PUBLISH
UNITED STATES COURT OF APPEALS Filed 8/13/96 TENTH CIRCUIT

ANTHONY LEE CUNNINGHAM,

Petitioner-Appellant,

v. WARREN T. DIESSLIN, Warden, Buena Vista Correctional Facility, Colorado Department of Corrections,

Respondent-Appellee. No. 95-1166

Appeal from the United States District Court for the District of Colorado (D.C. No. 93-Z-894)

Kathleen A. Lord, Deputy State Public Defender (Dav id F. Vela, Colorado State Public Defender, with her on the brief), Denver, Co lorado, for PetitionerAppellant. Robert M. Petrusak, Senior Assistant Attorney Gener al (Gale A. Norton, Attorney General, with him on the brief), Denver, Colorado, for Respondent-Appellee.-2-

Before SEYMOUR, Chief Judge, KELLY, and MURPHY, Circuit Judges.

MURPHY , Circuit Judge.

Anthony Lee Cunningham appeals from the district co urt’s denial of his petition for a writ of habeas corpus. In 1982, Cun ningham pleaded guilty in Colorado state court to first-degree sexual assault . He now argues that his plea was neither knowingly nor intelligently entered bec ause he did not understand the length of incarceration to which he could be subjec ted. Cunningham mistakenly believed that he would serve only half of his sente nce. He seeks specific performance of the plea bargain as understood by th e parties or, in the alternative, to withdraw his plea. For the reasons given below, this court affirms the judgment of the district court.
I. BACKGROUND Cunningham was originally charged in the District C ourt, City and County of Denver, Colorado, with first-degree sexual assau lt and three other counts. He pleaded guilty to the sexual assault charge, a clas s-2 felony, on September 13, 1982. Colo. Rev. Stat. § 18-3-402(3). The State s ubsequently dismissed the remaining counts. At the time of his guilty plea, first-degree sexual assault1 The Colorado state court heard both Cunningham’s pl ea in 1982 and his

subsequent habeas petition in 1989. For ease of re ference, we will refer to the state court as the “trial court” in connection with Cunningham’s plea and sentencing. We will refer to the state court as th e “habeas court” in relation to Cunningham’s habeas proceedings. -3- carried a possible sentence of twelve to twenty fou r years incarceration. Id. § 18- 1-105(1)(a)(I), (9)(e). The trial court 1 sentenced Cunningham to seventeen years. Consistent with the plea agreement, however, the tr ial court stayed Cunningham’s sentence. Instead of incarceration un der the Department of Corrections, the plea agreement provided that Cunni ngham, who was eighteen at the time of his plea, would enter a treatment progr am at the Closed Adolescent Treatment Center under the supervision of the Department of Youth Services. If Cunningham violated any of the rules of the treatme nt center, however, the trial court would lift the stay of his sentence and he wo uld serve the balance of his sentence under the supervision of the Department of Corrections. As a result of Cunningham’s subsequent violation of the rules of the Closed Adolescent Treatment Center, the trial court termin ated his treatment on July 6, 1984. In accordance with the terms of the plea agr eement, the trial court permanently lifted the stay of Cunningham’s sevente en-year prison sentence and ordered him transferred to the Department of Correc tions. At the time Cunningham committed his offense, Color ado generally sentenced persons under a determinate sentencing sc heme. See Thiret v. Kautzky ,2 Under § 17-22.5-301(1) of the Colorado Revised Statutes, a person serving

a sentence for a crime committed between July 1, 19 79, and July 1, 1985, could earn a good time deduction equal to one day of cred it against a sentence for each day served. Price v. Mills , 728 P.2d 715, 718 (Colo. 1986) (en banc). The sa me inmate could receive additional earned time deducti ons under § 17-22.5-302(1). The Colorado Supreme Court has construed the interp lay between § 17-22.5- 301(1) and § 17-22.5-302(1) to provide for a deduct ion of approximately one-half of the sentence received, assuming the inmate earne d the maximum allowances. People v. Alexander , 797 P.2d 1250, 1254 & n.6 (Colo. 1990) (en banc) (giving the example that an inmate sentenced to 50 years wh o received the maximum deductions would be released after serving approxim ately 23 years). Cunningham based his understanding that he would serve only on e-half of his sentence on this calculation.

3 In 1988, the Colorado legislature amended the parol e provisions of its criminal code to authorize increased discretion to the Parole Board to grant or deny parole. See Thiret v. Kautzky , 792 P.2d 801, 805 (Colo. 1990). -4- 792 P.2d 801, 804 (Colo. 1990) (en banc). This sch eme removed substantially all discretion from the sentencing courts and the Color ado State Parole Board (the “Parole Board”). Id. at 803-04. Persons sentenced under the determinat e scheme received mandatory parole after reaching the parole date, determined by deducting vested good time and earned time credits from the s entence. 2 Id. at 805. Thus, under the determinate scheme, the Parole Board coul d not extend the parole date beyond that established by the formula. From the t ime of the legislature’s enactment of determinate sentencing in 1979 until J anuary 1989, the Parole Board interpreted the requirement of mandatory parole to apply to all inmates serving sentences for crimes committed between July 1, 1979 , and July 1, 1985, with limited exceptions. 3 Thiret , 792 P.2d at 806.4 The Sex Offenders Act reads: “Sex offense” means sexual assault, except misdemea nor sexual assault in the third degree, as set forth in part 4 of article 3 of title 18, C.R.S.; sexual assault on a child, as defined in section 18-3-405, C.R.S.; aggravated incest, as defined in section 18-6-302, C.R.S.; and an attempt to commit any of the offenses mentioned in this subsection (5). Colo. Rev. Stat. § 16-13-202(5). -5- One exception to mandatory parole, in the Parole Bo ard’s pre-1989 view, was for persons sentenced pursuant to the indetermi nate scheme of the Sex Offenders Act, §§ 16-13-201 to -216 of the Colorado Revised Statutes. Thiret , 792 P.2d at 803; Aue v. Diesslin , 798 P.2d 436, 438 n.2 (Colo. 1990) (en banc). Persons sentenced under this indeterminate scheme w ere not subject to mandatory parole but were reviewed yearly by the Parole Board

. Id. Cunningham was not sentenced for first-degree sexual assault under the Sex Offenders Act, but was given a determinate sentence under § 18-3-105(1)(a) (I), (9)(e) of the Colorado Revised Statutes. The Parole Board changed its interpretation of the exception to the mandatory parole provision in January 1989. Under this new interpretation, all individuals sentenced for any sex offense, as the S ex Offenders Act defines “sex offense,” 4 but not limited to those who were sentenced pursua nt to that Act, were not subject to mandatory parole. Thiret , 792 P.2d at 803. The Parole Board thus-6-

had discretion to grant or deny parole to all perso ns convicted of a defined sex offense even if they had received a determinate sen tence. Id. The Colorado Supreme Court has since upheld the Parole Board’s n ew interpretation of the extent of its discretion and the consequent retroac tive increase in incarceration time. Id. at 806-07; see also Aue , 798 P.2d at 441 (upholding the Thiretdecision against a due process challenge on the ground that the new interpretation was foreseeable). Soon after the Parole Board changed its interpretat ion of its authority under § 17-2-201(5)(a), Cunningham learned that mandatoryparole would not apply to him. On August 2, 1989, he filed a motion in Color ado state court to vacate his plea. Cunningham argued he did not voluntarily and knowingly enter his guilty plea because he did not understand the consequences . In particular, Cunningham alleged he was advised by counsel that if he were s entenced to prison, his sentence would be subject to mandatory parole. Cun ningham claimed to understand this to mean that he would be released f rom prison after serving only one-half of his sentence. He alleged that he was n ot advised that he would fall into an exception to mandatory parole because his c onviction was for a sex offense. The habeas court subsequently held a hearing and de nied Cunningham’s motion to vacate his plea. At this hearing, the pa rties stipulated to certain-7-

pertinent facts: (1) Cunningham’s initial counsel advised his clients that they would only have to serve one-half of their sentence s less earned time; (2) the district attorney who negotiated the plea also beli eved that the maximum time of incarceration would be one-half the sentence impose d; and (3) this half-time provision was not part of the plea offer. In addit ion, Cunningham’s attorney at the time of his guilty plea stated on the record an d without objection that he understood mandatory parole to apply and that he ad vised Cunningham he would serve half his sentence if the stay were lifted. Cunningham also testified at the hearing in the hab eas court. He stated he was advised by counsel and understood that the maxi mum amount of time he could be incarcerated under the plea agreement was one-half the maximum penalty of twenty four years. He explained that th is understanding was the only reason he pleaded guilty. Cunningham also testifie d that if he had known he would have to serve his entire sentence, he would n ot have pleaded guilty. The habeas court denied Cunningham’s requested reli ef and ruled that his plea was voluntarily and intelligently made. The h abeas court pointed to the many advisements by the trial court on the record t o Cunningham that he could receive a twenty four-year sentence. Prior to taki ng his plea, the trial court specifically told Cunningham of the possible twentyfour-year sentence at least five times. The trial court also warned Cunningham , prior to taking his plea, that-8-

it was considering a sentence of about sixteen year s and that if he violated the rules of the treatment center, “[Y]ou are going to do 16 years at the penitentiary.” In addition, the trial court asked Cunningham wheth er he understood the possible sentence that could be imposed as a result of his p lea; Cunningham responded,
“Yes.” Prior to taking Cunningham’s plea, the following co lloquy took place: THE COURT: . . . Now, have there been any other promises made to you other than what I have just ta lked about here to get you to enter this plea?
THE DEFENDANT: No. THE COURT: Has anybody at all told you that I woul d give you a certain sentence or treat you in a certa in way other than what’s been said here?
THE DEFENDANT: No. Despite this colloquy, the habeas court found that Cunningham was told by his attorneys that he would only have to serve one-half of his sentence plus one year of parole. Moreover, the habeas court acknowledged that it shared the understanding of the parties at the time of the ple a as to the application of mandatory parole to Cunningham’s sentence. Nevertheless, the habeas court also found that Cunn ingham did not rely on the advice that he would be released after serving half his sentence. It further found that he made his plea solely with the conside ration that he would enter the-9-

treatment program and avoid supervision by the Department of Corrections. The habeas court based this finding on statements made during the plea colloquy. Prior to the plea, the trial court asked Cunningham the reason for the plea hearing and Cunningham responded, “I don’t know, so that I can go to the [Closed Adolescent Treatment Center].” Then the trial court explained to Cunningham the nature and elements of the crime to which he was pl eading guilty and the right to trial he was foregoing in order to ensure that Cunn ingham understood the effect of his guilty plea. Cunningham responded that he u nderstood the explanations given to him by the trial court. On these bases, t he habeas court held that Cunningham’s guilty plea was voluntarily and knowin gly made. The Colorado Court of Appeals affirmed the trial co urt’s ruling in an unpublished order. Relying on the reasoning of Aue , 798 P.2d at 441, which held that the change from mandatory to discretionary par ole was foreseeable, the Court of Appeals held that this change did not itself evi scerate the guilty plea. People v. Cunningham , No. 90CA2065, slip op. at 3-4 (Colo. Ct. App. Jul y 2, 1992). The court held that even if Cunningham were improperly advised by counsel or the trial court, this had no effect on the voluntarines s of his plea. Id. at 4. The Colorado Supreme Court denied Cunningham’s petitionfor certiorari in an unpublished order.-10-

After having exhausted his state remedies, Cunningh am filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in t he United States District Court for the District of Colorado. The magistrate judge held a hearing and heard argument but appears not to have heard additional t estimony from witnesses. The magistrate reviewed the records created in the tria l and habeas courts and issued a Recommendation to deny the petition. Cunningham th en timely filed objections to the magistrate judge’s Recommendation. The dist rict court reviewed the record before it but apparently did not receive additional evidence. It then adopted the magistrate judge’s findings in the Recommendation a nd dismissed the petition. Cunningham timely appealed the district court’s Ord er of Dismissal. We exercise jurisdiction pursuant to 28 U.S.C. § 2253. In this appeal, Cunningham argues that the plea bar gain was not fair because he was induced to plead guilty by his false understanding of the application of mandatory parole. Because he has se rved longer than what he understood to be the twelve-year maximum period of incarceration, he contends that fundamental fairness dictates specific perform ance of the sentencing term of the plea bargain, as understood by all the parties. As a result, he claims he should be released from the custody of the Colorado Depart ment of Corrections. In the alternative, Cunningham argues that his guilty pleaand conviction should be vacated. We address these claims seriatim.-11-

II. SPECIFIC PERFORMANCE OF THE PLEA AGREEMENT Whether government conduct has violated a plea agre ement presents a question of law which we review de novo

. United States v. Robertson , 45 F.3d 1423, 1442 (10th Cir.), cert. denied, — U.S. —, 116 S. Ct. 133 (1995), and cert. denied sub nom. Graves v. United States , — U.S. —, 115 S. Ct. 2258 (1995) and Torres v. United States , — U.S. —, 115 S. Ct. 2259 (1995). “Where the government obtains a guilty plea predicated in any significant degree on a promise or agreement with the prosecuti ng attorney, such promise must be fulfilled to maintain the integrity of the plea.” United States v. Hand, 913 F.2d 854, 856 (10th Cir. 1990). Interpreting t he terms of a plea bargain involves a two-step process. The court must first examine the nature of the prosecutor’s promise. United States v. Pogue , 865 F.2d 226, 227 (10th Cir. 1989). Next, the court examines this promise based upon the defendant’s reasonable understanding upon entry of the guilty p lea. See Robertson , 45 F.3d at 1442. Cunningham has the burden of proving the und erlying facts establishing the breach by a preponderance of the evidence. Allen v. Hadden , 57 F.3d 1529, 1534 (10th Cir. 1995), cert. denied, — U.S. —, 116 S. Ct. 544 (1996). Cunningham maintains that he is entitled to specifi c performance of the terms of the plea bargain as understood by the part ies. Cunningham refers, of course, to the application of mandatory parole to h is sentence. In Lustgarden v.-12-

Gunter , 996 F.2d 552 (10th Cir.), cert. denied, 506 U.S. 1008 (1992), which also involved the issue of the Colorado State Parole Boa rd’s discretion to deny parole to sex offenders, we dealt with a related argument. The plea agreement itself did not state that mandatory parole would apply. This court then rejected the claim that promissory estoppel required the Parole Board to grant the petitioner parole because neither the statutory language nor the sent encing court promised mandatory parole. Lustgarden , 966 F.2d at 555; see also Mahn v. Gunter , 978 F.2d 599, 602 (10th Cir. 1992) (rejecting petitione r’s reliance argument because there was no evidence of a promise of mandatory par ole by the sentencing court). The court reasoned that even if the petitioner’s attorney had promised him mandatory parole, this promise did not bind the cou rt. Lustgarden , 966 F.2d at
554. Cunningham nevertheless argues that the understandi ng of the parties at the time of the plea should control the construction of the terms of the plea bargain. His claim fails because the application of mandatory parole to Cunningham’s sentence is neither an explicit nor an implicit part of the plea agreement. The undisputed fact is that mandatory parole was not a part of the plea offer;5 Although the parties do not dispute that both the p rosecutor and the trial

court understood mandatory parole to apply to Cunni ngham’s sentence at the time of his plea, Cunningham never alleges that either t old him it would apply. In fact, one of the undisputed facts is the testimony of the prosecutor that mandatory parole was not part of the plea offer. The trial c ourt never indicated on the record that Cunningham would only have to serve one-half o f the sentence imposed. Indeed, in explaining the possibility of a sixteen- year sentence, the trial court told him he was “going to do 16 years at the penitentiary,” not half of that. The court repeatedly told Cunningham of the possibility of a twenty four-year sentence. -13- Cunningham does not now allege to the contrary. 5 Thus his argument does not concern the construction of the plea agreement. Because there was no promise that was impliedly part of the understanding of the plea agreement and the plea agreement does n ot specify that mandatory parole would apply, the cases cited by Cunningham a re inapposite. See, e.g. , Santobello v. New York, 404 U.S. 257, 258-59, 262 (1971) (undisputed prom ise by the first prosecutor not to make a recommendatio n regarding sentence was violated by the second prosecutor); Allen , 57 F.3d at 1531-32 (understanding of the plea agreement expressed on the record by couns el and the court that dismissed counts would not be used to calculate the defendant’s eligibility for parole was violated when used by the parole board); Lucero v. Kerby , 7 F.3d 1520, 1521-22 (10th Cir. 1993) (concerning the unde rstanding of the term of incarceration contained in the plea agreement); United States v. Shorteeth , 887 F.2d 253, 254-55 (10th Cir. 1989) (involving the un derstanding of the term of the plea agreement that the Government would institute no prosecutions against the-14-

defendant based on cooperation testimony); accord Pogue , 865 F.2d at 227; United States v. Thomas , 580 F.2d 1036, 1037-38 (10th Cir. 1978) (promise made on the record by the court to the first codefendant , and acquiesced in by the prosecutor, not to sentence until all charges had b een brought was understood by the second codefendant to apply to her as well), cert. denied, 439 U.S. 1130 (1979); People v. Fisher , 657 P.2d 922, 924-25 (Colo. 1983) (en banc) (prom ise by the detective that videotaped testimony of the d efendant would not be used by the prosecutor in any criminal proceeding against h im). The understanding Cunningham argues should control concerns the length of the sentence he received, which is not part of t he plea agreement. 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. C unningham can point to no promise of mandatory parole that existed outside of the formal, written agreement; nor can he show that the parties intende d mandatory parole to be a part of the plea agreement. As this court held in Lustgarden , any statement by the petitioner’s attorney about the application of mand atory parole does not bind the court unless it is a part of the plea agreement. 9 66 F.2d at 555. Moreover, Lustgarden held the Parole Board’s prior misapplication of th e Colorado statute defining its discretion does not constitute a promi se which binds the court. Id.-15- III. CONSTITUTIONALITY OF THE GUILTY PLEA Cunningham also argues that he did not knowingly an d voluntarily enter his guilty plea because he was led to believe that mand atory parole would be a part of the agreement. He asserts that the reason he accep ted the plea was to take advantage of mandatory parole, which his counsel in formed him would apply. Cunningham argues that because the agreement did no t actually conform to his understanding and contain this term, he should be a ble to withdraw his plea. Whether a defendant entered a knowing and voluntaryguilty plea presents a question of law which this court reviews de novo

. Marshall v. Lonberger , 459 U.S. 422, 431 (1983); Martin v. Kaiser , 907 F.2d 931, 933 (10th Cir. 1990); Laycock v. New Mexico , 880 F.2d 1184, 1186 (10th Cir. 1988). To the ext ent that the question of whether the defendant knowingly and voluntarily made the plea depends on findings of fact made by the state courton habeas review, these findings, with specified exceptions, carry a presumption of correctness. 28 U.S.C. § 2254(d); Marshall , 459 U.S. at 431-32; Jones v. Cowley , 28 F.3d 1067, 1069 (10th Cir. 1994). On review, a federal court may set aside a state co urt guilty plea only for failure to satisfy due process. Miles v. Dorsey , 61 F.3d 1459, 1465 (10th Cir. 1995), cert. denied, — U.S. —, 116 S. Ct. 743 (1996). In order to comport with due process guarantees, a defendant must have voluntarily and intelligently-16-

entered a guilty plea. Boykin v. Alabama , 395 U.S. 238, 242 (1969). The plea must be knowing and the product of a deliberate, in telligent choice. Parke v. Raley , 506 U.S. 20, 28 (1992); United States v. Wright , 43 F.3d 491, 495 (10th Cir. 1994). Furthermore, the defendant must have “ a full understanding of what the plea connotes and of its consequences.” Boykin , 395 U.S. at 244; see also Miles , 61 F.3d at 1466. We will uphold a state court gu ilty plea if the circumstances demonstrate that the defendant unders tood the nature and consequences of the charges and the defendant volun tarily chose to plead guilty. Brady v. United States , 397 U.S. 742 passim (1970); Boykin , 395 U.S. at 242-44; Miles , 61 F.3d at 1466. Cunningham’s argument centers on his understanding of the parole terms resulting from his plea. He does not contend that his plea resulted from any form of coercion, material misrepresentation by the pros ecutor or the trial court, or an unfulfilled promise. See, e.g. , Laycock, 880 F.3d at 1186 (discussing factors contributing to involuntary pleas). Instead, Cunni ngham argues his lawyers advised him that he would serve only one-half of hi s sentence, that he relied on and believed this misunderstanding, and that both t he prosecutor and the trial court shared this same misunderstanding. These contentions bear on whether Cunningham knowingly entered his plea and this court will focus on the state of his understanding at the time of his plea as reflec ted in the record.-17-

An attorney’s erroneous sentence estimate or predic tion of parole does not render a plea unknowingly made. Laycock, 880 F.2d at 1186; Self v. Blackburn , 751 F.2d 789, 793 (5th Cir. 1985). A defendant’s s ubjective understanding that he will serve less than one-half of his sentence, i f it is not based upon any promise made by the defense attorney, the prosecuto r, or the court, will not undermine the constitutionality of the plea or rais e a question of whether the state breached its end of a plea bargain. Laycock, 880 F.2d at 1186; Bonvillain v. Blackburn , 780 F.2d 1248, 1252 (5th Cir.), cert. denied, 476 U.S. 1143 (1986); Hall v. Maggio , 697 F.2d 641, 643 (5th Cir. 1983) (holding the de fendant’s understanding that a life sentence was really only ten and one-half years, which he based upon “common knowledge,” was not a promise that could render the plea involuntarily entered). Closer to the issue here, in Lustgarden , this court considered a due process challenge to the Colorado Parole Board’s 1989 reint erpretation of the application of mandatory parole to sex offenders. 966 F.2d at 553. The petitioner in Lustgarden had pleaded guilty in Colorado state court to thre e counts of sexual assault on a child. Lustgarden v. Gunter , 779 F. Supp. 500, 501 (D. Colo. 1991), aff’d, 966 F.2d 552 (10th Cir.), cert. denied, 506 U.S. 1008 (1992). When he learned that mandatory parole would not apply to hi m, he filed a petition for a writ of habeas corpus alleging he was entitled to m andatory parole. Id. at 501-02.-18-

Following the result reached by the Colorado Suprem e Court in Aue , 798 P.2d at 441, this court held the 1989 reinterpretation of t he parole statute by the Parole Board was a foreseeable change which did not violat e due process guarantees. Lustgarden , 966 F.2d at 554. The issue raised by Cunningham, however, which focuses on his knowledge of the length of confineme nt he faced, is not squarely settled by either Laycock or Lustgarden

. Laycock establishes that a defendant’s understanding he wi ll serve less than his full sentence does not alone render his guilty plea constitutionally infirm. 880 F.2d at 1186. The defendant’s belief must be based upon some other additional factor, such as coercion or material misrepresentat ion by the prosecutor. Moreover, this understanding, from whatever its sou rce, must have affected the defendant’s decision with respect to the plea. That Cunningham’s attorneys advised him mandatory parole would apply to his sentence is not in dispute. The habeas court, however, found that Cunningham did no t rely on that advice when he accepted the plea. Cunningham urges this court to hold that two findin gs by the habeas court are not supported by the record: (1) he did not re ly on his counsel’s statements that he would serve only one-half of his sentence; and (2) that he entered his plea solely to avoid incarceration under the Department of Corrections. Under Laycock, Cunningham’s claim cannot stand unless his misund erstanding about the6 Cunningham more strenuously challenges the factual findings of the

federal district court and magistrate judge. It ap pears that these findings were made on the basis of the state record and that neit her the district court nor the magistrate took additional testimony from witnesses . This court has held that findings by a district court and magistrate based m erely upon their review of the state record are not fully entitled to the clearly erroneous standard of review. Archuleta v. Kerby , 864 F.2d 709, 711 n.2 (10th Cir. 1989); Castleberry v. Alford, -19- length of his possible incarceration resulted from some promise made by his counsel, the prosecutor, or the trial court or some other impermissible action. See Laycock, 880 F.2d at 1186. As a result, the first of the challenged findings is crucial. Federal review of a state court’s factual findings is of limited scope. Ball v. Ricketts , 779 F.2d 578, 579-80 (10th Cir. 1985), cert. denied sub nom. Riveland v. Ball , 479 U.S. 870 (1986). A federal court must acceptas true the state court’s determination of underlying questions of historical fact and the inferences drawn therefrom based upon testimony taken in that court unless one of the exceptions under 28 U.S.C. § 2254(d) applies. Sumner v. Mata , 449 U.S. 539, 547-50 (1981); Ball , 779 F.2d at 580; see also Thompson v. Keohane , No. 94-6615, slip op at 10-12 (U.S. Nov. 29, 1995) (holding that § 22 54(d) applies to basic, primary, or historical facts but that the “in custo dy” determination is a legal question outside the scope of § 2254(d)). At issue here is 28 U.S.C. § 2254(d)(8), which provides that the state court’s findings are entitled to a presumption of correctness unless they are not fairly supported bythe record. 6666 F.2d 1338, 1342 n.2 (10th Cir. 1981). These fi ndings are subject to this

court’s independent review of the record on these p oints. Archuleta , 864 F.2d at 711 n.2. Although the district court and magistrat e judge made additional findings beyond those of the habeas court, their fi ndings included the reiteration of the two habeas court findings listed above. Cun ningham’s claim will fail if these two findings are fairly supported by the reco rd and are not shown by convincing evidence to be erroneous,. As a consequ ence, we focus on these findings by the habeas court, which are entitled to the degree of deference accorded 28 U.S.C. § 2254(d). -20- Having closely reviewed the entire record, we concl ude it supports the habeas court’s finding that Cunningham did not relyon the advice of his counsel concerning his length of confinement. Although the parties do not dispute that Cunningham’s attorneys informed him mandatory parol e would apply to his sentence, Cunningham stated in open court during hi s plea colloquy that he was not relying on any promises or predictions of a pos sible sentence made to him prior to his plea. “Solemn declarations in open co urt carry a strong presumption of verity.” Blackledge v. Allison , 431 U.S. 63, 74 (1977). Given this evidence, and the absence of any of the factors present in Blackledge which question the truth of the petitioner’s declarations, the record supports the finding of the habeas

court. Furthermore, the habeas court’s finding that Cunnin gham pleaded guilty solely to enter the program at the treatment centerin turn additionally supports the conclusion that he pleaded without reliance on the promise of mandatory parole. That finding corresponds precisely with Cu nningham’s statement to the-21-

trial court during the plea colloquy. Moreover, Cu nningham’s argument that he accepted the plea agreement because of the applicat ion of mandatory parole is dubious. It does not really address the finding th at he accepted the plea solely to enter the treatment program. The application of ma ndatory parole would have caused Cunningham’s plea to provide no benefit to h im over going to trial. In this context, the habeas court’s finding that the p romise of the treatment program motivated Cunningham to accept the plea explains hi s motivation because the treatment program did represent a benefit of the pl ea bargain. Because the record supports the habeas court’s find ings, we cannot conclude that Cunningham relied on his attorney’s s tatements at the time of the plea that he would receive mandatory parole. Laycock indicates the defendant’s guilty plea may be constitutionally suspect when th e defendant’s attorney promised he would serve less than his actual senten ce. Laycock, 880 F.2d at 1186-87. The record here, however, supports the fi nding that Cunningham did not act on the basis of that advice and did not rel y on his counsel’s statements when he made his plea. We therefore cannot conclud e that Cunningham’s guilty plea is constitutionally infirm. We hold that Cunn ingham entered his guilty plea knowingly and intelligently and that it cannot now be vacated on those grounds.-22- IV. CONCLUSION-23-

Because the undisputed facts demonstrate that mandatory parole was not a part of the plea offer, Cunningham’s argument that the plea agreement should be construed to contain that term is unavailing. Cunn ingham’s specific performance argument thus fails. Moreover, the habeas court fo und that the trial court never told Cunningham that he would serve only one-half o f his sentence. It further found that Cunningham did not rely on any statement s made to him by his counsel at the time of his plea that he would only serve on e-half of his sentence. After a careful review of the record, this court is left wi th the conviction that these findings are supported by the record. As a result, we cannot conclude that Cunningham’s attorneys misinformed him of any mater ial consequences of his plea which caused him to accept the plea. Accordin gly, this court holds that Cunningham entered his plea knowingly and intellige ntly. For these reasons, the district court’s dismissal of Cunningham’s petitionfor a writ of habeas corpus is
AFFIRMED.