omission of any detailed discuss ion on Mr. Bustamonte’s attorney’s statement at the hearing as to his estim ates or expectations for Mr. Bustamonte’s sentence. While his attorney may have estimated, and Mr. Bustamonte may have even expected, a sentence subst antially less than received, we have held that “such circumstances do not invali date a plea or render it involuntary.” See Thomas v. Kerby , 44 F.3d 884, 886 (10th Cir. 1995); accord United States v. Broce , 488 U.S. 563, 572 (1989) (pleading guilty “entail s the inherent risk that the good-faith evaluations of a reasonably competent attorney will turn out to be mistaken either as to the facts or as to what a court’s judgment might be on given facts”). Moreover, given the ove rwhelming evidence against Mr. Bustamonte and the impending possibility of an eighty-seven-year sentence, we cannot say his attorney’s conduct in advising hi m to plead guilty, thereby resulting in his receipt of a twenty-five-year sent ence, fell below an objective standard of reasonableness or that his performance, even if deficient, prejudiced him. See Strickland v. Washington , 466 U.S. 668, 687-88 (1984).-7-

Similarly, we reject Mr. Bustamonte’s claim the mag istrate judge did not address his attorney’s failure to reduce the agreem ent to writing. We note the magistrate judge did address this issue, finding Mr . Bustamonte’s argument on this issue “disingenuous” given the overwhelming ev idence showing a plea agreement on sentencing never existed. Under simil ar circumstances, we held that while counsel may be professionally deficient in not insisting on a written plea agreement, “a document containing no promises regarding sentence would simply have confirmed the qualified character of any estimates counsel may have suggested with respect to [the] probable sentence.” See Thomas , 44 F.3d at 886-
87.

For these, and substantially the same reasons set f orth in the magistrate judge’s May 21, 1999 recommendation, we find Mr. Bu stamonte fails to make “a substantial showing of the denial of a constitution al right,” required for a certificate of appealability. 28 U.S.C. § 2253(c)( 2). Accordingly, we deny Mr. Bustamonte’s request for a certificate of appealabi lity, and DISMISS the appeal.

Entered by the Court: WADE BRORBY United States Circuit Judge