Summary
rejecting prisoner's argument that his ineffective assistance of counsel claim satisfied the exception to the "in custody" requirement for a sentence enhanced on the basis of a prior conviction obtained without counsel
Summary of this case from Rogers v. GasteloOpinion
No. 06-16561.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed September 27, 2007.
Raymond John Santos, Jr., Corcoran, CA, pro se.
Michael B. Bigleow, Esq., Sacramento, CA, for Petitioner-Appellant.
Janis Shank McLean, Esq., AGCA — Office of the California Attorney General, Sacramento, CA, for Respondents-Appellees.
Appeal from the United States District Court for the Eastern District of California, Frank C. Damrell, District Judge, Presiding. D.C. No. CV-02-1571-FCD/JFM.
Before: CANBY, TASHIMA, and RAWLINSON, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Raymond Santos, a California state prisoner, appeals the denial of his habeas corpus petition brought under 28 U.S.C. § 2254. Santos is serving the sentence imposed following his 1999 conviction for aggravated assault and possession of a prohibited weapon. This sentence was enhanced on the basis of a 1986 burglary conviction. Santos claims that he was denied his Sixth Amendment right to effective assistance of counsel when his state appellate attorney failed to advise him that the 1986 judgment of conviction had been reversed, and this failure resulted in the reinstatement of the 1986 conviction and the subsequent enhancement of his current sentence. As stated by the district court, Santos may not challenge his 1986 conviction because he no longer is in custody for that conviction. See Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 403-04, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001); Nunes v. Ramirez-Palmer, 485 F.3d 432, 443 (9th Cir. 2007), petition for cert. filed (U.S. Aug. 21, 2007) (No. 07-6091). We reject Santos's argument that we should apply an exception for sentences enhanced on the basis of prior convictions obtained without counsel. See Coss, 532 U.S. at 404, 121 S.Ct. 1567.