Barnes v. Henderson

UNITED STATES COURT OF APPEALS
Filed 3/19/96 FOR THE TENTH CIRCUIT

GORDON KEVIN BARNES, )
)
Petitioner-Appellant, )
) No. 95-1490
v. ) (D.C. No. 95-K-892)
) (D. Colorado)
RANDY HENDERSON; ATTORNEY )
OF THE STATE OF COLORADO, )
)
Respondents-Appellees. )

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ORDER AND JUDGMENT1

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Before PORFILIO, MCKAY, and KELLY, Circuit Judges.

_____________________________

Because neither party has requested oral argument, we

will consider this case on the briefs. The facts are well

known to both sides and will not be set forth here in detail.

1
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
 This is an appeal from the denial of a petition for a writ of

habeas corpus under 28 U.S.C. § 2254. Petitioner contends the

district court erred by not granting him relief from a state

conviction upon a guilty plea entered in 1977. Petitioner claims

the plea was involuntary because the state court improperly advised

him of the places in which he could be incarcerated. We affirm.

Petitioner was originally sentenced under the Colorado Sex

Offender Act which provides for a sentence to an indefinite term

of treatment and incarceration until the offender is no longer a

threat to harm members of the public. Petitioner complains the

state court did not advise him that he could be imprisoned in the

state penitentiary as well as the state hospital; therefore, his

plea was involuntary. The issue has significance because

petitioner was paroled from this sentence, but parole was revoked

for commission of similar offenses, the sentences of which are

running concurrently with the indeterminant life sentence he

received under the Sex Offender Act.

The United States Magistrate Judge considered the issues,

reviewed the state record, and concluded there was no factual

support for the petitioner’s contention. Accordingly, the

magistrate recommended denial of the petition. The district court

adopted the magistrate’s findings and accepted the recommendation.

Upon dismissal of the petition, this appeal ensued.

We need only examine the state record to find a basis for

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agreement with the district court’s disposition. Upon doing so, we

find two facts are clear. First, queried by the state judge upon

arraignment, petitioner stated no one had made him any promises

regarding his plea other than “what has been stated by the District

Attorney.” Second, again in response to the court’s questioning,

petitioner stated he understood the sentence under the Sex Offender

Act could “require [his] curtailment or type of imprisonment for

the rest of your natural life.” (emphasis added).

Although there are many answers to the issue raised, the

absence of supportive facts leaves petitioner without an argument

for reversal. Petitioner’s statement to the state court that no

promises other than those of record belies his present contention

that he was promised he would not be held in the penitentiary.

There was no such promise made or inferred of record in the

arraignment proceeding. Second, although the state judge did not

tell petitioner he could spend time in the state penitentiary

specifically, he did warn petitioner he could be imprisoned.

Petitioner also understood the possibility he could be confined in

an institution other than the hospital and that the alternative

place could be a penal facility. His latter day contention that he

was unaware that the penal facility was the Colorado State

Penitentiary simply rings hollow.

The responses petitioner made at the time of his arraignment

“constitute a formidable barrier in any subsequent collateral

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

the answers given by petitioner in response to the questions we

have noted, we must presume that he was properly instructed on the

consequences of his plea and that the plea was voluntary. Worthen

v. Meachum, 842 F.2d 1179, 1183 (10th Cir. 1988). Moreover, the

statements made at arraignment completely refute the contentions he

now asserts. Cf. Hedman v. United States, 527 F.2d 20, 22 (10th

Cir. 1975).

AFFIRMED.

Entered for the Court

John C. Porfilio
Circuit Judge

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