Unpublished Disposition, 909 F.2d 1489 (9th Cir. 1990)

MEMORANDUM^** 

Kevin Murphy appeals pro se the district court's denial of his petition for habeas corpus. We have jurisdiction over his appeal under 28 U.S.C. § 1291 (1982). We affirm.

We have evaluated Murphy's contention that his guilty pleas were not voluntary based on his allegations that: (1) he did not waive his rights on the record; (2) he was not informed of the penalties to which he could be subjected; (3) he was not informed that the sentences for burglary and theft could run consecutively; (4) the trial judge did not inform him that he might be designated a dangerous offender; and (5) his guilty pleas were coerced. We find no merit in these allegations and reject Murphy's contention that his guilty pleas were involuntary.

We have also considered Murphy's arguments that: (1) the sentencing judge's rejection of his plea agreement was an abuse of discretion and constituted a violation of his equal protection rights; (2) his right not to incriminate himself was denied; (3) his right to confrontation was denied; (4) his presentence report was biased; (5) his counsel was ineffective; and (6) the procedures by which he and the prosecutor entered into a plea agreement were unconstitutional. We find no merit in any of these contentions.

We reject Murphy's claim that the prosecutor's action in filing for sentence enhancement after the trial judge rejected the plea agreement and Murphy withdrew his plea, and offering to drop the enhancement only if Murphy plead guilty anew, constitutes prosecutorial vindictiveness in violation of the due process clause of the fourteenth amendment. We find that the prosecutor's action in seeking to increase the punishment against Murphy, which occurred pretrial, does not raise a presumption of vindictiveness. See United States v. Goodwin, 457 U.S. 368, 381 (1982); Bordenkircher v. Hayes, 434 U.S. 357, 359-65 (1978). Thus, no violation of due process occurred.

We also reject Murphy's contention that his due process rights were violated because the trial judge relied on erroneous information in sentencing him. Although the trial judge did miscite the number of Murphy's convictions for the preceding ten years, we believe that in imposing the sentence the judge was influenced primarily by the fact that Murphy had multiple convictions, rather than a watermark number like seven convictions as compared to five. This conclusion is strengthened by the balance of the presentence report, which contains other convictions for theft and burglary predating the ten year figure. Thus, we hold that the trial judge's error was immaterial and that no due process violation occurred.

The decision of the district court is affirmed. Murphy's motion to supplement the record on appeal is denied.

AFFIRMED.