Hansen v. Chavez

Filing 10

ORDER Denying Petition for Writ of Habeas Corpus; Denying Certificate of Appealability. ***Civil Case Terminated. Signed by Judge Thelton E. Henderson on 04/10/2013. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 4/11/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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C 11-3568 TEH (PR)

NORMAN RONNIE HANSEN,
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ORDER DENYING PETITION FOR WRIT
OF HABEAS CORPUS; DENYING
CERTIFICATE OF APPEALABILITY

Petitioner,
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v.
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FRANK X. CHAVEZ, Warden,
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Respondent.
United States District Court
For the Northern District of California

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/
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Petitioner Norman Ronnie Hansen, a state prisoner

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incarcerated at Sierra Conservation Center (SCC) located in
Jamestown, California, filed this pro se action seeking a writ of
habeas corpus under 28 U.S.C. § 2254.

Court for consideration of the merits of the habeas petition.

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On December 10, 2008, Petitioner was sentenced in Santa

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For

the reasons discussed below, the petition will be DENIED.

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The matter is now before the

Clara County Superior Court to thirteen years following his guilty
plea.

11 Clerk’s Transcript (CT) 2843-2847.
Petitioner appealed his conviction in the California Court

of Appeal and also filed a state petition for a writ of habeas
corpus asserting ineffective assistance of counsel.

The Court of

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Appeal consolidated the two cases.

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unpublished decision, the California Court of Appeal affirmed the

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judgment and denied the habeas petition.

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4739532 (Cal. Ct. App. Nov. 23, 2010).

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California Supreme Court summarily denied review.

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California Supreme Court.

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the California Supreme Court summarily denied the petition.

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Respondent’s Exhibit 8.

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On November 23, 2010, in an

People v. Hansen 2010 WL

On March 21, 2011, the
Respondent. Exh.

On January 7, 2011, Petitioner filed a habeas petition in the
Respondent. Exh. 12.

On June 15, 2011,

On July 20, 2011, Petitioner filed the instant federal

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petition asserting the following claims: (1) the trial court

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violated his right to due process by imposing consecutive sentences

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based on the facts underlying counts dismissed in his plea bargain,

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in violation of People v. Harvey, 25 Cal. 3d 754 (1979);

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(2) ineffective assistance of counsel based on counsel’s failure to

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raise a Harvey violation objection at sentencing; (3) the trial

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court violated his right to due process because it exceeded its

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sentencing discretion under California law; (4) the trial court

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violated his due process rights by relying on the same set of

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factors to impose a sentencing enhancement and consecutive

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sentences; and (5) ineffective assistance of counsel for failing to

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object to the due process violation in claim four.

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2012, this Court ordered Respondent to show cause as to why the

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petition should not be granted.

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Petitioner filed a traverse.

Respondent filed an answer;

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On February 3,

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The following factual background is taken from the order
of the California Court of Appeal.
Pursuant to a plea agreement, defendants Norman Ronnie Hansen
and Joseph Maloof pleaded guilty to multiple counts arising
from their fraudulent operation of three travel agencies. The
defendants admitted certain enhancing allegations, and Hansen
admitted having a strike prior conviction within the meaning of
Penal Code sections 667, subdivisions (b)-(c) and 1170.12. The
remaining counts and enhancements were dismissed and, after the
trial court granted Hansen’s Romero motion [striking the prior
conviction], the defendants were sentenced to a total terms of
thirteen years.

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On April 25, 2008, defendants were charged by information with
embezzlement by trustees (§ 506, count 1); nine counts of
failure to provide travel services or make refunds (Bus. &
Prof. Code, § 17550.14, subd. (a)(1), counts 2, 4, 5, 6, 8, 11,
12, 13, 14); three counts of theft or embezzlement from an
elder or dependent adult (§ 368, subd. (d), counts 3, 7, 9);
writing a check with insufficient funds (§ 476a, count 10),
unlawful encumbrance of a trust account by a “seller of travel”
(Bus. & Prof. Code, § 17550.15, subd. (c), count 15); two
counts of money laundering of more than $5,000 (§ 186.10, subd.
(a), counts 16, 17), and theft of funds received as insurance
premium (Ins. Code, § 1733, count 18). Hansen was additionally
charged with presenting a false insurance claim
(§ 550, subd. (a)(1), count 19).
The information further alleged that Hansen had suffered a
strike prior conviction. (§§ 667, subds. (b)-(c), 1170.12.) As
to the embezzlement count, the information alleged that
defendants took property with a value exceeding $1 million
(§ 12022.6, subd. (a)(3)), and with respect to the nine counts
of failure to provide travel services or refunds that each
defendant obtained $1,000 or more within a consecutive 12 month
period from all persons, and $400 or more from one person in a
12 month period (Bus. & Prof. Code, § 17550.19, subd. (b)).
The information also alleged an aggravated white collar crime
enhancement (§ 186.11, subd. (a)(1), (2)) on the basis that the
crimes involved a pattern of felony conduct resulting in the
taking of more than $500,000.
On May 6, 2008, defendants pleaded guilty to counts 1, 2, 4, 5,
6, 8, and 10 through 16. They also admitted the allegations
pursuant to section 12022.6, subdivision (a)(3) and Business
and Professions Code section 17550.19, subdivision (b). Hansen
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admitted having a felony strike prior conviction. All
remaining counts and enhancements were dismissed. Maloof was
advised that he could be sentenced to a maximum term of 14
years. Hansen was advised that he faced a maximum term of 28
years in prison unless his Romero motion was granted, in which
case his maximum sentence would be 14 years.

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Hansen’s Romero motion was granted, and on December 10, 2008,
defendants were each sentenced to a total prison term of 13
years.

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Maloof and Hansen owned and operated, were employed by, and/or
purchased three related travel agencies: JM Travel Selections
(TS), based in Santa Clara County; ITS International Tours
(ITS), based in Louisiana; and International Grand Tours (IGT),
based in Santa Clara County. From 2003 through 2005,
defendants received payment from a number of victims totaling
in excess of $1.2 million for travel services, mostly involving
group travel for schoolchildren and religious pilgrimages. The
defendants failed to provide the arranged and paid for travel
services, and failed to refund the monies paid.
During the course of their operations, the defendants
repeatedly used funds received from clients to meet other
unrelated financial obligations, and would attempt to delay the
purchase of travel services until a later group of victims
could submit payment for an unrelated travel service. The
funds deposited by victims were transferred out of the travel
agencies’ accounts for numerous reasons, including but not
limited to the following: paying outstanding debts to other
creditors; deposits into the defendants’ personal accounts;
purchasing and paying off the debt on personal vehicles, such
as a Toyota Celica purchased by Maloof’s daughter; purchasing
meals and day-to-day necessities; and purchasing travel
services for defendants’ family, friends and associates, such
as a cruise for Hansen’s wife and a number of TS employees.
Defendants also laundered funds from one company to another,
using personal accounts and numerous banks to transfer the
funds. They also charged some of their victims for travel
insurance, but failed to purchase any such insurance. Because
the defendants had “a fiduciary responsibility with respect to
all sums received for transportation or travel services” under
Business and Professions Code section 17550.15, subdivision
(g), their use of the victims’ funds for unrelated expenses and
outstanding debts constituted embezzlement.
As the amount of money defendants owed grew, their scheme broke
down, as they no longer had enough money on hand to purchase
the travel services for which they had received payment. At
that point, defendants began adding fraudulent surcharges to
their bills in an attempt to increase their cash flow. These
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surcharges included extra fees for “currency fluctuations,”
despite there being no such fluctuations, as well as “air
taxes” and “fuel surcharges” supposedly imposed by the
airlines, even though no airline tickets were purchased.

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In all, more than 600 individual victims were harmed by
defendants’ actions. Defendants failed to provide travel
services paid for, failed to honor requests for refunds or
provide refunds within the time provided by law after
cancelling trips or allowing scheduled departure dates to
lapse. On numerous occasions, defendants would send refund
checks to victims, knowing that there were insufficient funds
to cover the checks, which would subsequently bounce.

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At the sentencing hearing, which took place over three days,
two witnesses testified on Hansen’s behalf and Maloof spoke at
length explaining his version of what happened and in which he
placed the majority of the blame on Hansen. Hansen spoke
briefly on his own behalf, stating that he never intended to
take anyone’s money and that he intended to pursue insurance
claims to recoup his clients’ funds. The prosecutor and
Hansen’s counsel each submitted detailed sentencing memoranda
to the court. The prosecutor also presented several taped
victim statements to the court.

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Before pronouncing sentence, the trial court noted that the
defendants had presented conflicting versions of what took
place, each of them pointing the finger of blame at the other.”
. . . [¶]. What there’s no question about in my mind and which
nobody can dispute is there are a lot of victims in this case;
every kind and of every category, and that’s somewhat
overlooked.”
The court praised the probation department for preparing an
excellent report with multiple letters, each of which the court
had read. The letters, along with the victims’ recordings
played by the prosecutor, helped the court appreciate the
emotional impact of defendants’ crimes. The court noted that
many of the victims were young students who worked for money to
take the trips in question, teachers whose reputations were
damaged when parents accused them of taking the funds, as well
as elderly people who lost once in a lifetime opportunities.
The court found that both defendants were “pretty much in the
same position as far as the court has considered regarding
. . . their culpability and responsibility so both will be
sentenced to exactly the same sentence.” The court denied
probation, citing “the seriousness of the case, the
sophistication and planning that was involved, the large number
of victims and the amount of the losses.”
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In pronouncing sentence, the court “considered both aggravating
and mitigated sentencing factors pursuant to [California] Rules
of Court [rules] 4.421 and 4.423. In all honesty the court
finds that the aggravating factors far outweigh any mitigating
factors that would apply. However, due primarily to the fact
that this case was resolved early without a trial the court
will be considering imposing mid-terms instead of aggravating
terms on each count. [¶] The court is going to choose to run
consecutive [sentences on] each of the counts[.] I base that
primarily on the rule of court that addresses that issue and
the recognition that . . . several charges were dismissed, and
the evidence also shows that there are literally hundreds of
victims that are not reflected in any of the counts that were
pled guilty to. Groups of victims and other victims that were
not involved in any so to the extent that you’ve explained why
they are concurrent, I’m not necessarily rejecting that, I’m
just indicating that I’m deciding to run the charges—or the
sentences consecutive because I feel that the crimes do reflect
separate instances of conduct and separate victims or groups of
victims.”

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The court then imposed the mid-term sentence of two years on
count 1, with a three year enhancement for excessive taking
under section 12022.6, for a total of five years. On each of
the remaining 12 counts the middle term was two years, so the
court imposed one third the middle term, or eight months,
consecutive sentences for a total term of 13 years.
Hansen, 2010 WL 4739532 at *1-4.

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III

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Under the Antiterrorism and Effective Death Penalty Act of

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1996 (“AEDPA”), codified under 28 U.S.C. § 2254, a federal court may

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not grant a writ of habeas corpus on any claim adjudicated on the

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merits in state court unless the adjudication:

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decision that was contrary to, or involved an unreasonable

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application of, clearly established Federal law, as determined by

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the Supreme Court of the United States; or (2) resulted in a

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decision that was based on an unreasonable determination of the

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facts in light of the evidence presented in the State court

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proceeding.”

28 U.S.C. § 2254(d).

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“(1) resulted in a

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“Under the ‘contrary to’ clause, a federal habeas court

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may grant the writ if the state court arrives at a conclusion

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opposite to that reached by [the Supreme] Court on a question of law

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or if the state court decides a case differently than [the] Court

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has on a set of materially indistinguishable facts.”

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(Terry) v. Taylor, 529 U.S. 362, 412–13 (2000).

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‘unreasonable application’ clause, a federal habeas court may grant

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the writ if the state court identifies the correct governing legal

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principle from [the] Court’s decisions but unreasonably applies that

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principle to the facts of the prisoner’s case.”

Williams

“Under the

Id. at 413.

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“[A] federal habeas court may not issue the writ simply

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because that court concludes in its independent judgment that the

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relevant state-court decision applied clearly established federal

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law erroneously or incorrectly.

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objectively unreasonable.”

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(2003) (internal quotation marks and citation omitted).

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in conducting its analysis, the federal court must presume the

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correctness of the state court’s factual findings, and the

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petitioner bears the burden of rebutting that presumption by clear

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and convincing evidence.

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explained: “[o]n federal habeas review, AEDPA ‘imposes a highly

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deferential standard for evaluating state-court rulings’ and

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‘demands that state-court decisions be given the benefit of the

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doubt.’”

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(2011) (citation omitted).

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Rather, that application must be

Lockyer v. Andrade, 538 U.S. 63, 75-76

28 U.S.C. § 2254(e)(1).

As the Court

Felkner v. Jackson, __ U.S. __, 131 S. Ct. 1305, 1307

When applying these standards, the federal court should

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Moreover,

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review the “last reasoned decision” by the state courts.

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Galaza, 297 F.3d 911, 918 n.6 (9th Cir. 2002).

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California Supreme Court summarily denied Petitioner’s petition for

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review of his direct appeal and his petition for a writ of habeas

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corpus, this Court looks to the California Court of Appeal’s

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November 23, 2010 written opinion affirming the trial court’s

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judgment and denying his petition for a writ of habeas corpus.

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Avila v.

Because the

With these principles in mind regarding the standard and
scope of review on federal habeas, the Court addresses Petitioner’s
claims.

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IV

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A

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In his first claim for relief, Petitioner contends that

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his sentence amounted to a violation of due process under Santobello

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v. New York, 404 U.S. 257 (1971) because he was sentenced to

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consecutive terms allegedly based on dismissed counts in violation

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of Harvey.

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is procedurally defaulted and, even if the Court could address its

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merits, the Court of Appeal’s denial of this claim on its merits was

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not unreasonable.

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Petitioner. at 6.

Respondent counters that this claim

Respondent. Ans. at 7.

The state Court of Appeal found that this claim was
procedurally barred, and also denied it on its merits as follows:
Defendants contend that the trial court improperly relied on
dismissed counts to impose fully consecutive subordinate terms,
in violation of Harvey.
Defendants were initially charged with one count of
embezzlement, nine counts of failure to provide travel services
or make refunds, three counts of theft or embezzlement from an
elder or dependent adult, one count of making a check with
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insufficient funds, one count of unlawful encumbrance of a
trust account by a seller of travel, two counts of money
laundering and one count of theft of funds received as an
insurance premium. Hansen was also charged with presenting a
false insurance claim. They both pleaded guilty to all counts
except for the three counts charging theft or embezzlement from
an elder or dependent adult, one count of money laundering, and
theft of funds received as an insurance premium, and those
counts were dismissed. Hansen also did not plead guilty to the
charge of presenting a false insurance claim, and that count
was also dismissed. Both defendants admitted certain
enhancements and Hansen admitted having suffered a strike prior
conviction.
Neither defendant raised a Harvey objection at the sentencing
hearing. It is well-settled that “complaints about the manner
in which the trial court exercises its sentencing discretion
and articulates its supporting reasons cannot be raised for the
first time on appeal.” (People v. Scott (1994) 9 Cal.4th 331,
356.) Thus, defendants' claim has been forfeited. However,
even if we were to consider it, there is no merit to the
contention.

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In Harvey, the California Supreme Court held that, where a plea
is entered on condition that other counts be dismissed, it is
an “[i]mplicit” term of the plea agreement “(in the absence of
any contrary agreement) that defendant will suffer no adverse
sentencing consequences by reason of the facts underlying, and
solely pertaining to, the dismissed counts.” (Harvey, 25
Cal.3d at 758.) However, Harvey does not apply where the
dismissed counts were “transactionally related ” to the count
to which the defendant pleaded. Id.
The record is clear that the court decided to impose
consecutive sentences based on the separate occasions and
separate victims involved in the nine counts at issue. It is
true that the trial court mentioned that several charges
against the defendants had been dismissed pursuant to the plea
bargain, but it made that reference in the context of
criticizing the prosecutor's more lenient sentencing
recommendation. The trial court does not discuss the dismissed
counts in articulating the reasons why it was imposing
consecutive sentences on counts 2, 4, 5, 6, 8, and 10 through
16. Instead, the trial court explicitly stated that those
sentences would run consecutively because the nondismissed
counts took place on different occasions and involved separate
victims.
Hansen, 2010 WL 4739532 at *6-7.
Petitioner concedes that this claim is procedurally barred

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but argues that he shows cause and prejudice based on counsel’s

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ineffective assistance in not objecting to it at Petitioner’s
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sentencing hearing.

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ineffective, and therefore the claim is procedurally barred.

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However, even if it were not procedurally barred, it fails on its

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merits.

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As discussed below, counsel was not

Under Santobello, a criminal defendant has a due process

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right to enforce the terms of his plea agreement.

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62.

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agreement of the prosecutor, so that it can be said to be part of

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the inducement or consideration, such promise must be fulfilled.

404 U.S. at 261-

When a plea rests in any significant degree on a promise or

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Id. at 262.

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agreements "and the concomitant obligations flowing therefrom are,

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within broad bounds of reasonableness, matters of state law.”

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Buckley v. Terhune, 441 F.3d 668, 695 (9th Cir. 2006)(quoting

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Ricketts v. Adamson, 483 U.S. 1, 6 n.3 (1987)).

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presumed to know and follow the law.

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U.S. 19, 24 (2002).

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also presumed correct in the absence of clear and convincing

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evidence to the contrary.

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(9th Cir. 2004).

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The construction and interpretation of state court plea

State courts are

Woodford v. Visciotti, 537

A state appellate court’s factual findings are

William v. Rhodes, 354 F.3d 1101, 1108

Here, the state Court of Appeal made a factual finding

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that the trial court based the sentence solely on the nine counts to

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which Petitioner pleaded guilty.

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court mentioned the dismissed charges, it made that reference in the

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context of criticizing the prosecutor’s more lenient sentencing

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recommendation.

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appellate court found that the trial court explicitly stated that

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the sentence would run consecutively because the nondismissed counts

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took place on different occasions and involved separate victims.

It found that, although the trial

Hansen, 2010 WL4739532 at *7.

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Additionally, the

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Id.

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presumed to be correct.

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Without evidence to the contrary, these factual findings are

The trial court stated it was imposing consecutive terms

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because “the crimes do reflect separate instances of conduct and

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separate victims or groups of victims.”

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268.

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the additional eight-month sentence for each of the remaining counts

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was to run consecutive, “again reflecting separate occasions and

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against separate victims.”

Reporter’s Transcript (RT)

After selecting the base term, the trial court emphasized that

RT 469.

The record below provides ample

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support for the trial court’s decision.

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Petitioner was charged involved separate occasions and separate

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victims as follows:

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The counts with which

Count 2: June 29 to August 25, 2005; victims named as Canadian
Rockies tour group with leader Marilyn Cole and Roberta
Kraynick;
Count 4: September 21 to November 2, 2004; victims named as
Pilgrims from Archiocese of Kansas City with group leaders Rev.
James Kelcher and Susan Carroll;
Count 5: October 18 to December 23, 2004; victims named as
Pilgrims from Michigan Catholic Radio with group leader John
Kruse;
Count 6: September 20 to November 31, 2004, victim named as
Barbara Collins;
Count 8: September 27 to February 2, 2005; victim named as
Charles Newger;
Count 10: On or about January 5, 2005; wrote check with
insufficient funds drawn on Wells Fargo Bank;
Count 11: May 19 to July 11, 2005; victims named as Students of
Edwardsville High School with group leader Marion Thompson;
Count 12: June 13 to August 3, 2005; victims named as the
Students of Depew High School with group leader Angela Roeser;
Count 13: June 9 to July 21, 2005; victims named as the
Students of Fairmont High School with group leader Amy
Dunaway-Haney;
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Count 14: June 23 to August 16, 2005; victims named as Jeff and
Martha Davis;

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Count 15: September 1 to September 24, 2004 – unlawful
encumbrance of trust account by taking money from the trust
account for a purpose other than that authorized by law;

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Count 16: December 17 to 20, 2004; money laundering.
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CT at 394-400.
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Based on these counts, the trial court properly imposed
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consecutive terms and there was no violation of the plea agreement
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or denial of due process under Santobello.

Therefore, it was not

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objectively unreasonable for the Court of Appeal to determine that
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there was no Harvey violation because Petitioner was not sentenced
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to consecutive terms based on the dismissed charges, but rather on
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the nondismissed counts involving separate crimes and separate
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victims.
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B

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In his second claim, Petitioner argues that he suffered

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ineffective assistance of counsel because his attorney failed to
object to the Harvey violation at sentencing.
Trav. at 8.
defaulted.

Petitioner. at 6;

Respondent argues that this claim is procedurally
Resp. Ans. at 10.

The Court addresses this claim on its

merits.
In order to prevail on a Sixth Amendment ineffectiveness
of counsel claim, a petitioner must establish two things.

First, he

must establish that counsel's performance was deficient, i.e., that
it fell below an "objective standard of reasonableness" under
prevailing professional norms.
668, 687-88 (1984).

Strickland v. Washington, 466 U.S.

Second, he must establish that he was

prejudiced by counsel's deficient performance, i.e., that "there is
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a reasonable probability that, but for counsel's unprofessional

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errors, the result of the proceeding would have been different."

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Id. at 694.

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undermine confidence in the outcome.

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been ineffective for failing to raise a meritless motion.

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v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005); Rupe v. Wood, 93 F.3d

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1434, 1445 (9th Cir. 1996).

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A reasonable probability is a probability sufficient to
Id.

Trial counsel cannot have
Juan H.

The Court of Appeal rejected Petitioner’s argument that

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his counsel was ineffective for failing to raise a Harvey objection

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at sentencing because the objection was meritless and Petitioner was

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not prejudiced.

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a Harvey objection would have been without merit because there was

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no violation.

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failing to make a meritless objection.

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denial of this claim was not unreasonable.

Hansen, 2010 WL 4739532 at *7.

As discussed above,

Trial counsel’s performance was not deficient for

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The state appellate court’s

C

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In his third claim for relief, Petitioner argues that the

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trial court mistakenly believed that it could impose consecutive

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sentences of one-third the upper term and did not exercise informed

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discretion when it sentenced him to consecutive sentences of one-

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third the middle term.

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claim does not raise a federal constitutional issue.

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Pet. at 6.

Respondent argues that this
Resp. Ans. 11.

The Supreme Court has repeatedly held that the federal

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habeas writ is unavailable for violations of state law or for

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alleged errors in the state’s interpretation or application of its

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own laws.

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v. McGuire, 502 U.S. 62, 67-68 (1991).

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fundamental unfairness, an assertion that a state court misapplied

Swarthout v. Cooke, 131 S. Ct 859, 861-62 (2011); Estelle

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Absent a showing of

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its own sentencing laws does not justify federal habeas relief.

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Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994); Cacoperdo v.

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Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (“The decision whether

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to impose sentences concurrently or consecutively is a matter of

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state criminal procedure and is not within the purview of federal

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habeas corpus”).

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state-law issue into a federal one merely by asserting a violation

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of due process.”

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1996).

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Furthermore, a petitioner may not “transform a

Langford v. Day, 110 F.3d 1380, 1389 (9th Cir.

Petitioner does not cite to any federal law or

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constitutional provision in support of this claim.

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assertion of a due process violation does not entitle him to federal

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habeas relief unless he can show fundamental unfairness.

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110 F.3d at 1388; Christian, 41 F.3d at 469.

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Petitioner’s

Langford,

Furthermore, Petitioner fails to show fundamental

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unfairness.

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exercised informed discretion as follows:

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The Court of Appeal found that the trial court

We presume that the trial court acted in such a way
as to achieve legitimate sentencing objectives. (People v.
Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977–978.)
Consequently, defendants bear the burden to show that the
court's ruling was irrational or arbitrary.
The trial court made it clear that it believed that the
aggravating factors in this case far outweighed the mitigating
factors, but decided to impose the mid-term punishment because
the defendants had resolved the case quickly by entering into a
plea bargain. The court made this statement before revealing
that it would be imposing consecutive sentences on certain
counts. Once it indicated that all other counts would run
consecutive to the embezzlement count, the court imposed
one-third the mid-term sentences on each of those counts.
Defendants have not shown that the trial court either
misunderstood or failed to properly exercise its discretion in
imposing this sentence.
Hansen, 2010 WL 4739532 at *8.
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The Court of Appeal reasonably concluded that the trial

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court exercised its discretion correctly.

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indication of fundamental unfairness that warrants habeas relief.

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Therefore, there is no

D

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In his fourth claim, Petitioner argues that the trial

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court violated the dual use provision of California Penal Code

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section 1170(b) by impermissibly imposing a sentencing enhancement

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and consecutive terms based on the same facts.

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Petitioner cites Wasko v. Vasquez, 820 F.2d 1090, 1091, n.2 (9th

Pet. at 6.

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Cir. 1987) to claim that he was denied due process because he has a

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liberty interest in a sentencing right accorded by a state statute,

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namely California Penal Code section 1170(b).

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Wasko, the Ninth Circuit concluded that the petitioner had a

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Fourteenth Amendment liberty interest against excessive punishment

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that he may be deprived of only to the extent authorized by state

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statute.

Trav. at 11.

In

Wasko, 820 F.2d at 1091, n.2.

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The Court of Appeal denied this claim as follows:

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Defendants argue that the trial court violated the dual use
provision of section 1170, subdivision (b) by relying on the
same fact to both enhance their sentence for embezzlement
and to impose consecutive terms.

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As discussed above, the embezzlement and the failure to
refund involved separate intents and objectives. The great
taking enhancement imposed on the embezzlement count was
based solely on the large amount of money which defendants
stole. It was merely incidental that the total amount stolen
came from a number of victims on many different occasions.
The enhancement is triggered solely by a defendant's illgotten
gains exceeding a specified dollar amount. It makes no
difference if that total amount comes from one victim or from
multiple victims. It makes no difference if the taking occurs
all at once, or on several occasions. The trial court did not
rely on the amount of the money taken, a recognized aggravating
factor, in imposing the consecutive terms. Instead, the court
expressly relied on the fact that the offenses involved
numerous victims and took place on separate occasions. Many of
the counts involved groups of people, some of them elderly and
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some of them students.
Hansen, 2010 WL 4739532 at *8.

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The Court of Appeal’s conclusion was not objectively

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unreasonable.

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that the crimes to which Petitioner pleaded guilty involved separate

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events targeting separate victims, and that, overall, a large amount

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of money was taken.

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that the consecutive sentences were imposed based on the numerous

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victims and the number of different occasions.

At Petitioner’s sentencing, the trial court indicated

RT 261, 268.

The trial court then specified

RT 268.

Therefore,

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any liberty interest Petitioner had in being sentenced correctly was

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not violated.

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E

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Petitioner’s fifth claim is ineffective assistance of

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counsel for failure to object to the sentencing errors described in

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claims three and four.

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Respondent’s argument that this claim was not exhausted in the state

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court.

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fifth claim was not exhausted.

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In his traverse, Petitioner does not address

Therefore, the Court deems that Petitioner concedes his

On habeas review, a district court may deny an unexhausted

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claim on the merits.

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denied on the merits, notwithstanding the failure of the applicant

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to exhaust state court remedies).

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sentencing error claims.

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ineffective for failing to make meritless objections.

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F.3d at 1273.

28 U.S.C. § 2254(b)(2) (habeas claim may be

As discussed above, Petitioner’s

Trial counsel’s performance was not
Juan H., 408

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Accordingly, Petitioner’s fifth claim is denied.

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V

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Petitioner raises a new claim for the first time in his
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traverse, claiming that the trial court should have stayed his

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sentence under California Penal Code section 654.

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however, is not the proper pleading to raise additional grounds for

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relief.

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additional claims, they should be presented in an amended petition

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or in a statement of additional grounds.

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Only then can the respondent answer the claims and the action can

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proceed.

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Petitioner did not raise it in his petition.

In order for the respondent to be properly advised of

Id.

Cacoperdo, 37 F.3d at 507.

Thus, the section 654 claim is not cognizable because

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A traverse,

CONCLUSION
Based on the foregoing, the Court of Appeal’s denial of

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Petitioner’s claims was not contrary to or an unreasonable

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application of established federal law or an unreasonable

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determination of the facts in light of the evidence presented in the

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state court proceeding.

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habeas corpus is DENIED.

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Therefore, the petition for a writ of

Further, a Certificate of Appealability is DENIED.

See

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Rule 11(a) of the Rules Governing Section 2254 Cases.

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has not made “a substantial showing of the denial of a

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constitutional right.”

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demonstrated that “reasonable jurists would find the district

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court’s assessment of the constitutional claims debatable or wrong.”

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Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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appeal the denial of a Certificate of Appealability in this Court

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but may seek a certificate from the Court of Appeals under Rule 22

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of the Federal Rules of Appellate Procedure.

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Rules Governing Section 2254 Cases.

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28 U.S.C. § 2253(c)(2).

Petitioner

Nor has Petitioner

Petitioner may not

See Rule 11(a) of the

The Clerk is directed to enter Judgment in favor of
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Respondent and against Petitioner, terminate any pending motions as

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moot and close the file.

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IT IS SO ORDERED.

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DATED

04/10/2013
THELTON E. HENDERSON
United States District Judge

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