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
____________________________
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This order and judgment is not binding precedent, except under the doctrines of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petitioner was paroled from this sentence, but parole was revoked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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