F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 26, 2005
TENTH CIRCUIT PATRICK FISHER
Clerk
GLEN WILLIAMS,
Petitioner - Appellant,
v. No. 04-1203
(D. Colorado)
AL ESTEP, Warden, L.C.F.; (D.Ct. No. 04-Z-306)
ATTORNEY GENERAL OF THE
STATE OF COLORADO,
Respondents - Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY
AND IN FORMA PAUPERIS
AND DISMISSING APPEAL
Before SEYMOUR, LUCERO, and O’BRIEN, Circuit Judges.
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. 34.1.9(G). The case is
therefore ordered submitted without oral argument.
Glen Williams applies pro se 1 for a certificate of appealability (COA) from
1
We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
the district court's denial of his 28 U.S.C. § 2254 petition for writ of habeas
corpus and moves to proceed in forma pauperis (ifp) on appeal. The district court
denied Williams’ request for a COA and motion to proceed ifp on appeal. There
being no basis for an appeal, we too deny Williams’ application for a COA and
motion to proceed ifp.
I. Background
Williams, while on parole for another felony conviction (first conviction),
pled guilty to second degree burglary in Colorado state court in 1997. As a result
of the burglary conviction, Williams’ parole was revoked and he was returned to
prison to serve the remainder of his sentence on his first conviction. Thereafter,
Williams was sentenced pursuant to a plea agreement to ten years community
confinement for the burglary; this sentence was ordered to run consecutive to the
sentence he was serving on his first conviction. In 1999, Williams was again
placed on parole for his first conviction. At the same time, Williams began
serving his ten-year community confinement sentence.
In 2001, Williams absconded from community confinement. As a result,
his community corrections sentence was revoked and he was resentenced to ten
years imprisonment and five years of mandatory parole. Additionally, Williams’
parole on his first conviction was revoked. Williams was returned to prison to
serve the remainder of his sentence on his first conviction followed by the ten-
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year prison and five-year mandatory parole terms for the burglary conviction.
In September 2001, Williams filed a post-conviction relief motion in state
court pursuant to Rule 35 of the Colorado Rules of Criminal Procedure. In it he
claimed (1) he was not advised at the time of his guilty plea to burglary that he
could be sentenced to a ten-year prison term and a five-year mandatory parole
period if his community corrections sentence was revoked, and (2) the trial court
was required to impose the mandatory parole component of his burglary sentence
concurrently with, not consecutive to, the revoked parole term he was serving on
his first conviction. The motion was denied. Williams appealed, reasserting that
the state court erred in not advising him at the time of his plea of the
consequences of violating his community corrections sentence and arguing that
the imposition of a five-year mandatory parole term required him to serve more
than one period of mandatory parole in violation of C OLO . R EV . S TAT . § 18-1.3-
401(1)(a)(V)(E). 2 The Colorado Court of Appeals affirmed the district court on
September 18, 2003, and the Colorado Supreme Court denied certiorari review on
January 20, 2004.
2
Section 18-1.3-401(1)(a)(V)(E) provides:
If an offender is sentenced consecutively for the commission of two or more
felony offenses . . ., the mandatory period of parole for such offender shall be the
mandatory period of parole established for the highest class felony of which such
offender has been convicted.
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On February 19, 2004, Williams filed a habeas petition pursuant to 28
U.S.C. § 2254 in the United States District Court for the District of Colorado.
Pursuant to the magistrate judge’s order, Williams filed an amended petition on
March 26, 2004. In his amended petition, Williams claimed (1) violations of
equal protection and the rule of lenity based on the imposition of the mandatory
parole period and (2) denial of due process due to the state court’s failure to
advise him at the time of his plea of the consequences of violating the terms of
his ten-year community confinement sentence. Although acknowledging that
Williams had failed to exhaust his state court remedies for his equal protection
and rule of lenity claims, 3 the district court nevertheless addressed each of
Williams’ claims but denied relief. 4
II. Discussion
Unless we issue a COA, Williams may not appeal the dismissal of his §
2254 petition. 28 U.S.C. § 2253(c)(1)(A). “[Section] 2253(c) permits the
issuance of a COA only where a petitioner has made a ‘substantial showing of the
denial of a constitutional right.’” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
3
Williams did not raise his equal protection and rule of lenity claims in state court
until his reply brief before the Colorado Court of Appeals.
4
Proceeding to the merits, despite Williams’ failure to exhaust, was permissible.
See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied
on the merits, notwithstanding the failure of the applicant to exhaust the remedies
available in the courts of the State.”).
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(quoting § 2253(c)(2)). To make the requisite showing, a petitioner must
demonstrate “that reasonable jurists could debate whether . . . the petition should
have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Id. (quotations omitted).
With regards to his due process claim, which was adjudicated on the merits by the
state court, Williams’ request for a COA must be assessed under the deferential
standard required by 28 U.S.C. § 2254(d)(1), specifically, “[r]elief may not be
granted unless the state court adjudication resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” Tennard v. Dretke, –-
U.S. –-, 124 S.Ct. 2562, 2569 (2004) (quotations omitted). See also Dockins v.
Hines, 374 F.3d 935, 938 (10th Cir. 2004) (holding“AEDPA's deferential
treatment of state court decisions must be incorporated into our consideration of a
habeas petitioner's request for COA.”).
With these principles in mind, we have carefully reviewed the record and
the district court’s order. We agree with the district court that Williams has not
made a substantial showing of the denial of a constitutional right.
In his request for a COA, Williams alleges he is being forced to serve two
periods of mandatory parole merely because he was on parole at the time he
committed his escape offense. He alleges that had he committed an offense while
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incarcerated, rather than while on parole, he would have only received one
mandatory parole period. Williams claims this differential treatment violates his
equal protection rights. Williams, however, was not incarcerated at the time he
escaped. Therefore, as the district court concluded, he is not similarly situated to
those who commit crimes while incarcerated and equal protection is not
implicated. See Plyler v. Doe, 457 U.S. 202, 216 (1982) (“The Equal Protection
Clause directs that all persons similarly circumstanced shall be treated alike.”)
(quotations omitted). Additionally, pursuant to People v. Luther, the revocation
of Williams’ parole from his first conviction is not considered a sentence carrying
with it a mandatory period of parole nor is it considered mandatory parole. 5 58
P.3d 1013, 1016-17 (Colo. 2002). Thus, Williams is not serving two mandatory
parole periods; rather, he is serving a parole revocation (a penalty for violating
the parole on his first conviction), a ten-year sentence for his burglary conviction
and one mandatory term of parole. Id. at 1017.
Williams also contends the state court’s failure to advise him of all of the
5
It is obvious from Williams’ opening brief that he disagrees with the Colorado
Supreme Court’s decision in Luther, referring to its interpretation of COLO. REV. STAT. §
18-1.3-401(1)(a)(V)(E) as “ridiculous.” (Appellant’s Opening Br. at 9.) However, “state
courts are the ultimate expositors of state law and [] we are bound by their constructions
except in extreme circumstances . . . .” Mullaney v. Wilbur, 421 U.S. 684, 691 (1975)
(citations omitted). Although a state court’s retroactive interpretation of state law may
deprive a defendant of due process if it is an unforeseeable one, Hawkins v. Mullin, 291
F.3d 658, 663 (10th Cir. 2002), we conclude the Colorado Supreme Court’s interpretation
of state law in Luther was foreseeable and no due process violation occurred.
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consequences of his plea violated his due process rights. The Colorado Court of
Appeals rejected this claim, concluding that the state court’s advisement at the
time of Williams’ guilty plea that he could be sentenced to between eight and
twenty-four years in prison “and five years of parole thereafter” was sufficient to
inform him of the possible parole consequences of his plea. It further determined
that under Colorado law, the court was not required to advise him of the collateral
consequences of his plea, including the possibility that if he violated the terms of
his community confinement sentence it could be revoked and he could be re-
sentenced to a term of imprisonment with an attendant mandatory parole period.
The district court concluded similarly under federal law. We agree.
In order for a guilty plea to satisfy due process, it must be knowingly and
voluntarily made which requires “‘a full understanding of what the plea connotes
and of its consequences.’” United States v. Hurlich, 293 F.3d 1223, 1230 (10th
Cir. 2002) (quoting Boykin v. Alabama, 395 U.S. 238, 244 (1969)). “The
defendant need not understand every collateral consequence of the plea, but need
only understand its direct consequences.” Id. See also Varela v. Kaiser, 976 F.2d
1357, 1358 (10th Cir. 1992) (“Actual knowledge of the consequences that are
collateral to the guilty plea is not a prerequisite to the entry of a knowing and
intelligent plea.”). We conclude the state court was not required to notify
Williams at the time of his plea of the collateral consequences he faced should he
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violate the terms of his community confinement sentence. C.f. Varela, 976 F.2d
at 1358 (deportation is a collateral consequence of a guilty plea); Harris v. Allen,
929 F.2d 560, 562 (10th Cir. 1991) (possibility of civil forfeiture is a collateral
consequence of guilty plea). Moreover, the state court advised Williams that he
could be sentenced up to twenty-four years imprisonment; the actual sentence
imposed, ten years imprisonment plus a five year term of parole, was less than the
maximum he was advised he could receive. No due process violation occurred. 6
Lastly, Williams claims the district court erred in dismissing his petition
sua sponte without requiring an answer from the State. Because Williams’ claims
were without merit, we find no error.
III. Conclusion
We DENY Williams’ application for COA and his request to proceed ifp.
He must pay the filing fee in full. The appeal is DISMISSED.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
6
Williams does not re-assert his rule of lenity argument on appeal.
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