Ted Amparan v. M. Spearman ( 2022 )

FILED
NOT FOR PUBLICATION
APR 22 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TED AMPARAN, No. 20-55711
Petitioner-Appellant, D.C. No.
3:18-cv-02522-BTM-WVG
v.
M. ELIOT SPEARMAN, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of California
Barry Ted Moskowitz, District Judge, Presiding
Submitted April 6, 2022**
Pasadena, California
Before: SCHROEDER and GRABER, Circuit Judges, and McNAMEE,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Stephen M. McNamee, United States District Judge
for the District of Arizona, sitting by designation.
Petitioner Ted Amparan appeals the district court’s denial of his petition for
writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act, 28
U.S.C. § 2254. Reviewing de novo, Lopez v. Thompson, 202 F.3d 1110, 1116 (9th
Cir. 2000) (en banc), we affirm.
1. The state court of appeals permissibly found that Amparan was sentenced
under subdivision (c) of California Penal Code Section 667.6. Though the
sentencing court stated initially that it would sentence Amparan under subdivision
(d) only, the court later stated it would “do it under both.” We must afford the
state court deference on questions of fact, Lopez, 202 F.3d at 1116, and Amparan
has not rebutted the presumption of correctness here. Additionally, the court of
appeals’ finding was not unreasonable, and thus does not meet the requirements for
relief under § 2254(d).
2. Amparan’s consecutive sentences under subdivision (c) cannot be the
basis for habeas relief. Under subdivision (c), consecutive sentences are
discretionary, but to impose consecutive sentences, the court is required to provide
a statement of reasons or, at minimum, recognize “that two sentence choices are
involved.” People v. Senior, 5 Cal. Rptr. 2d 14, 24 (Cal. Ct. App. 1992). Here, the
sentencing court did not provide a statement of reasons. But a “trial court’s alleged
failure to list reasons for imposing consecutive sentences” cannot function as the
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basis for federal habeas relief, Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir.
2002), because the decision to impose sentences “consecutively is a matter of state
criminal procedure and is not within the purview of federal habeas corpus,”
Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (denying habeas
relief where the petitioner argued his due process rights were violated because the
trial court imposed consecutive sentences without explanation).
3. Amparan also asserts, for the first time on appeal, a Sixth Amendment
violation. We decline to consider the issue. See Cacoperdo, 37 F.3d at 507(“Habeas claims that are not raised before the district court in the petition are not
cognizable on appeal.”).
AFFIRMED.
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