                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                    November 9, 2006
                      UNITED STATES CO URT O F APPEALS
                                                                   Elisabeth A. Shumaker
                                     TENTH CIRCUIT                     Clerk of Court



 R AU L V A RELA ,

          Petitioner - A ppellant,
 v.
                                                        No. 05-2343
 ERASM O BRAVO, W arden,                          (D.C. No. CIV-00-1754)
 Guadalupe County Correctional                           (D . N.M .)
 Facility; A TTO RN EY G EN ER AL
 FO R TH E STA TE O F N EW M EXICO,

          Respondents - Appellees.



                              OR DER AND JUDGM ENT *


Before HA RTZ, EBEL and T YM KOVICH, Circuit Judges.




      Petitioner-Appellant Raul Varela appeals the denial of his petition seeking

habeas relief, see 28 U.S.C. § 2254, from his New M exico conviction for cocaine




      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This O rder 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
trafficking, see N.M . Stat. § 30-31-20. 1 Varela asserts that his defense attorney

provided constitutionally ineffective representation when: counsel advised Varela

that if he pled guilty to cocaine trafficking, he would receive a sentence below the

basic nine-year sentence provided by statute, see N.M . Stat, § 31-18-15(A)(4)

(subsequently amended in 2005); Varela pled guilty based on counsel’s advice;

and the New M exico trial court, nonetheless, imposed a nine-year sentence.

Based on those allegations, Varela asserts that his guilty plea w as involuntary

because it was the result of his attorney’s ineffective representation. This court

granted Varela a certificate of appealability (“COA”) on this claim. 2 See 28

U.S.C. § 2253(c). Having jurisdiction to consider this appeal, then, under 28

U.S.C. §§ 1291 and 2253, we AFFIRM the denial of habeas relief.



      1
       The district court granted Varela’s motion to proceed in forma pauperis.
See 28 U.S.C. § 1915.
      2
       This court also granted Varela a COA on a second claim, alleging that his
defense attorney was ineffective for failing to object to his being sentenced by
state-court Judge M artin. Because Varela argued that another state judge would
have imposed a lighter sentence, this § 2254 claim challenged only the length of
Varela’s state sentence. Because Varela has fully served that sentence, he
concedes that this § 2254 claim is now moot. See Spencer v. Kemna, 523 U.S. 1,
3, 14-17 (1998). W e, therefore, do not address the merits of that claim.

        Varela’s claim asserting that his guilty plea resulted from his attorney’s
ineffective representation, on the other hand, challenges his state conviction
rather than the length of his sentence. Because Varela may continue to suffer
collateral consequences as a result of that conviction, that claim is not moot. See
id. at 8 (noting Supreme Court is willing to presume that a wrongful conviction
will continue to have collateral consequences); United States v. M eyers, 200 F.3d
715, 718 (10th Cir. 2000).

                                          2
      In order to assert this claim for § 2254 relief, Varela must first have

exhausted his state-court remedies by presenting this claim to the New M exico

state courts. See 28 U.S.C. § 2254(b)(1). Varela w ill have exhausted this claim

if he “first fairly presented the substance of his federal habeas claim to state

courts.” Hawkins v. M ullin, 291 F.3d 658, 668 (10th Cir. 2002). “Fair

presentation requires more than presenting all the facts necessary to support the

federal claim to the state court.” Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir.

2006) (quotation omitted). Varela, proceeding pro se, pursued a habeas petition

in state court, and unsuccessfully sought review of the trial court’s decision

denying him habeas relief through a petition for a writ of certiorari to the New

M exico Supreme Court. 3 Because he pursued that petition pro se, we will

liberally construe those pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21

(1972). Even so, “we will not rewrite a petition to include claims that were never

presented.” Parker v. Champion, 148 F.3d 1219, 1222 (10th Cir. 1998). In this

case, we cannot conclude that Varela included his current § 2254 claim in those

state habeas pleadings. 4



      3
        As part of his plea agreement, Varela waived his right to pursue a direct
appeal. He did, however, unsuccessfully assert, through counsel, a motion asking
the trial court to reconsider his sentence.
      4
        The district court did not address exhaustion, denying Varela habeas relief
instead after considering this claim’s merit. But this court is not bound by the
district court’s decision not to consider exhaustion. See M edlock v. W ard, 200
F.3d 1314, 1322 (10th Cir. 2000).

                                           3
      Despite the fact that Varela has not exhausted his § 2254 claim, this court

may still deny habeas relief after addressing the claim’s merits. See 28 U.S.C.

§ 2254(b)(2) (permitting federal court to deny habeas relief, “notwithstanding the

failure of the applicant to exhaust the remedies available in the courts of the

State”); see also Patton v. M ullin, 425 F.3d 788, 810 (10th Cir. 2005), cert.

denied, 126 S. Ct. 2327 (2006). In order to be entitled to habeas relief, Varela

must show both that 1) his attorney’s performance was deficient and 2) that

deficient performance prejudiced Varela’s defense. See Strickland v.

W ashington, 466 U .S. 668, 687 (1984). The determination of w hether defense

counsel’s performance is constitutionally ineffective is a mixed question of law

and fact that this court reviews de novo. 5 See id. at 698.

      W e will address first Strickland’s prejudice prong. See id. at 697. To

establish prejudice, Varela must show that there is a reasonable probability that,

absent counsel’s deficient performance, the result of the proceeding would have

been different. See id. at 695; see also United States v. Gray, 182 F.3d 762, 768

(10th Cir. 1999) (holding prisoner bears burden of proving counsel’s deficient

performance prejudiced him). In the context of a guilty plea, therefore, Varela



      5
       Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), this court usually applies a deferential standard of review to the state
court’s decision denying relief. See 28 U.S.C. § 2254(d). But in this case,
because we cannot conclude that Varela actually raised his ineffective-assistance
claim in the state courts, we do not apply that deferential standard. See M iller v.
Champion, 262 F.3d 1066, 1071 (10th Cir. 2001).

                                          4
must establish that, but for counsel’s deficient performance, Varela would not

have pled guilty but instead “would have insisted on going to trial.” United

States v. Taylor, 454 F.3d 1075, 1080 (10th Cir. 2006); see also United States v.

Harms, 371 F.3d 1208, 1211 (10th Cir. 2004). However, Varela’s “mere

allegation that he would have insisted on trial but for his trial counsel’s errors,

although necessary, is ultimately insufficient to entitle him to relief.” United

States v. Clingman, 288 F.3d 1183, 1186 (10th Cir. 2002). “R ather, we look to

the factual circumstances surrounding the plea to determine whether the petitioner

would have proceeded to trial.” M iller, 262 F.3d at 1072.

      After conducting an evidentiary hearing, the district court determined in

this case that Varela had not shown that he w as prejudiced by defense counsel’s

misrepresentation as to the length of V arela’s sentence because the district court

found, based upon Varela’s testimony, that defense counsel did not make that

representation until after Varela had already agreed to the plea agreement. W e

agree with the district court’s determination. See Taylor, 454 F.3d at 1082.

      Varela’s own testimony before the district court indicated that he agreed to

and signed the plea agreement before his attorney asserted that Varela w ould

receive a sentence of between three to five years, or even probation. 6 And

      6
       In his § 2254 petition, Varela alleged that his attorney told Varela he
would receive probation. But during the evidentiary hearing before the district
court, Varela instead testified somewhat inconsistently that his attorney assured
him he would receive two years’ probation, or five years’ probation, or three
                                                                       (continued...)

                                          5
Varela’s plea agreement specifically indicated that Varela was facing up to nine

years in prison. Cf. id. at 1080 (rejecting defendant’s assertion that, absent

defense counsel’s inaccurate prediction of the applicable sentencing range, he

would have elected to go to trial where, despite counsel’s inaccurate prediction,

the plea agreement advised the defendant of the maximum sentence he was

facing). In addition, Varela appears to concede that the Government’s evidence

against him was sufficient for the jury to convict him of at least possessing the

cocaine underlying his trafficking conviction. See M iller, 262 F.3d at 1075

(noting strength of Government’s case is relevant factor to consider when

determining whether defendant would have pled guilty, regardless of counsel’s

deficient performance). In light of this record, Varela has failed to meet his

burden of establishing that, but for defense counsel’s assertion that Varela w ould

serve less than nine years, he would have elected not to plead guilty and instead

to go to trial.

       For these reasons, then, we AFFIRM the district court’s decision denying




       6
        (...continued)
years’ imprisonment, or anywhere from three to five years’ imprisonment.

                                          6
Varela § 2254 relief from his New M exico conviction for cocaine trafficking.



                                      ENTERED FOR THE COURT



                                      David M . Ebel
                                      Circuit Judge




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