F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           DEC 5 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ANTONIO HERNANDEZ
    RODRIGUEZ,

                Petitioner-Appellant,
                                                         No. 01-3081
    v.                                            (D.C. No. 97-CV-3499-DES)
                                                           (D. Kan.)
    RICHARD SOARES, Warden, Limon
    Correctional Facility; ATTORNEY
    GENERAL OF THE STATE OF
    KANSAS,

                Respondents-Appellees.


                            ORDER AND JUDGMENT            *




Before HENRY , ANDERSON , and BRISCOE , Circuit Judges.




         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); 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      This order and judgment is not binding precedent, except under the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 Antonio Hernandez Rodriguez filed a habeas petition pursuant to

28 U.S.C. § 2254 in which he alleged his guilty plea was not knowing and

voluntary and, therefore, “void” because the state trial court had misinformed him

of the consequence of entering the plea. Specifically, he argues that although the

state district court assured him he could raise his defense related to his lack of a

speedy trial on appeal, the Kansas Supreme Court refused to hear such appeal.

The federal district court denied the petition and granted him a certificate of

appealability, see 28 U.S.C. § 2253(c)(1)(A), (B), thus permitting him to proceed

on appeal. We determine that, although the state trial court erred in representing

to petitioner that he could directly appeal the issue of whether his speedy trial

rights were violated despite entering a guilty plea, that error was harmless, in

light of the fact that the Kansas Supreme Court eventually did consider the speedy

trial arguments. We affirm the district court’s decision.



I. Background

      In 1990, petitioner pled guilty in Kansas state court to one count of

aggravated robbery. He was sentenced to forty-five years to life as an habitual

criminal. The Kansas sentence was imposed to be served consecutively to

sentences previously assessed in Colorado and Texas. Before entering his plea,

petitioner informed the court that he wished to appeal the issue of whether his


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speedy trial rights under the Interstate Agreement on Detainers Act had been

violated. The court assured him that, as the speedy trial issue went to the

question of whether the court had jurisdiction to accept his plea, it would     not be

waived by the court’s acceptance of the plea.

       The Kansas Supreme Court, however, held that petitioner had waived the

speedy trial issue by entering a guilty plea because the issue was not

jurisdictional. The court advised petitioner he could have the issue heard by

moving to have his guilty plea vacated. Petitioner filed a motion to vacate his

guilty plea. The trial court denied the motion on the ground that, as he was not

asserting his innocence, petitioner could not withdraw his plea. On appeal the

Kansas Supreme Court affirmed the trial court’s decision. The court also reached

the merits of petitioner’s speedy trial claim and determined it was without merit.

       Petitioner then brought this action in federal district court. The district

court denied relief, holding that petitioner had failed to meet the statutory

requirements which would entitle him to habeas relief. On appeal, petitioner

reiterates his contention that   his guilty plea was invalid because the state court

misinformed him about the material consequences of his plea. He argues that the

courts reviewing his claim have erroneously applied the “hindsight harmless error

test” in order to determine that his claim had no merit. Petitioner’s Br. at 8.




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II. Analysis

       Because this petition is governed by the provisions of AEDPA, our review

hinges on the state courts’ treatments of petitioner’s claim. Since the Kansas

Supreme Court adjudicated the claim on the merits,

       petitioner will be entitled to federal habeas relief only if he can
       establish that the state court decision was contrary to, or involved an
       unreasonable application of, clearly established Federal law, as
       determined by the Supreme Court of the United States or was based
       on an unreasonable determination of the facts in light of the evidence
       presented in the State court proceeding.

Toles v. Gibson , 

, 1172 (10th Cir. 2001) (quotations and citation

omitted). Further, we presume that the state court’s determinations of historical

fact are correct. 28 U.S.C. § 2254(e)(1).

       A guilty plea must “represent[ ] a voluntary and intelligent choice among

the alternative courses of action open to the defendant.”   North Carolina v.

Alford , 

, 31 (1970). Whether a guilty plea was knowing and

voluntary is a question of federal law,   Marshall v. Lonberger , 

, 431

(1983), which we review de novo,      Laycock v. New Mexico , 

, 1186

(10th Cir. 1989).

       A plea may be involuntary either because the accused does not
       understand the nature of the constitutional protections that he is
       waiving or because he has such an incomplete understanding of the
       charge that his plea cannot stand as an intelligent admission of guilt.
       Without adequate notice of the nature of the charge against him, or
       proof that he in fact understood the charge, the plea cannot be
       voluntary in this latter sense.

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Henderson v. Morgan , 

, 645 n.13 (1976)     (citations omitted).

       Although the state trial court’s assurance to petitioner that he could raise

the speedy trial issue on direct appeal resulted in petitioner not knowing the true

consequence of his plea, that error was harmless.   See, e.g. , Chapman v.

California , 

, 22 (1967) (concluding that some constitutional errors

may be “so unimportant and insignificant that they may, consistent with the

Federal Constitution, be deemed harmless, not requiring the automatic reversal of

the conviction”); see also Brecht v. Abrahamson , 

, 634 (1993)

(federal habeas relief will be granted to “[t]hose few who are . . . persons whom

society has grievously wronged and for whom belated liberation is little enough

compensation”) (quotations omitted).

       The Kansas Supreme Court did address petitioner’s claim and found it to be

without merit. Thus, petitioner actually received review he desired when he

decided to enter the plea. That the review occurred in a later proceeding than

anticipated, does not alter the fact that petitioner received all the review he was

entitled to in the state courts.

       In reviewing petitioner’s claim on the merits, we cannot say that the Kansas

Supreme Court’s decision was contrary to, or involved an unreasonable

application of, clearly established federal law or was based on an unreasonable




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determination of the facts. Further, petitioner does not argue on appeal that the

court erroneously decided that his speedy trial rights had not been violated.



III. Conclusion.

      Relief under § 2254(a) can be granted only if the state court’s

determination “was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United

States; or . . . was based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.” 28 U.S.C. 2254(d). Even

though petitioner was misinformed of his appeal rights, the speedy trial claim was

ultimately heard by the Kansas Supreme Court. Thus, no error cognizable on

federal habeas review occurred.

      The judgment of the United States District Court for the District of Kansas

is AFFIRMED.



                                                     Entered for the Court



                                                     Robert H. Henry
                                                     Circuit Judge




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