946 F.2d 900 (10th Cir. 1991), 90-2264, Bethel v. Kerby

Docket Nº:90-2264.
Citation:946 F.2d 900
Party Name:Thomas Patrick BETHEL, Petitioner-Appellant, v. Dareld L. KERBY, Warden, Respondent-Appellee.
Case Date:October 09, 1991
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 900

946 F.2d 900 (10th Cir. 1991)

Thomas Patrick BETHEL, Petitioner-Appellant,

v.

Dareld L. KERBY, Warden, Respondent-Appellee.

No. 90-2264.

United States Court of Appeals, Tenth Circuit

October 9, 1991

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA10 Rule 36.3 regarding use of unpublished opinions)

D.N.M., No. 90-681-SC; Campos, D.J.

D.N.M.

AFFIRMED.

Before STEPHEN H. ANDERSON, TACHA and BRORBY, Circuit Judges.

ORDER AND JUDGMENT [*]

STEPHEN H. ANDERSON, Circuit 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 cause is therefore ordered submitted without oral argument.

Petitioner, Thomas Patrick Bethel, is before us on an application for a certificate of probable cause in order that he might appeal the district court's denial of his petition for a writ of habeas corpus. In his petitioner, Bethel asserts that his 1984 plea of guilty in state court to the charge of receiving stolen property, and his agreement to a charge under New Mexico's habitual offender statute, were unconstitutionally induced by an unfulfilled promise on the part of the state that any sentence imposed would run concurrently with a sentence to be imposed by a state court in another judicial district on a then pending charge of armed robbery. Bethel contends that this alleged promise was breached by the state and the court which imposed a consecutive sentence. Bethel contends further that his counsel was constitutionally ineffective in that counsel informed Bethel that if he entered the plea agreement he would receive a concurrent sentence with that expected to be imposed for the armed robbery charge, and by failing to object when that promise was disregarded. He alleges that his counsel was further ineffective by failing to move for withdrawal of the plea agreement when a consecutive sentence was imposed. The district court adopted the magistrate judge's proposed findings and recommended disposition and dismissed Bethel's petition. We grant a certificate of probable cause, and affirm.

The basic facts are as follows. On October 30, 1984, Bethel, who was represented by counsel, entered into a detailed plea agreement, a copy of which we attach hereto. That agreement recites Bethel's considerable criminal history, including felony dealing in credit cards, forgery of a credit card, residential burglary, and armed robbery. In addition, the agreement refers to another charge which was pending at that time, which the file reveals to have been another armed robbery charge. On March 11, 1985, after Bethel had been sentenced on the armed robbery in another state court, the state court for the County of Bernallilo, Second Judicial District, sentenced Bethel to a term of 18 months on the charge of receiving stolen property, with four years enhancement as an habitual offender, with the five and one-half year total sentence to run consecutively to the sentence imposed on the armed robbery charge. Five years later, Bethel commenced this attack on the latter sentence by filing a petition for a writ of habeas corpus in New Mexico District Court. In that petition he alleged that it was his "understanding" that he would receive a concurrent, not a consecutive sentence if he pled guilty, that his attorney led him to believe that he would receive a concurrent sentence, that his attorney ineffectively defended him by doing so, and that the handwritten insertion of paragraph 10 in the plea agreement was made without his knowledge or consent. He attached a letter from his attorney, Shannon Robinson, purporting to support some of the contentions just outlined.

On April 10, 1990, the state district court denied relief, specifically finding that the "tape of the plea on 10/30/84 shows that paragraph 10 of the plea agreement was discussed and that defendant was fully aware of the situation." Bethel then filed a motion for reconsideration in which, in two numbered paragraphs, he renewed his claim that his attorney misadvised him that his sentence would be concurrent with the armed robbery sentence, and that "the Court [which imposed the consecutive sentence now being challenged, and before the which the state habeas petition was then under consideration] was unaware that the District Court in Las Cruces would later enhance the Petitioner's sentence by an additional 3 (three) years through a habitual charge." The motion for reconsideration did not renew Bethel's charge that the handwritten paragraph 10 in the plea agreement was inserted without his knowledge, understanding or consent. On May 9, 1990, the same state district court denied Bethel's motion for reconsideration in an order which stated as follows:

ORDER

Defendant Bethel's Motion for Reconsideration of his Petition for Habeas Corpus having been considered by the Court and the court having reviewed paragraph 10 of the Repeat Offender Plea and Disposition Agreement and having listened to the tape of the hearing wherein defendant changed his plea on...

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