899 F. 2d 19 - Olds v. Maass

After being convicted of murder and sentenced to life imprisonment, Olds was convicted of a separate murder and sentenced in a different Oregon court to a consecutive life term. After exhausting his state remedies, Olds petitioned for federal habeas corpus relief in the district court pursuant to 28 U.S.C. Sec. 2254. The district court granted a motion for summary judgment against Olds and dismissed his petition, and Olds appeals. The district court had jurisdiction pursuant to 28 U.S.C. Sec. 2254. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. Sec. 2253. We affirm.

We review a denial of a petition for habeas corpus de novo. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir.1989). To the extent it is necessary to review findings of fact, the clearly erroneous standard applies. Id. In reviewing a district court's denial of a habeas corpus petition, state court factual findings are entitled to a presumption of correctness under 28 U.S.C. Sec. 2254(d). See Hamilton v. Vasquez, 882 F.2d 1469, 1470-71 (9th Cir.1989).

We first consider Olds's contention that the imposition of a consecutive life sentence for his second murder conviction was constitutionally impermissible because consecutive sentencing was not specifically authorized by statute at the time he was sentenced. Although the Oregon statutes specifically authorizing consecutive sentences, Or.Rev.Stat. Secs. 137.122, 137.123 (1989), were not in effect when Olds was sentenced, Oregon courts have repeatedly rejected challenges to their authority to impose consecutive sentences. See Allbee v. Cupp, 716 F.2d 635, 636 n. 3 (9th Cir.1983). Furthermore, we have specifically held that "Oregon courts clearly have the power to impose consecutive sentences for crimes committed at separate times." Roy v. Watson, 669 F.2d 611, 613 (9th Cir.), cert. denied, 457 U.S. 1108 (1982).

Olds was sentenced for two separate murders which he committed at separate times and places. "No statutory authorization is required where ... the acts punished are clearly discrete." Id. "The imposition of consecutive sentences is nothing more than the imposition, for each crime, of the sentence fixed by legislative act. Such sentencing does not constitute usurpation of a legislative function but rather is literal compliance with that which the legislature has prescribed." Id. at 612, quoting Fiero v. McDougall, 648 F.2d 1259, 1260 (9th Cir.), cert. denied, 454 U.S. 933 (1981). There is no constitutional violation arising from the imposition of the consecutive sentence for Olds's separate and distinct crime.

Olds alleges that he was not present when the verdict was returned and that the jury was not polled. At the state post-conviction hearing, his trial attorney testified that Olds was present and that the jury was polled. This state court factual finding is entitled to a presumption of correctness, 28 U.S.C. Sec. 2254(d), and we see no reason to overturn it.

We next consider Olds's contention that the state trial judge's remark about the death penalty at sentencing revealed undue prejudice that violated his right to due process. A trial judge's impartiality cannot be attacked because of remarks which are based upon information and beliefs acquired while acting in his or her judicial capacity. United States v. Monaco, 852 F.2d 1143, 1147 (9th Cir.1988), cert. denied, 109 S.Ct. 864 (1989). Our review of the sentencing hearing reveals that the trial judge's statement was made in response to a comment by Olds, and that the judge's statement was based upon information the judge received while acting in his judicial capacity. The judge's remark could not have prejudiced the verdict or the sentence. The jury had already found Olds guilty, and the judge imposed the mandatory sentence for murder under Oregon law. "[The statement] simply reflect[s] that the judge was appropriately outraged at the enormity of the crime that had taken place...." Id. Olds was not denied due process by the remark.

Olds's final allegation of ineffective assistance of counsel is without merit. To obtain relief for a claim based on ineffective assistance of counsel on habeas corpus review, Olds must demonstrate (1) that his counsel made errors that a reasonably competent attorney acting as a diligent and conscientious advocate would not have made, and (2) prejudice. United States v. Popoola, 881 F.2d 811, 813 (9th Cir.1989), citing Strickland v. Washington, 466 U.S. 668, 686-87 (1984). Olds claims prejudicial error because his counsel at trial failed to raise the arguments Olds has raised on this appeal. However, we have considered and rejected these arguments as unfounded. Consequently, Olds was not denied effective assistance of counsel because there was no basis on which his trial counsel should have objected. Branch v. Cupp, 736 F.2d 533, 537 (9th Cir.1984), cert. denied, 470 U.S. 1056 (1985).

AFFIRMED.

Note: This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Ninth Circuit Rule 36-3.