Robert J. Juarez, Petitioner-appellant, v. Aristedes W. Zavaras, Respondent-appellee, 62 F.3d 1428 (10th Cir. 1995)

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US Court of Appeals for the Tenth Circuit - 62 F.3d 1428 (10th Cir. 1995)

Aug. 9, 1995


Before SEYMOUR, Chief Judge, McKAY and HENRY, Circuit Judges.


ORDER AND JUDGMENT1 

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.2 

In 1989, proceedings were initiated against Mr. Juarez in the District Court of Garfield County, Colorado, in which he was charged with five counts of aggravated incest, two counts of sexual assault on a child, seven counts of incest, and one count for habitual sex offenses against children. Mr. Juarez entered into a plea agreement under which he pleaded guilty to one count of sexual assault on a child and one count of aggravated incest. In return, the prosecution dismissed the remaining charges.

At a providency hearing held on June 23, 1989, the district court accepted Mr. Juarez's guilty plea after reading the elements of the two offenses to him and explaining in detail the consequences of the guilty plea.3  On September 11, 1989, Mr. Juarez was sentenced to 32 years incarceration for aggravated incest and 8 years incarceration for sexual assault. The court ordered the sentences to be served consecutively.

Between November of 1989 and March of 1990, Mr. Juarez filed several motions for post-conviction relief under Colo.Crim. P. 35(b) & (c). In March of 1992, the trial court held a hearing on Mr. Juarez's motions, and subsequently denied them. Mr. Juarez appealed the denial of his motions to the Colorado Court of Appeals. The court of appeals affirmed the trial court's rulings. The court also denied Mr. Juarez's petition for rehearing, and his writ of certiorari to the Colorado Supreme Court was also denied.

On May 23, 1994, Mr. Juarez filed this Petition for a Writ of Habeas Corpus in the United States District Court. He raised four claims: (1) that his guilty plea was involuntary because he was not mentally competent during his providency hearing and at his sentencing hearing; (2) that he was deprived of due process because the structure of his trial was constitutionally defective; (3) that his trial counsel was ineffective because he failed to advise Mr. Juarez of potential defenses to the incest charge, including consent of the victim and a showing that the victim was not actually his stepdaughter; and (4) that the trial court was unfairly biased against him and should have recused given the fact that the victim's mother worked in the judicial system in the same county in which he was tried. Upon the recommendation of the magistrate judge, the district court dismissed Mr. Juarez's petition. Mr. Juarez now appeals from that dismissal.4 

After thoroughly reviewing the record in this case, we find no error in the district court's dismissal of Mr. Juarez's petition. We accordingly AFFIRM the judgment of the district court. The mandate shall issue forthwith.

 1

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 the court's General Order. 151 F.R.D. 470 (10th Cir. 1993)

 2

We issue a certificate of probable cause pursuant to 28 U.S.C. 2253 and proceed to the merits on appeal

 3

The court read the elements of the offenses to Mr. Juarez twice during the proceeding. District Court, Garfield County, Colorado, Rec. vol. II, at 3-5, 8-9. Mr. Juarez was also informed of the sentencing range available to the court. Id. at 4-5. The court inquired into Mr. Juarez's capacity to understand the proceedings and to waive his rights. Id. at 4, 6-10, 12. Additionally, the court specifically advised Mr. Juarez that he was waiving any technical defenses he might have had. Id. at 9, 12

 4

We deny Mr. Juarez's motion for an evidentiary hearing in this case