1 This order and judgment is not binding precedent, except under the doctrines of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 disfa vors 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.



### UNITED STATES COURT OF APPEALS Filed 3/19/96 FOR THE TENTH CIRCUIT GORDON KEVIN BARNES, )

) Petitioner-Appellant, ) ) No. 95-1490 v. ) (D.C. No. 95-K-892) ) (D. Colorado) RANDY HENDERSON; ATTORNEY ) OF THE STATE OF COLORADO, ) ) Respondents-Appellees. )

___________________________ ORDER AND JUDGMENT 1



### ____________________________ Before PORFILIO, MCKAY, and KELLY, Circuit Judges.

_____________________________

Because neither party has requested oral argument, we will consider this case on the briefs. The facts are well known to both sides and will not be set forth here in detail.- 2 -

This is an appeal from the denial of a petition fora writ of habeas corpus under 28 U.S.C. § 2254. Petitioner c ontends the district court erred by not granting him relief fro m a state conviction upon a guilty plea entered in 1977. Pet itioner claims the plea was involuntary because the state court improperly advised him of the places in which he could be incarcerated . We affirm. Petitioner was originally sentenced under the Color ado Sex Offender Act which provides for a sentence to an in definite term of treatment and incarceration until the offender i s no longer a threat to harm members of the public. Petitioner c omplains the state court did not advise him that he could be imp risoned in the state penitentiary as well as the state hospital; t herefore, his plea was involuntary. The issue has significance b ecause petitioner was paroled from this sentence, but paro le was revoked for commission of similar offenses, the sentences o f which are running concurrently with the indeterminant life se ntence he received under the Sex Offender Act. The United States Magistrate Judge considered the i ssues, reviewed the state record, and concluded there was no factual support for the petitioner’s contention. According ly, the magistrate recommended denial of the petition. The district court adopted the magistrate’s findings and accepted the recommendation. Upon dismissal of the petition, this appeal ensued. We need only examine the state record to find a bas is for- 3 -

agreement with the district court’s disposition. U pon doing so, we find two facts are clear. First, queried by the st ate judge upon arraignment, petitioner stated no one had made him any promises regarding his plea other than “what has been statedby the District Attorney.” Second, again in response to the court’ s questioning, petitioner stated he understood the sentence under the Sex Offender Act could “require [his] curtailment or type of imprisonment for the rest of your natural life.” (emphasis added). Although there are many answers to the issue raised , the absence of supportive facts leaves petitioner witho ut an argument for reversal. Petitioner’s statement to the state court that no promises other than those of record belies his pres ent contention that he was promised he would not be held in the pe nitentiary. There was no such promise made or inferred of recor d in the arraignment proceeding. Second, although the stat e judge did not tell petitioner he could spend time in the state pe nitentiary specifically, he did warn petitioner he could be imprisoned. Petitioner also understood the possibility he couldbe confined in an institution other than the hospital and that the alternative place could be a penal facility. His latter day co ntention that he was unaware that the penal facility was the Colorad o State Penitentiary simply rings hollow. The responses petitioner made at the time of his ar raignment “constitute a formidable barrier in any subsequent collateral- 4 -

proceedings.” Blackledge v. Allison , 431 U.S. 63, 74 (1977). From the answers given by petitioner in response to the questions we have noted, we must presume that he was properly in structed on the consequences of his plea and that the plea was volu ntary. Worthen
v. Meachum, 842 F.2d 1179, 1183 (10th Cir. 1988). Moreover, the statements made at arraignment completely refute th e contentions he now asserts. Cf. Hedman v. United States , 527 F.2d 20, 22 (10th Cir. 1975).

AFFIRMED.

Entered for the Court John C. Porfilio Circuit Judge