Michell Cortez v. AREF FAKHOURY, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHELL CORTEZ,
Petitioner - Appellant,
v.
AREF FAKHOURY, Warden,
Respondent - Appellee.
No. 10-56046
D.C. No. 2:10-cv-03396-JFW
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Submitted February 18, 2014**
Before: ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.
California state prisoner Michell Cortez appeals from the district court’s
judgment denying his 28 U.S.C. § 2254 habeas petition challenging his conviction
for two counts of forgery by possessing a blank or unfinished check with the intent
FILED
FEB 26 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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to defraud, in violation of section 475(b) of the California Penal Code. We have
jurisdiction under 28 U.S.C. § 2253, and we affirm.
Cortez contends that his two convictions, based on his possession of two
different individuals’ checks, violate the Double Jeopardy Clause because they
resulted from a single act of possessing blank checks. The state maintains that this
claim is unexhausted. We need not address this issue because Cortez does not
raise a colorable federal claim. See 28 U.S.C. § 2254(b)(2); Cassett v. Stewart, 406
F.3d 614, 623-24 (9th Cir. 2005).
“With respect to cumulative sentences imposed in a single trial, the Double
Jeopardy Clause does no more than prevent the sentencing court from prescribing
greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S.
359, 366 (1983). We are bound by the California Court of Appeal’s determination
in this case that section 475(b) permits treating the possession of checks of two
victims as separate offenses. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per
curiam) (“[A] state court’s interpretation of state law, including one announced on
direct appeal of the challenged conviction, binds a federal court sitting in habeas
corpus.”); Hicks v. Feiock, 485 U.S. 624, 629-30 & n.3 (1988) (federal habeas
court is not at liberty to disregard a California Court of Appeal’s rulings on state
law when the California Supreme Court has denied review).
10-56046 2

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To the extent Cortez contends that his multiple convictions violate state law,
such a challenge is not cognizable on federal habeas review. See Lewis v. Jeffers,
497 U.S. 764, 780 (1990) (“[F]ederal habeas corpus relief does not lie for errors of
state law[.]”).
AFFIRMED.
10-56046 3

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