UNITED STATES COURT OF APPEALS TENTH CIRCUIT

WRIGHTY * W. VELARDE, Petitioner - Appellant,

v. LOU ARCHULETA, Warden, Fremont Correctional Facility ; THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents - Appellees. No. 15-1250 (D. Colorado) (D.C. No. 1:14- CV-02356-CMA)

ORDER DENYING CERTIFIC ATE OF APPEALABILITY

Before HARTZ , BALDOCK , and MORITZ , Circuit Judges.
Wrighty Velarde pleaded gu ilty to second-degree murd er and attempted sexual assault of his wife in Colorado state court on March 16, 2007. He seeks a certificate of appealability (COA) so he can appeal the deni al by the United States District Court for the District of Colorado of his applic ation for relief under 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (requiri ng COA to appeal denial of habeas relief to state prisoner). He contends that his plea and c onviction should be set aside because (1) his

* In the caption of his initial pleading in fe deral court, Mr. Velarde mistyped his first name as “Wighty” rather than “Wrighty.” The misspelling has appeared in numerous later captions. FILED United States Court of Appeals Tenth Circuit 

### January 29, 2016
Elisabeth A. Shumaker Clerk of Court2 counsel coerced him by threateni ng to withdraw if he did not accept the plea and (2) his counsel gave him inaccurate info rmation about when he would be eligible for parole. We deny a COA and dismiss the appeal. Mr. Velarde failed to exhaust either claim in state court and no reasonable jurist could rule that his state-court attorneys were ineffective in failing to preserve the claims. I. Background The state presentence report provided the following summary of Mr. Velarde’s offense: [O]fficers discovered the victim’s decease d body in a hotel r oom, with blood on the mattress, bloody bedding on the floor, and bloody bedding in the bathroom. It looked like there had been a struggle in the room. [M r. Velarde] thereafter told the police the following account of the victim’s death. He said that he and the victim, who was his wife, had been drinking heavily before enga ging in “real hard sex,” which included his penetrating her anally, with both his penis and his fingers. He further said that she began bleeding he avily, originally sa ying that she was bleeding from menstruation but later addi ng that he noticed blood coming from her anus. He said that she then lost c onsciousness, and he could not revive her with CPR. He said that he believed the vi ctim died from a heart attack. The doctor performing the autopsy concluded that the vic tim bled to death from injuries to her anus. People v. Velarde (Colo. App. No. 12CA2356, June 26, 2014) (unpublis hed). According to the state’s response to Mr. Velarde’s § 2254 application: [Mr. Velarde] admitted in a police statement that he (1) inserted his fingers into his wife’s anus with such force as to ca use her to bleed profusely, while she was so drunk as to be drifting in and out of consciousness; (2) re mained in the motel room while she bled to death (and for se veral hours thereafter); (3) dressed her body; and then (4) left the motel room, all without calling 911 or seeking any other kind of help for her. R. at 51. The state trial judge said:3 [A]fter the events in that room, and after [Mr. Velarde] realized that his wife—his wife, the love of his life—was dead, he pu t her clothes on, got in a car, and drove away, leaving his wife in that room; beds covered with blood, the sheets covered with blood, the room covered with blood. He didn’t call 9-1-1, didn’t stop some place to achieve assistance, di dn’t look out for the woman that he loved, he drove away. He was stopped in Colorado Springs by the police department down there, and when apprehended then he made me ntion of something occurring in that room. R. at 26. Mr. Velarde was initially char ged with first-degree felony murder and two counts of sexual assault. His plea agreement stipulat ed to a concurrent sentence of 33 years’ imprisonment for second-degree murder and si x years’ imprisonment for one count of attempted sexual assault. Before sentencing, Mr. Velarde moved to withdraw his plea, contending that he had been coerced into plead ing guilty by his trial counsel and that he had a defense that his wife ha d died of a heart attack. On the coercion issue, which Mr. Velarde is pursuing in this court, he testified at the hearing on his motion (1) that his unders tanding was that the fee arrangement with defense counsel did not cover go ing to trial and (2) that his lawyer advised him that he would no longer represent him if he di d not plead guilty. His father, however, testified that Mr. Velarde was not well informed about th e financial details of the representation. Contrary to his son’s testimony, he stat ed that the fee arrangement covered all proceedings including trial. Most importantly, Mr. Velarde was contradi cted by the experi enced attorney who represented him at his plea. Counsel testifie d as follows: He had participated in more4 than 160 jury trials as a cr iminal defense attorney, includi ng over 10 murder trials, and had handled extensive postconvic tion and appellate work, includ ing death-penalty cases. His fee for representing Mr. Velarde was $70, 000 to $80,000 for re presentation through trial, although there would be a partial refund if trial was a voided. The fee was paid by Mr. Velarde’s family over a period of months . He informed Mr. Velarde of the fee arrangement but never used it as a threat. One of the first things counsel did was interview the coroner fo r an hour or hour and a half. He learned from the coroner that the victim’s death was caused “by the defendant reaching inside the victim and causing enough damage that she bled to death.” R. at 217. He then consulted another coroner, and discussed the evidence with Mr. Velarde. He “did not see that this case could be defended on a claim that she died, but not because of Mr. Velarde’s conduct.” Id. at 235. After several weeks of extensive negotiations w ith prosecutors, he reached a plea deal of 33 years’ imprisonment. He told Mr. Velard e that this was the best deal they could negotiate, and if he went to trial he woul d very likely receive a life sentence. In addition, the prosecution read into th e record Mr. Velarde’s statement in the plea agreement that no one had coerced or threatened hi m to plead guilty. After this evidence defense counsel aban doned any claim of coercion by defense counsel. He at no time raised the claim now presented to us that Mr. Velarde was misinformed about the possibility of parole. The district court denied the motion to wi thdraw and sentenced Mr. Velarde to the stipulated sentence. Mr. Velarde did not f ile a direct appeal bu t sought postconviction5 relief by filing a motion under Colorado R. Crim. P. 35(c) alleging that trial counsel was ineffective for failing to (1) investigate th e heart-attack defense, (2) consider an intoxication defense, and (3) advi se him of his right to testify. He also alleged that trial counsel was ineffective for failing to appeal the denial of the motion to withdraw his plea. The court denied the motion except for the clai m that counsel was ineffective in failing to appeal the denial of the motion to withdraw. It permitted him to file an untimely appeal of the denial. Mr. Velarde th en appealed the denial of his motion to withdraw and the denial of his other Rule 35(c) claims. The Colorado Court of Appeals affirmed on all grounds. Mr. Velarde was represented by counsel throughout the proceedings. Mr. Velarde filed his pro se § 2254 applicati on on August 25, 2014, raising three claims of ineffective assist ance of counsel—failure to i nvestigate possible defenses, failure to provide proper a dvice regarding parole elig ibility, and failure to seek suppression of his statements to police—and one claim challenging the voluntariness of his plea. The district court denied relief, holding that the claim th at counsel failed to investigate possible defenses lacked mer it and that the remaining claims were procedurally barred for failure to raise them in the state postconvic tion proceedings. The district court further held that Mr. Velarde had failed to show cause and prejudice excusing his procedural default because his claims were not substantial. In this court Mr. Velarde reasserts (1) that his guilty plea was coerced because of his trial counsel’s threat to withdraw from th e case if he did not accept a guilty plea, and (2) that his trial counsel was ineffective for failing to correctly advise him before he6 pleaded guilty that he would be ineligible for parole until he had served 75% of his term of imprisonment. II. Discussion A COA will issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This st andard requires “a demonstration that . . . includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should ha ve been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (interna l quotation marks omitted). In other words, the applicant mu st show that the district cour t’s resolution of the constitutional claim was either “debatable or wrong.” Id. If the application was denied on procedural grounds, the applicant faces a double hurdle. Not only must th e applicant make a substantial showing of the denial of a constitu tional right, but he must also show “that jurists of reason would find it debatable whet her the district court was correct in its procedural ruling.” Id. “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Id

. One potential procedural bar is failur e to exhaust state-court remedies. See 28 U.S.C. § 2254(b)(1); Frost v. Pryor , 749 F.3d 1212, 1231 (10th Cir. 2014) (generally, “[a] federal court cannot grant a state pris oner's habeas petition un less the petitioner has7 exhausted his claims in state court.”). For a claim to be exhausted, the “state prisoner must give state courts one full opportunity to resolv e any constitutional issues by invoking one complete round of the State’s established appellate review process.” Id

. (internal quotation marks omitted). We treat a claim as exhausted, ho wever, if it is now too late to pursue relief in state court. See Gray v. Netherland , 518 U.S. 152, 161 (1996) (exhaustion requirement “is satisfied if it is clear that the habeas petitioner’s claims are now procedurally barred under state law.” (brackets and internal quotation marks omitted)); see also Coleman v. Thompson , 501 U.S. 722, 732 (1991) (“A habeas petitioner who has defaulted hi s federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer ‘available’ to him.”). But exhaustion in this manner is not much ad vantage to the § 2254 applicant. “[T]he procedural bar that gives rise to exhausti on provides an independent and adequate statelaw ground for the conviction and sentence, a nd thus prevents fede ral habeas corpus review of the defaulted claim, unless the pe titioner can demonstrate cause and prejudice for the default.” Gray , 518 U.S. at 162. “Cause excusing a procedural default must be some objective factor external to the habeas petitioner, not fairly attributable to him, that impeded his efforts to co mply with the procedur al rule in question.” Spears v. Mullin , 343 F.3d 1215, 1255 (10th Cir. 2003). And th e prejudice prong requires the applicant to show “actual prejudice as a result of th e alleged violation of federal law.” Fairchild v. Trammell , 784 F.3d 702, 719 (10th Cir. 2015) cert. denied sub nom. Fairchild v. Warrior , No. 15-6877, 2016 WL 100628 (U.S. Jan. 11, 2016). The most common “cause” is8 ineffective assistance of counsel for failure to preserve the claim in state court. See, e.g. , Martinez v. Ryan , 132 S. Ct. 1309, 1318 (2012). Counse l is ineffective if (1) “counsel’s representation fell below an objective standard of reasonableness” as measured “under prevailing professional norms,” Strickland v. Washington , 466 U.S. 668, 688 (1984), and (2) this deficient pe rformance prejudiced the defense, id. at 692. Mr. Velarde seeks a COA on two issues: (1 ) whether his plea was coerced by a threat to withdraw by trial counsel and (2) whether his trial counsel was ineffective in misinforming him about parole eligibility. Neither was e xhausted in Colorado state court, and now both are pro cedurally defaulted under Colo. R. Crim. P. 35(c)(3)(VII) (“The court shall deny any claim that could have been presente d in an appeal previously brought or postconviction pr oceeding previously brou ght except [in several circumstances not present here].”). The first issue was raised in Mr. Velarde’s motion to withdraw his plea. But it was abandoned (fo r good reason) after defense counsel heard testimony at the hearing. The second was never raised. We hold that no reasonable jurist could rule that counsel was ineffective for failing to exhaust either issue. We address them in turn. A. Coercion by threatening to withdraw Mr. Velarde claims that he was coerce d into pleading guilty by his attorney’s representations that he would w ithdraw if Mr. Velarde went to trial. At the hearing on his motion to withdraw, he testified that the fee arrangement with counsel did not provide for going to trial and that he though t he would lose his lawyer if he did not plead guilty. But9 that testimony was undermined by testimony by his father and his original trial counsel, which showed that if there wa s any pressure from trial counse l, it was only to explain to Mr. Velarde his dire situation, where his best choice was not an attractive one. See Fields v. Gibson , 277 F.3d 1203, 1214 (10th Cir. 2002) (“Advice—even strong urging by counsel does not invalidate a guilty pl ea.” (internal quotation marks omitted)). Further, Mr. Velarde told the Colorado tr ial court that accepted his pl ea that no one had pressured, coerced, or threatened him in some way to enter the guilty plea against his will. See United States v. Sanchez-Leon , 764 F.3d 1248, 1259 (10t h Cir. 2014) (“Although we review the validity of a plea de novo as a legal conclusion, solemn declarations made in open court carry a strong pres umption of verity.” (int ernal quotation marks omitted)). Only a desperate attorn ey would have pursued the claim after hearing the evidence at the hearing on the motion to with draw. Failure to exhaust was not deficient performance. B. Misinformation on Parole Eligibility Mr. Velarde argues that his trial counsel was ineffective for failing to advise him that he would be required to serve three-f ourths of his prison sentence under Colo. Rev. Stat. Ann. § 17-22.5-403(2.5) (West). He co ntends that he was to ld that he would be parole eligible in 10 to 12 y ears, although he w ill actually have to serve 25 years of his 33-year stipulated sentence. He asserts that “[b]ut for this misadvice [he] would not have entered [his] plea and instead would have insisted upon going to trial.” R. at 10. This claim was never raised in state court. But a fully competent attorn ey could easily have decided that it would not be worth raising, because Mr. Velarde’s present assertion that10 he would have gone to trial if he had known th at he could not be released for 25 years is not a credible one. See Hill v. Lockhart , 474 U.S. 52, 59 (1985) (To prove that counsel’s deficient performance prejudiced him in entering a guilty plea, “the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”). 1 First, the case against Mr. Velarde was very strong. Although Mr. Velarde contends he had a legitimate chance of acqu ittal based on the heart-attack defense, his highly experienced counsel—w ho spent one-and-one-half hour s interviewing the coroner who performed the autopsy and later inte rviewed another coroner about the matter— found no evidence to support this defense. Counsel negotiated long and hard and informed Mr. Velarde that he had obtained the best pl ea agreement possible. Second, Mr. Velarde’s own testimony at th e hearing on his motion to withdraw his plea undermines his present argument. He gave two versions of his thinking before his

1 For purposes of this disc ussion, we can assume with out deciding that misadvice regarding parole eligibility can c onstitute deficient performance under Strickland

. Although we recognize that several of our op inions have suggested that counsel is not ineffective for failing to advise a defendant on the collateral consequences of a guilty plea, see Varela v. Kaiser , 976 F.2d 1357, 1358 (10th Cir. 1992); Chrisman v. Mullins , 213 F. App'x 683, 687 (10th Cir. 2007 ), these cases were decided before Padilla v. Kentucky , 559 U.S. 356 (2010), which held that failure to advise a defendant about the deportation consequences of a guilty plea (certainly a “collateral” consequence) constituted deficient performance. Id . at 369. This court ha s not yet had occasion to determine whether the reasoning of Padilla applies to misadvice regarding parole eligibility, but several state courts have decided it does. See Angela J. Rollins, Collateral Consequence Considerations for Illinoi s Practitioners after Padilla v. Kentucky , 102 Ill. Bar J. 76, 79 (2014) (collecting cases on advice regarding parole eligibility post- Padilla ). Regardless, Mr. Velarde cannot show prejudice.11 plea, and both contradict his assertion that being informed of a longer parole-eligibility time would have influenced hi s decision. His initial versi on was that he originally pleaded guilty because he blamed himself for his wife’s death (and actually wanted the death penalty) but later decided to withdraw his plea because he felt God would forgive him. He testified on cross-examination: [W]hen I first have my first lawyer, I as ked him specifically, because I felt so bad that I lost the love of my life and everythi ng that was important to me, that I asked him if he would—if he could get the deat h penalty for me, and he told me that—he told me that—to go get another lawyer. And—and so I stopped talking to him about the death penalty and I . . . searched myself and I searched and I searched and I found out that—that God is a forgiv ing God and—and that ’s when I decided to—that I should take back my plea—a nd that I should stop blaming myself, and that I believe me and my wife were in it t ogether and that it was a tragic accident. R. at 181. Of course, if his motive to plead guilty was the desire to be sentenced harshly, the availability of parole was irrelevant. Later, however, Mr. Velarde gave a different version. He testified that he did not like the plea agreement and signe d it only because of his attorney’s coercion. During that testimony he said that the possiblility of paro le (which his attorney had mentioned) did not influence him because after “digging in to the law library, I found out that sexual offenders usually don’t get any respite from the st ate.” R. at 192. If he believed that he was not going to be released ea rly on parole, the availability of parole at an earlier date could have made no difference. In light of the strength of the case agains t Mr. Velarde, the advice of his attorney that he could not get a better deal, and the contradictory testimony about what motivated12 his plea, a reasonably co mpetent postconviction attorney could conclude that there was little, if any, chance of ultimate success in clai ming that he would no t have pleaded guilty had he been accurately inform ed about his eligibility for pa role. Failing to raise that claim in state court was not ineffective assi stance of counsel. Therefore, reasonable jurists could not debate the district court’s decision that Mr. Velarde’s procedural default was not excused. III. Conclusion We DENY Mr. Velarde’s application fo r a COA and DISMISS the appeal. Appellant’s motion to proceed in forma pauperis is DENIED. ENTERED FOR THE COURT

Harris L Hartz Circuit Judge