* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### DEC 5 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

ANTONIO HERNANDEZ RODRIGUEZ,

Petitioner-Appellant,

v. RICHARD SOARES, Warden, Limon Correctional Facility; ATTORNEY GENERAL OF THE STATE OF KANSAS, Respondents-Appellees. No. 01-3081 (D.C. No. 97-CV-3499-DES)

(D. Kan.)

ORDER AND JUDGMENT *

Before HENRY , ANDERSON , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.-2-

Petitioner Antonio Hernandez Rodriguez filed a habe as petition pursuant to
28 U.S.C. § 2254 in which he alleged his guilty plea was not knowin g and voluntary and, therefore, “void” because the state trial court had misinformed him of the consequence of entering the plea. Specifica lly, he argues that although the state district court assured him he could raise his defense related to his lack of a speedy trial on appeal, the Kansas Supreme Court re fused to hear such appeal. The federal district court denied the petition and granted him a certificate of appealability, see 28 U.S.C. § 2253(c)(1)(A), (B), thus permitting hi m to proceed on appeal. We determine that, although the state t rial court erred in representing to petitioner that he could directly appeal the iss ue of whether his speedy trial rights were violated despite entering a guilty plea , that error was harmless, in light of the fact that the Kansas Supreme Court eve ntually did consider the speedy trial arguments. We affirm the district court’s de cision.

I. Background In 1990, petitioner pled guilty in Kansas state court to one count of aggravated robbery. He was sentenced to forty-five years to life as an habitual criminal. The Kansas sentence was imposed to be se rved consecutively to sentences previously assessed in Colorado and Texas . Before entering his plea, petitioner informed the court that he wished to app eal the issue of whether his-3-

speedy trial rights under the Interstate Agreement on Detainers Act had been violated. The court assured him that, as the speedy trial issue went to the question of whether the court had jurisdiction to accept his plea, it would not be waived by the court’s acceptance of the plea. The Kansas Supreme Court, however, held that petiti oner had waived the speedy trial issue by entering a guilty plea becaus e the issue was not jurisdictional. The court advised petitioner he co uld have the issue heard by moving to have his guilty plea vacated. Petitionerfiled a motion to vacate his guilty plea. The trial court denied the motion on the ground that, as he was not asserting his innocence, petitioner could not withd raw his plea. On appeal the Kansas Supreme Court affirmed the trial court’s dec ision. The court also reached the merits of petitioner’s speedy trial claim and d etermined it was without merit. Petitioner then brought this action in federal district court. The district court denied relief, holding that petitioner had fa iled to meet the statutory requirements which would entitle him to habeas reli ef. On appeal, petitioner reiterates his contention that his guilty plea was invalid because the state court misinformed him about the material consequences of his plea. He argues that the courts reviewing his claim have erroneously appliedthe “hindsight harmless error test” in order to determine that his claim had no m erit. Petitioner’s Br. at 8.-4-

II. Analysis Because this petition is governed by the provisions of AEDPA, our review hinges on the state courts’ treatments of petitione r’s claim. Since the Kansas Supreme Court adjudicated the claim on the merits, petitioner will be entitled to federal habeas relie f only if he can establish that the state court decision was contrary to, or involved an unreasonable application of, clearly established Fe deral law, as determined by the Supreme Court of the United State s or was based on an unreasonable determination of the facts in li ght of the evidence presented in the State court proceeding. Toles v. Gibson , 269 F.3d 1167, 1172 (10th Cir. 2001) (quotations and citation omitted). Further, we presume that the state court ’s determinations of historical fact are correct. 28 U.S.C. § 2254(e)(1). A guilty plea must “represent[ ] a voluntary and intelligent choice among the alternative courses of action open to the defendant.” North Carolina v. Alford , 400 U.S. 25, 31 (1970). Whether a guilty plea w as knowing and voluntary is a question of federal law, Marshall v. Lonberger , 459 U.S. 422, 431 (1983), which we review de novo, Laycock v. New Mexico , 880 F.2d 1184, 1186 (10th Cir. 1989). A plea may be involuntary either because the accuse d does not understand the nature of the constitutional protect ions that he is waiving or because he has such an incomplete unders tanding of the charge that his plea cannot stand as an intelligentadmission of guilt. Without adequate notice of the nature of the charge against him, or proof that he in fact understood the charge, the pl ea cannot be voluntary in this latter sense.-5-

Henderson v. Morgan , 426 U.S. 637, 645 n.13 (1976) (citations omitted). Although the state trial court’s assurance to petit ioner that he could raise the speedy trial issue on direct appeal resulted in petitioner not knowing the true consequence of his plea, that error was harmless. See, e.g. , Chapman v. California , 386 U.S. 18, 22 (1967) (concluding that some cons titutional errors may be “so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requi ring the automatic reversal of the conviction”); see also Brecht v. Abrahamson , 507 U.S. 619, 634 (1993) (federal habeas relief will be granted to “[t]hose few who are . . . persons whom society has grievously wronged and for whom belatedliberation is little enough compensation”) (quotations omitted). The Kansas Supreme Court did address petitioner’s c laim and found it to be without merit. Thus, petitioner actually received review he desired when he decided to enter the plea. That the review occurre d in a later proceeding than anticipated, does not alter the fact that petitione r received all the review he was entitled to in the state courts. In reviewing petitioner’s claim on the merits, we c annot say that the Kansas Supreme Court’s decision was contrary to, or involv ed an unreasonable application of, clearly established federal law or was based on an unreasonable-6-

determination of the facts. Further, petitioner do es not argue on appeal that the court erroneously decided that his speedy trial rig hts had not been violated.

III. Conclusion. Relief under § 2254(a) can be granted only if the s tate court’s determination “was contrary to, or involved an unre asonable application of, clearly established Federal law, as determined by t he Supreme Court of the United States; or . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedin g.” 28 U.S.C. 2254(d). Even though petitioner was misinformed of his appeal rig hts, the speedy trial claim was ultimately heard by the Kansas Supreme Court. Thus , no error cognizable on federal habeas review occurred. The judgment of the United States District Court fo r the District of Kansas is AFFIRMED.

Entered for the Court

Robert H. Henry Circuit Judge