                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JUL 30 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ALVARO PEREZ,

                Petitioner-Appellant,

    v.                                                   No. 96-1281
                                                     (D.C. No. 95-B-3213)
    ROBERT FURLONG, Warden of the                          (D. Colo.)
    Limon Correctional Facility; GALE
    NORTON, Attorney General of the
    State of Colorado,

                Respondents-Appellees.


                             ORDER AND JUDGMENT *


Before KELLY and HENRY, Circuit Judges, and DOWNES, ** District Judge.


         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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.


*
      This order and judgment is not binding precedent, except under the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.
**
      The Honorable William F. Downes, District Judge, United States District
Court for the District of Wyoming, sitting by designation.
      Petitioner Alvaro Perez appeals from the denial of habeas relief sought

under 28 U.S.C. § 2254. Adopting the recommendation 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 for dismissal of an associated

charge of second-degree kidnaping. He received a fifteen-year sentence, well

within the applicable range of twelve to twenty-four years. At the time, the state

parole board interpreted the pertinent statutes to require mandatory release,

ordinarily at mid-sentence (the parole date as determined by deducting vested

good time and earned time credits), for crimes like petitioner’s committed

between July 1, 1979 and July 1, 1985. However, the board later changed its

view, reading the same statutory scheme to except such sex offenses from

mandatory parole, and the state supreme court adopted the same interpretation in

Thiret v. Kautzky, 792 P.2d 801 (Colo. 1990).

      Thereafter, petitioner sought post-conviction relief on the ground that his

plea was involuntary, based as it was on the nullified 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,


                                         -2-
holding petitioner lacked a justifiable excuse for not objecting to the loss of his

mandatory-parole entitlement earlier, even though the 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)understanding regarding

mandatory parole, shared by all participants in his prosecution, constituted a

material part of his agreement to plead guilty, petitioner claimed his plea was

rendered involuntary when this “plea bargain” was breached. (He also couched

this claim in terms of a constitutionally inadequate understanding of the penal

consequences of his plea caused by a material misrepresentation by counsel.) In

addition, he asserted that the state courts’ application of § 16-5-402 violated due

process by barring his claim before it had accrued.

      The magistrate judge recommended denying the petition on both procedural

and substantive grounds. The judge held petitioner’s present claims had not been

advanced, in sufficiently federal-constitutional terms, in the state proceedings

and, therefore, were unexhausted. Applying the “anticipatory denial” rule of

Coleman v. Thompson, 501 U.S. 722, 735 n.* (1991), the judge concluded the

claims were now procedurally defaulted in state court and, finding no cause for

this default, held they were procedurally barred in federal habeas. See Gray v.


                                          -3-
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 constituted a “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 dismissed the petition.

      We agree petitioner’s plea challenge fails on the merits. Construed as

asserting the state breached his plea bargain, the claim lacks the necessary factual

premise--there is no evidence the state made any promises about mandatory

parole. “That all of the parties may have understood mandatory parole to apply at

the time of the plea does not make this a part of the 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 counsel’s

promise of mandatory parole would not bind government).

      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 the transcript excerpt attached to


                                          -4-
the petition suggests, he voiced any reliance on mandatory parole when entering

his plea; rather, the transcript reflects a different, and fully adequate, motivation

for the plea--the prosecution’s agreement to drop a second serious felony charge.

Cf. Cunningham, 92 F.3d at 1062. Finally, this case presents no “special

circumstances” suggesting petitioner might have placed particular emphasis on

mandatory parole in his decision whether to plead or 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 the time he likely
      would serve if sentenced pursuant to the proposed plea 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 properly denied on the merits.

This conclusion obviates any need to consider federal procedural-bar principles or

the constitutionality of § 16-5-402 as applied to petitioner.

      The judgment of the district court is AFFIRMED. Petitioner’s second

motion for appointment of counsel is denied. The mandate shall issue forthwith.



                                                      Entered for the Court



                                                      Robert H. Henry
                                                      Circuit Judge


                                          -5-
