                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                           JUL 31 2001
                                  TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                Clerk

 ARMANDO VALENTINO,

               Petitioner-Appellant,                    No. 01-1038
          v.                                                (D. Colo.)
 CHARLES RAY; KEN SALAZAR,                         (D.C. No. 00-D-1310)
 Attorney General of the State of
 Colorado,

               Respondents-Appellees.


                            ORDER AND JUDGMENT          *




Before HENRY , BRISCOE , and MURPHY , 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(G). 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        This order and judgment is not binding precedent, except under the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.
      Armando Valentino, a state prisoner proceeding pro se, pleaded guilty to

one count of sexual assault of a child by one in a position of trust, a violation of

Colorado state law. Subsequently, he filed a petition for a writ of habeas corpus

in federal court pursuant to 28 U.S.C. § 2254. The district court denied his

petition and then denied his application for a certificate of appealability. Mr.

Valentino now appeals. For the reasons stated below, we deny Mr. Valentino’s

application for a certificate of appealability and dismiss the appeal.



                                           I.

      Pursuant to the plea agreement between Mr. Valentino and the prosecution,

the trial court deferred judgment and sentence in the case for a period of two

years. If Mr. Valentino complied with certain conditions within that two-year

period, then the guilty plea would be withdrawn and the case dismissed. During

the plea proceedings, however, the trial court advised Mr. Valentino that the

normal sentencing range for his offense was “two to eight years. If there were

aggravating factors, the eight years could be doubled up to sixteen years. [In

addition,] [a]ny sentence for a Class 4 felony can involve three years of parole . .

. .” Rec. doc. 11, at 11 (respondents’ answer to show cause order) (quoting

providency hearing).




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      Several months later, a probation officer filed a revocation complaint

against Mr. Valentino, claiming that he had not complied with the conditions of

deferment. Ultimately, that complaint was withdrawn but soon thereafter the

probation officer filed a second complaint. Following the filing of this complaint,

Mr. Valentino was advised in writing and in court that he could be subject to

three years of mandatory parole in addition to any prison sentence.

      Eventually, an evidentiary hearing was held, after which the trial court

determined that Mr. Valentino had in fact failed to comply with the conditions of

deferment. The trial court thereby revoked the deferment, entered judgment

against Mr. Valentino, and sentenced him to two years of imprisonment plus three

years of mandatory parole. Unfortunately, the trial court’s assessment of the

mandatory parole period was erroneous. The Department of Corrections (“DOC”)

subsequently corrected the error, thus raising the period of mandatory parole from

three years to five years. See Colo. Rev. Stat. § 18-1-105(1)(a)(V)(C) (noting that

the applicable mandatory parole period for a felony committed between July 1,

1993, and July 1,1996, is five years).

      On direct appeal, the Colorado Court of Appeals affirmed the trial court’s

order revoking the deferment and the final sentence of two years of imprisonment

and five years of mandatory parole. Mr. Valentino then filed a certiorari petition

with the Colorado Supreme Court, which was denied. Thereafter, he sought state


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post-conviction relief and, when no relief was obtained through these

proceedings, he filed a petition for habeas relief in federal court, arguing among

other things that his due process rights were violated because he was not properly

advised during the plea proceedings that he would be subject to five years of

mandatory parole instead of three. The district court denied the petition.

Subsequently, Mr. Valentino sought a certificate of applicability from the district

court and, when this was denied, he brought this appeal before this court.



                                          II.

      Because Mr. Valentino’s habeas petition was not filed until June 28, 2000,

the provisions of the Antiterrorism and Effective Death Penalty Act (“AEDPA”)

govern his case. Under AEDPA, a certificate of appealability must be issued

before an appeal may be taken from “the final order in a habeas corpus

proceeding in which the detention complained of arises out of process issued by a

State court.” 28 U.S.C. § 2253(c)(1)(A). We may issue such a certificate “only if

the applicant has made a substantial showing of the denial of a constitutional

right,” id. § 2253(c)(2) – that is, only if the applicant demonstrates “that

reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).




                                          -4-
      On appeal, Mr. Valentino argues that a certificate of appealability is

warranted in his case because of the due process claim described above. We

disagree. A Colorado state court has held that a trial court’s failure to advise a

defendant on a term of mandatory parole does not render a plea involuntary if the

actual sentence imposed on the defendant is less than the maximum penalty of

which he was advised. See People v. Tyus, 776 P.2d 1143, 1144 (Colo. Ct. App.

1989) (“The trial court’s failure to advise defendant of the mandatory parole term

did not constitute reversible error under the circumstances of this case. Because

the length of defendant’s sentence was less than the maximum that he was advised

he could receive, the trial court properly determined that defendant had entered a

valid guilty plea.”); cf. United States v. Barry, 895 F.2d 702, 705 (10th Cir. 1990)

(stating that “the [trial] court’s failure to advise [the defendant] of the term of

supervised release [did not] prejudice[] his decision to plead guilty” because the

“total sentence – including the term of supervised release – [was] only a fraction

of the maximum penalty of which he was advised”). In Mr. Valentino’s case, the

trial court advised that a maximum penalty of sixteen years of imprisonment plus

three years of mandatory parole was possible. Mr. Valentino’s actual sentence




                                           -5-
was markedly less – i.e., two years of imprisonment and five years of mandatory

parole. 1

       Because Mr. Valentino has not made a substantial showing of the denial of

a constitutional right, we DENY the certificate of appealability and DISMISS the

appeal. We GRANT, however, Mr. Valentino’s motion to proceed in forma

pauperis.

                                                  Entered for the Court,



                                                  Robert H. Henry
                                                  Circuit Judge




       1
         During the proceedings below, the respondents argued that the mandatory
parole period was not a direct consequence of Mr. Valentino’s plea because Mr.
Valentino only pleaded to a deferred judgment and sentence. We do not address
this argument on appeal, resting our decision on the grounds discussed above.

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