                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           FEB 20 2003
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

    MANUEL MALDONADO,

                 Petitioner - Appellant,

    v.                                                    No. 02-2086
                                                (D.C. No. CIV-99-286-LH/KBM)
    DAVID ARCHULETA, Associate                         (D. New Mexico)
    Warden, New Mexico State
    Penitentiary; ATTORNEY GENERAL
    FOR THE STATE OF NEW MEXICO,

                 Respondents - Appellees.


                             ORDER AND JUDGMENT           *




Before KELLY , McKAY , 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(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      This order and judgment is not binding precedent, except under the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.
      Petitioner-appellant Manuel Maldonado, a New Mexico state prisoner,

sought habeas corpus relief in federal district court pursuant to 28 U.S.C. § 2254.

He argued that his trial attorney had provided ineffective assistance of counsel by

encouraging him to accept a plea bargain without investigating the legal status of

one of the prior convictions used to enhance the proposed sentence. The district

court granted the petition in part for the sole purpose of re-sentencing

Mr. Maldonado and denied the petition to the extent it sought withdrawal of

petitioner’s guilty plea. Upon Mr. Maldonado’s appeal, this court granted a

certificate of appealability. We now reach the substance of Mr. Maldonado’s

appellate arguments and affirm the district court’s resolution of the case.

      In connection with the robbery of a nail salon, Mr. Maldonado was charged

with three counts of armed robbery with a deadly weapon, attempt to commit

armed robbery, three counts of conspiracy to commit armed robbery, aggravated

battery, tampering with evidence, conspiracy to commit tampering with evidence,

and possession of a firearm or destructive device by a felon. His attorney

reviewed the indictments, listened to his taped confession, and ascertained from

the district attorney’s office the number of witnesses willing to testify against him

She also calculated that, upon a conviction of all charged crimes, Mr. Maldonado

faced a potential sentence of 125.5 years–with sixty-two of those years attributable




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to the enhancement applicable to a habitual offender with three prior felony

convictions.

      After receiving his attorney’s advice and calculation, Mr. Maldonado pled

no contest to two counts of armed robbery and aggravated battery and

acknowledged that he was the same person previously convicted of three felonies.

Under the plea agreement, he was to be sentenced to thirty-two years’

incarceration with eighteen years of the sentence suspended, resulting in an actual

fourteen-year term of imprisonment. The sentence included an enhancement of

eight years for being a habitual offender with three prior convictions.

      At the sentencing hearing, however, Mr. Maldonado moved for withdrawal

of his plea and dismissal of his attorney. He stated that he had misunderstood the

plea bargain, that his attorney had failed to investigate his claim that one of the

three prior felony convictions had been vacated, and that he had not received full

discovery. The district court denied the motions and sentenced Mr. Maldonado in

accordance with the plea agreement. Mr. Maldonado then pursued state

post-conviction proceedings on the ground that his sentence was improperly

enhanced based on a vacated conviction and that his trial counsel had afforded

ineffective assistance by misrepresenting the potential consequences of proceeding

to trial. The state courts denied relief without analysis.




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      Upon receiving Mr. Maldonado’s pro se § 2254 habeas filing, the assigned

magistrate judge reviewed the record and recognized that Mr. Maldonado was

correct in contending that a 1973 conviction for residential burglary, one of the

three prior felonies used to enhance his sentence, had been declared void. The

magistrate judge appointed counsel for Mr. Maldonado and required

supplementation of the record.

      The State conceded that, because the 1973 conviction was void,

Mr. Maldonado’s sentence should have been based on two prior felonies, rather

than three felonies, and enhanced by four years, rather than eight years. It filed a

motion to dismiss the habeas petition following correction of the state court

judgment. Mr. Maldonado argued that reduction of his sentence would not resolve

his ineffective assistance of counsel claim. He asserted that, using the correct

habitual offender enhancement, his attorney’s calculation of his potential habitual

offender enhancement was off by thirty-two years and that the miscalculation

affected his decision to plead guilty in order to receive an actual sentence of

fourteen years.

      Without holding an evidentiary hearing, the magistrate judge reviewed the

entire record and concluded that “[t]he only constitutional violation is the

conceded problem with the sentence” and that the appropriate remedy for the

violation was re-sentencing. R. vol. I, tab 26 at 8. The district court, adopting the


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magistrate judge’s proposed findings and recommended disposition, entered an

order denying the habeas petition in part and conditionally granting it in part. The

petition was granted for the purpose of re-sentencing Mr. Maldonado: reducing

the period of enhancement from eight to four years. Subsequently, the state court

entered the required amended judgment and sentence. The federal district court

dismissed the habeas petition with prejudice.

       On appeal, Mr. Maldonado asks that the case be remanded to the district

court for an evidentiary hearing on his ineffective assistance claim. He contends

that his guilty plea was unfairly induced by counsel’s miscalculation of his

potential sentence and that, as a consequence, he should be permitted to withdraw

the plea and proceed to trial. His argument fails.

       Because Mr. Maldonado’s claim was not decided on the merits by the state

court, and the “district court made its own determination in the first instance, we

review the district court’s conclusions of law         de novo and its findings of fact, if

any, for clear error.”   LaFevers v. Gibson , 182 F.3d 705, 711 (10th Cir. 1999).

Effectiveness of trial counsel is determined by applying a two-part test:

(1) counsel must have committed errors so serious as to fall outside the kind of

functioning required by the Sixth Amendment; and (2) the defendant must show

the deficient performance prejudiced the defense in such a fashion as to call into

question the reliability of the proceedings.         Strickland v. Washington , 466 U.S.


                                               -5-
668, 687 (1984). In the context of a guilty plea, this requires a defendant to show

that counsel’s deficient performance “affected the outcome of the plea process” by

demonstrating “that there is a reasonable probability that, but for counsel’s errors,

he would not have pleaded guilty and would have insisted on going to trial.”

Miller v. Champion , 262 F.3d 1066, 1072 (10th Cir. 2001) (quotation and

emphasis omitted), cert. denied , 534 U.S. 1140 (2002). Further, a defendant’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.

Rather, we look to the factual circumstances surrounding the plea to determine

whether [defendant] would have proceeded to trial.”       Id. (citation omitted).

       Mr. Maldonado’s ineffective assistance claim may be resolved on the

present record, without the need for an evidentiary hearing.      See Mayes v. Gibson,

210 F.3d 1284, 1287 (10th Cir. 2000) (stating that a habeas petitioner is entitled to

a hearing only “if his allegations, if true and not contravened by the record, would

entitle him to habeas relief”). A careful review of the parties’ arguments, the

record on appeal, and the relevant case law has failed to convince us that the error

in the attorney’s enhancement calculation materially affected Mr. Maldonado’s

decision to plead guilty. Given the strength of the State’s case on the charges

against Mr. Maldonado, including his confession and available key witness

testimony, it is unlikely that a more accurate calculation would have led the


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attorney to alter her plea recommendation. In light of counsel’s success at

negotiating a plea agreement that significantly limited his prison sentence

exposure, there is no reasonable probability that Mr. Maldonado would have

insisted on going to trial had his counsel investigated and calculated differently.

      In ordering the re-sentencing of Mr. Maldonado as a habitual offender with

two, rather than three, prior felony convictions, the district court granted all the

relief to which petitioner is entitled. This remedy was “specifically tailored to the

constitutional error,” and it “restore[d] appellant to the circumstances that would

have existed had no constitutional error occurred.”   United States v. Carmichael ,

216 F.3d 224, 225 (2d Cir. 2000). The conceded error has been fully corrected.

      AFFIRMED.



                                                      Entered for the Court



                                                      Terrence L. O’Brien
                                                      Circuit Judge




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