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Cacoperdo v. Demosthenes

filed: October 4, 1994.

DOMINICK CACOPERDO, PETITIONER-APPELLANT,
v.
PETER DEMOSTHENES; THE ATTORNEY GENERAL OF THE STATE OF NEVADA, RESPONDENTS-APPELLEES.



Appeal from the United States District Court for the District of Nevada. D.C. No. CV-90-00037-ECR. Edward C. Reed, Jr., District Judge, Presiding.

Before: J. Clifford Wallace, Chief Judge, Charles Wiggins, Circuit Judge, and Howard B. Turrentine,*fn* District Judge. Opinion by Chief Judge Wallace.

Author: Wallace

WALLACE, Chief Judge:

Cacoperdo was convicted in Nevada state court of ten counts of sexually assaulting his three teenaged stepdaughters. After unsuccessfully pursuing a direct appeal and state habeas corpus relief, Cacoperdo filed a petition for a writ of habeas corpus in federal district court. He now appeals from the district court's order denying his petition. The district court had jurisdiction under 28 U.S.C. § 2254. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 2253.

To merit federal habeas relief, Cacoperdo must demonstrate that his imprisonment is "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Bashor v. Risley, 730 F.2d 1228, 1232 (9th Cir.) (Bashor), cert. denied, 469 U.S. 838, 83 L. Ed. 2d 77, 105 S. Ct. 137 (1984). We review the district court's denial of Cacoperdo's petition for a writ of habeas corpus de novo. Adams v. Peterson, 968 F.2d 835, 843 (9th Cir. 1992) (en banc), cert. denied, 123 L. Ed. 2d 448, 113 S. Ct. 1818 (1993). We hold that Cacoperdo failed to make the required showing and therefore affirm.

I

Cacoperdo argues that the state trial court violated his due process rights by mechanically sentencing him to life in prison on each count without considering either the different facts and circumstances of each count or the possibility of rehabilitation. This claim was not addressed by the district court.

Cacoperdo argues that the issue was "inartfully pled." This is an understatement. In his pro se federal habeas petition, Cacoperdo did not challenge the state trial court's failure to evaluate individually each count when imposing the sentence or its failure to consider the possibility of rehabilitation. These issues were raised for the first time in a Traverse, which the district court allowed Cacoperdo to file in order "to present additional argument and legal authority, but not to raise substantively new issues or claims."

The district court twice ordered Cacoperdo to file a Statement of Additional Claims or Grounds for Relief, and specifically called his attention to a possible additional claim raised in the Traverse. Despite these two orders, Cacoperdo failed to file either an amended petition or a statement of additional claims. The district court then issued an order limiting review to the petition.

A Traverse is not the proper pleading to raise additional grounds for relief. In order for the State to be properly advised of additional claims, they should be presented in an amended petition or, as ordered in this case, in a statement of additional grounds. Then the State can answer and the action can proceed. We conclude that Cacoperdo did not properly raise this claim in the district court. Habeas claims that are not raised before the district court in the petition are not cognizable on appeal. King v. Rowland, 977 F.2d 1354, 1357 (9th Cir. 1992) (King).

II

Cacoperdo argues that he was denied due process because the state trial court imposed six of the sentences consecutively, without explaining its rationale or giving any authority in support of its decision. The decision whether to impose sentences concurrently or consecutively is a matter of state criminal procedure and is not within the purview of federal habeas corpus. Ramirez v. Arizona, 437 F.2d 119, 120 (9th Cir. 1971).

III

Cacoperdo contends that his sentence constitutes cruel and unusual punishment because he will not be eligible for parole until he has served at least 40 years in prison. This is a severe sentence. But "outside the context of capital punishment, successful challenges to the proportionality of particular sentences will be exceedingly rare." Solem v. Helm, 463 ...


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