Douglas Leroy Pitt v. MARK NOOTH, Superintendent of Snake River Correctional institution

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOUGLAS LEROY PITT,
Petitioner-Appellant,
v.
MARK NOOTH, Superintendent of Snake
River Correctional institution,
Respondent-Appellee.
No. 17-35744
D.C. No. 2:13-cv-01929-BR
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted March 7, 2019
Portland, Oregon
Before: GRABER and BERZON, Circuit Judges, and ROBRENO,** District
Judge.
Petitioner Douglas Pitt timely appeals from the denial of his 28 U.S.C.
§ 2254 petition for a writ of habeas corpus. He argues that the Lane County trial
court’s imposition of a sentence enhanced by prior convictions that were later
FILED
MAR 15 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Eduardo C. Robreno, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.

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overturned violated his due process rights. We review the district court’s decision
de novo. Hurles v. Ryan, 752 F.3d 768, 777 (9th Cir. 2014). We affirm.
Even assuming there is "clearly established" United States Supreme Court
law that supports Petitioner’s proposed rule, see 28 U.S.C. § 2254(d)(1), any error
was harmless. At the 2007 sentencing, the Lane County trial court considered a
multitude of sentencing options and discussed the possibility that the Clatsop
County convictions might be overturned. The court then structured the sentence so
that if the Clatsop County convictions were upheld, Petitioner would, as a practical
matter, be incarcerated for 130 months in addition to what was imposed by the
court in Clatsop County. If the Clatsop County convictions were overturned,
Petitioner would, as a practical matter, be incarcerated for 205 months.
In 2013, the Clatsop County convictions were in fact overturned. Afterward,
Petitioner pleaded no contest to one count of Sexual Abuse in the First Degree.
For that Clatsop County conviction, he was sentenced to 75 months to run
concurrently with his 2007 convictions in Lane County.
In 2014 and 2016, the Lane County trial court received motions from
Petitioner to modify his sentence. These motions disclosed the subsequent
developments in his Clatsop County case. However, despite the Clatsop County
developments, the Lane County trial court’s sentence in 2007 did not automatically
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become an illegal sentence or an improperly premised sentence. Rather, even in
light of Petitioner’s new Clatsop County sentence, the Lane County trial court
could have structured a legal sentence to obtain that same 205-month result given
at the 2007 sentencing hearing.
The Lane County trial court summarily rejected Petitioner’s resentencing
motions. Yet summary rejection was not improper because certain facts militated
against resentencing Petitioner: first, the Lane County trial court’s 2007 sentence
already accounted for the possibility that the Clatsop County convictions could be
overturned; second, the 2007 Lane County sentence remained lawful. Under these
circumstances, the Lane County trial court most likely denied the motion to
resentence because the earlier sentence was still appropriate. Any error in failing
to hold a formal modification proceeding was harmless. See Jones v. Harrington,
829 F.3d 1128, 1141 (9th Cir. 2016) ("[H]abeas relief is only available if the
constitutional error had a ‘substantial and injurious effect or influence’ on the jury
verdict or trial court decision." (quoting Brecht v. Abrahamson, 507 U.S. 619, 623
(1993))).
AFFIRMED.
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