Michael T. White v. M. E. Spearman

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL T. WHITE,
Petitioner - Appellant,
v.
M. E. SPEARMAN,
Respondent - Appellee.
No. 15-15327
D.C. No. 3:13-cv-03917-RS
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
Submitted May 13, 2016**
San Francisco, California
Before: McKEOWN, SACK***, and FRIEDLAND, Circuit Judges.
FILED
MAY 17 2016
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).
*** The Honorable Robert D. Sack, Senior Circuit Judge for the U.S.
Court of Appeals for the Second Circuit, sitting by designation.

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Michael White appeals the district court’s denial of his federal habeas
petition. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we
affirm.
White contends that the California trial court violated his due process rights
by enhancing his sentence in contravention of a state washout rule. White
presented this claim in habeas proceedings before the state superior, intermediate
appellate, and supreme courts, and these courts denied his petition. Although the
state courts did not expressly address White’s washout claim, we assume they
adjudicated it on the merits. Harrington v. Richter, 562 U.S. 86, 99 (2011).
Accordingly, the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28
U.S.C. § 2254(d), applies.
Before the sentencing court, White admitted to the sentence enhancement
allegation under California Penal Code § 667.5(b). Under California law, White
thereby admitted to every element of the sentence enhancement, People v. Thomas,
41 Cal. 3d 837, 844 (1986), including the inapplicability of the section 667.5(b)
washout rule, see People v. Tenner, 6 Cal. 4th 559, 563 (1993) (listing elements of
section 667.5(b), including failure to meet requirements of washout rule). Because
the trial court determined White’s sentence based on White’s own admission, and
not on “materially false or unreliable information” or a “conviction infected by
2

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constitutional error,” due process was not offended. See Walker v. Endell, 850
F.2d 470, 477 (9th Cir. 1988) (discussing due process requirements in sentencing
context). The state courts’ denial of White’s due process claims was thus neither
contrary to nor an unreasonable application of clearly established federal law. 28
U.S.C. § 2254(d).1
White also argues that, in violation of his Sixth Amendment rights, he
received ineffective assistance of counsel at his sentencing. White first raised this
issue before the district court in his Traverse. Since White “did not properly raise
this claim in the district court [it is] not cognizable on appeal.” Cacoperdo v.
Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994).
AFFIRMED.
1 We do not address whether the sentencing court correctly applied the
California washout rule in determining White’s sentence. See Estelle v. McGuire,
502 U.S. 62, 67 (1991) (“[I]t is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions. In conducting habeas
review, a federal court is limited to deciding whether a conviction violated the
Constitution, laws, or treaties of the United States.”).
3

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