* This order and judgment is not binding precedent, e xcept under the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

** The Honorable William F. Downes, District Judge, Un ited States District Court for the District of Wyoming, sitting by desig nation. 

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

### JUL 30 1997 

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

ALVARO PEREZ,

Petitioner-Appellant,

v. ROBERT FURLONG, Warden of the Limon Correctional Facility; GALE NORTON, Attorney General of the State of Colorado,

Respondents-Appellees. No. 96-1281 (D.C. No. 95-B-3213) (D. Colo.)

ORDER AND JUDGMENT *
Before KELLY and HENRY, Circuit Judges, and DOWNES, ** District Judge.
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); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Petitioner Alvaro Perez appeals from the denial of habeas relief sought under 28 U.S.C. § 2254. Adopting the recommendatio n of the magistrate judge, the district court rejected petitioner’s claims as both meritless and procedurally barred. As explained below, we agree on the merits and therefore need not reach the procedural bar ruling. In 1986, petitioner pled guilty to first-degree sexual assault, with a mandatory sentence for violent crime, in exchange f or dismissal of an associated charge of second-degree kidnaping. He received a f ifteen-year sentence, well within the applicable range of twelve to twenty-fou r years. At the time, the state parole board interpreted the pertinent statutes to require mandatory release, ordinarily at mid-sentence (the parole date as dete rmined by deducting vested good time and earned time credits), for crimes like petitioner’s committed between July 1, 1979 and July 1, 1985. However, th e board later changed its view, reading the same statutory scheme to except s uch sex offenses from mandatory parole, and the state supreme court adopt ed the same interpretation in Thiret v. Kautzky , 792 P.2d 801 (Colo. 1990). Thereafter, petitioner sought post-conviction relie f on the ground that his plea was involuntary, based as it was on the nullif ied premise that release would be mandatory at mid-sentence. The state trial and appellate court rejected the claim as barred by the three-year limitation period in Colo. Rev. Stat. § 16-5-402,-3-

holding petitioner lacked a justifiable excuse for not objecting to the loss of his mandatory-parole entitlement earlier, even though t he entitlement was then still recognized by the board. The supreme court denied certiorari. On rehearing, petitioner allegedly added the unsuccessful argument that, by barring claims for as-yet unaccrued grievances, the limitation statute was unconstitutional. This proceeding followed. Alleging that the (mis)u nderstanding regarding mandatory parole, shared by all participants in his prosecution, constituted a material part of his agreement to plead guilty, pet itioner claimed his plea was rendered involuntary when this “plea bargain” was b reached. (He also couched this claim in terms of a constitutionally inadequat e understanding of the penal consequences of his plea caused by a material misre presentation by counsel.) In addition, he asserted that the state courts’ applic ation of § 16-5-402 violated due process by barring his claim before it had accrued. The magistrate judge recommended denying the petiti on on both procedural and substantive grounds. The judge held petitioner’ s present claims had not been advanced, in sufficiently federal-constitutional te rms, in the state proceedings and, therefore, were unexhausted. Applying the “an ticipatory denial” rule of Coleman v. Thompson , 501 U.S. 722, 735 n.* (1991), the judge concludedthe claims were now procedurally defaulted in state cou rt and, finding no cause for this default, held they were procedurally barred in federal habeas. See Gray v.-4-

Netherland , 116 S. Ct. 2074, 2080 (1996). On the merits, the judge held that petitioner’s parole misunderstanding did not warrant relief under Hill v. Lockhart , 474 U.S. 52 (1985), and that § 16-5-402 constituteda “reasonable” limitation on the assertion of federal rights permitted under Francis v. Henderson , 425 U.S. 536 (1976), and Michel v. Louisiana , 350 U.S. 91 (1955). The district court approved the magistrate judge’s recommendation, and dismisse d the petition. We agree petitioner’s plea challenge fails on the m erits. Construed as asserting the state breached his plea bargain, the claim lacks the necessary factual premise--there is no evidence the state made any pr omises about mandatory parole. “That all of the parties may have understo od mandatory parole to apply at the time of the plea does not make this a part of t he plea agreement.” Cunningham v. Diesslin , 92 F.3d 1054, 1060 (10th Cir. 1996); see also Lustgarden v. Gunter , 966 F.2d 552, 555 (10th Cir. 1992) (defense couns el’s promise of mandatory parole would not bind governme nt). Construed as asserting counsel misrepresented, and petitioner consequently misunderstood, the availability of mandatory parole , the claim lacks the requisite showing of reliance or prejudice. Petitioner “did not allege in his habeas petition that, had counsel correctly [anticipated the change in parole availability] . . ., he would have pleaded not guilty and insisted on going to trial.” Hill , 474 U.S. at 60. Further, he has not alleged, and nothing in th e transcript excerpt attached to-5-

the petition suggests, he voiced any reliance on ma ndatory parole when entering his plea; rather, the transcript reflects a differe nt, and fully adequate, motivation for the plea--the prosecution’s agreement to drop asecond serious felony charge. Cf. Cunningham , 92 F.3d at 1062. Finally, this case presents no “special circumstances” suggesting petitioner might have pla ced particular emphasis on mandatory parole in his decision whether to plead o r go to trial: Indeed, petitioner’s mistaken belief that he would become eligible for [mandatory] parole after serving one-[half] of his sentence would seem to have affected not only his calculation of t he time he likely would serve if sentenced pursuant to the proposed p lea agreement, but also [and equally] his calculation of the time he likely would serve if he went to trial and were convicted. Hill , 474 U.S. at 60. Under the circumstances, habeas relief was properlydenied on the merits. This conclusion obviates any need to consider feder al procedural-bar principles or the constitutionality of § 16-5-402 as applied to p etitioner. The judgment of the district court is AFFIRMED. Pe titioner’s second motion for appointment of counsel is denied. The m andate shall issue forthwith.

Entered for the Court

Robert H. Henry Circuit Judge