*

John W. Suthers, Attorney General for the State of Colorado, is substituted

as a respondent-appellee. See Fed. R. App. P. 43(c)(2).

** The Honorable Clarence A. Brimmer, District Judge, United States District

Court for the District of Wyoming, sitting by designation.

F I L E D

United States Court of Appeals

Tenth Circuit

MAR 8 2005

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PHILLIP KEVIN BUSH,

 Petitioner - Appellant,

 v.

GARY NEET, Warden; JOHN W.

SUTHERS, Attorney General of the

State of Colorado,*

 Respondents - Appellees.

 

No. 03-1481

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. No. 01-B-439-BNB)

Submitted on the briefs:

Phillip K. Bush, Pro Se.

Ken Salazar, Attorney General, John J. Fuerst III, Assistant Attorney General,

Appellate Division, Criminal Justice Section, Denver, Colorado for Respondents.

Before HARTZ, and BALDOCK, Circuit Judges, and BRIMMER,

** District

Judge.
1 After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

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HARTZ, Circuit Judge.

Applicant Phillip Kevin Bush, a Colorado state prisoner proceeding pro se,

filed an application under 28 U.S.C. § 2254 seeking relief from his state-court

convictions. The federal district court denied relief and declined to issue a

certificate of appealability (COA). See 28 U.S.C. § 2253(c)(1)(A) (requiring

COA to proceed on appeal). This court granted a COA on whether the plea

agreement entered into by Mr. Bush and the government is enforceable. We

affirm the district court’s denial of habeas relief. 1

Background

Mr. Bush entered guilty pleas in March 1984 to charges of sexual assault,

burglary, and aggravated robbery. He also entered guilty pleas to two

habitual-criminal counts based on his prior convictions. Other charges were

dismissed as part of the plea bargain. The parties stipulated that Mr. Bush would

receive a prison sentence of 25 to 30 years. The state trial court imposed a

sentence of 30 years, within the stipulated range. 

At the time, the state parole board interpreted the pertinent statutes to
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require mandatory release on parole after an inmate served about half his

sentence, considering the inmate’s good-time and earned-time credits, for crimes

like Mr. Bush’s committed between July 1, 1979, and July 1, 1985. Under this

interpretation Mr. Bush’s anticipated release date was in 1997. The parole board

later changed its view, however, reading the same statutory scheme to except sex

offenses from the requirements pertaining to mandatory parole. See generally

Cunningham v. Diesslin , 92 F.3d 1054, 1056-57 & nn.2-3 (10th Cir. 1996);

Lustgarden v. Gunter , 966 F.2d 552, 553 n.2 (10th Cir. 1992). In November 1994

the parole board informed Mr. Bush that under the new interpretation his

projected release date is in 2016, based on this sentence and the sentence for a

prior conviction. 

Mr. Bush’s state-court motion for post-conviction relief was denied by the

state trial and appellate courts. He then filed his § 2254 application. The federal

district court denied relief and this court granted a COA on the issue stated above. 

We deny a COA on the remaining issues. We need not address Respondents’

contention that the claim on which we have granted a COA is procedurally barred,

“because the case may be more easily and succinctly affirmed on the merits.” 

Romero v. Furlong , 215 F.3d 1107, 1111 (10th Cir. 2000). 
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Standards of Review

A state court’s adjudication on the merits must be upheld by a federal court

unless it (1) resulted in a decision that was contrary to or an unreasonable

application of clearly established federal law as determined by the Supreme

Court, or (2) resulted in a decision based on an unreasonable determination of the

facts in light of the evidence presented in state court. 28 U.S.C. § 2254(d). The

state court’s factual findings are presumed correct and must be credited unless the

applicant produces clear and convincing evidence to rebut the presumption. Id.

§ 2254(e)(1). 

A state-court decision is contrary to established federal law under

§ 2254(d)(1) “if the state court arrives at a conclusion opposite to that reached by

[the Supreme Court] on a question of law or if the state court decides a case

differently than [the Supreme Court] has on a set of materially indistinguishable

facts.” Williams v. Taylor , 529 U.S. 362, 412-13 (2000). A state-court decision

is an unreasonable application of federal law under § 2254(d)(1) “if the state

court identifies the correct governing legal principle from [the Supreme Court’s]

decisions but unreasonably applies that principle to the facts of the prisoner’s

case.” Id. at 413. What is “reasonable” is determined under an objective test

rather than by, say, determining whether a judge somewhere has so ruled. See id.

at 409-10. 
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Analysis

Mr. Bush asserts that he is entitled to relief because his guilty plea was

based on his understanding, confirmed by his attorney, that he would be eligible

for mandatory parole after serving half his sentence. We disagree. To begin

with, Mr. Bush cannot rely on any breach of promise. The plea agreement does

not contain any promise of mandatory parole. Nor did the state trial court

promise Mr. Bush that he would serve only half the sentence. In fact, before

accepting his guilty pleas the state trial court asked Mr. Bush if anyone had

promised him anything that was not contained in the written plea stipulation,

other than the representations made on the record that two other jurisdictions

would run any sentences they might impose concurrently with the sentence

imposed in this case. He responded that no other promises had been made. 

“Solemn declarations in open court carry a strong presumption of verity.” 

Blackledge v. Allison , 431 U.S. 63, 74 (1977). 

Even if Mr. Bush’s attorney had advised him that he would receive

mandatory parole, that advice would not bind the prosecution. Lustgarden , 966

F.2d at 555. And “the fact that the Parole Board had previously misapplied the

statute does not constitute [a] promise.” Id. 

Nor does Mr. Bush’s misunderstanding undermine the validity of his plea. 

“It is well settled that a voluntary and intelligent plea of guilty made by an
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accused person, who has been advised by competent counsel, may not be

collaterally attacked.” Mabry v. Johnson , 467 U.S. 504, 508 (1984). A guilty

plea, “perfectly valid when made,” will not be set aside due to later changes in the

law. McMann v. Richardson , 397 U.S. 759, 773-74 (1970). The defendant

“assumes the risk of ordinary error in either his or his attorney’s assessment of the

law and facts.” Id. at 774. See Bailey v. Cowley , 914 F.2d 1438, 1441 (10th Cir.

1990) (per curiam) (“[W]hen a defendant pleads guilty, he makes a decision based

on a calculated risk that the consequences that will flow from entering the guilty

plea will be more favorable than those that would flow from going to trial. This

inherent uncertainty does not make the plea involuntary.”). 

As we said in Cunningham ,“a defendant’s understanding he will serve less

than his full sentence does not alone render his guilty plea constitutionally infirm. 

The defendant’s belief must be based upon some other additional factor, such as

coercion or material misrepresentation by the prosecutor.” 92 F.3d at 1061

(citation omitted). In Cunningham , as is alleged by Mr. Bush in this case, the

defendant’s attorney told him that mandatory parole would apply to him. 

Cunningham might be distinguished because “the habeas court . . . found that

Cunningham did not rely on that advice when he accepted the plea,” whereas here

Mr. Bush asserts that he did rely on his attorney’s advice that mandatory parole

would apply to him. Nevertheless, this reliance is not enough for him to prevail. 
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“Although [a defendant] might have pleaded differently had later decided

cases then been the law, he is bound by his plea and his conviction unless he can

allege and prove serious derelictions on the part of counsel sufficient to show that

his plea was not, after all, a knowing and intelligent act.” McMann , 397 U.S. at

774. “When an involuntariness claim rests on the faulty legal decisions or

predictions of defense counsel, the plea will be deemed constitutionally

involuntary only when the attorney is held to have been constitutionally

ineffective.” Worthen v. Meachum , 842 F.2d 1179, 1184 (10th Cir. 1988),

overruled on other grounds by Coleman v. Thompson , 501 U.S. 722 (1991). 

Mr. Bush suggests no reason why his counsel was ineffective in relying on the

then-current practice of the parole board regarding awards of good time and

earned time. Accordingly, we hold that even if Mr. Bush relied on his attorney’s

mistaken (but not constitutionally defective) advice that mandatory parole would

apply to him, his guilty plea was not involuntary. 

Conclusion

The state court’s decision to deny Mr. Bush post-conviction relief was

objectively reasonable in light of Supreme Court precedent. We therefore

AFFIRM the district court’s order denying the § 2254 application. Mr. Bush has

filed a motion to proceed without prepayment of costs and fees. The motion is

GRANTED. Mr. Bush is reminded that he is obligated to continue 
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making partial payments until the entire fee has been paid.

The mandate shall issue forthwith.