Unpublished Disposition, 917 F.2d 566 (9th Cir. 1990)

MEMORANDUM^** 

Salerno appeals the district court's dismissal of his 28 U.S.C. § 2254 habeas petition. We affirm.

Salerno contends that once he had filed his affidavit in support of his recusal motion pursuant to 28 U.S.C. § 144, the district judge should have stopped the proceedings and transferred the matter to another judge for a resolution of the claim of bias and prejudice. The law is to the contrary. The challenged judge should rule on the legal sufficiency of a recusal motion in the first instance. United States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986).

The district court did not err in denying the motion. A district judge's decision not to recuse himself is reviewed for abuse of discretion. Id.at 939. The standard for recusal under 28 U.S.C. § 144 is:

"whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned." ... The alleged prejudice must result from an extrajudicial source....

Id. (citations omitted). Salerno's allegations of bias stem from the district judge's comment made as a result of the government's allegation that Salerno had lied to the state court. Since the alleged bias resulted "solely from information gained in the course of the proceeding [ ]," the source was not extrajudicial. In the Matter of Beverly Hills Bancorp, 752 F.2d 1334, 1341 (9th Cir. 1984).

This court reviews a district court's denial of a petition for writ of habeas corpus de novo. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989).

Salerno contends the Arizona trial court erred in considering as an aggravating factor under Arizona Revised Statutes Annotated Sec. 13-702(A)--(B) his prior conviction when the state had agreed not to allege the prior conviction to enhance the sentencing range under Sec. 13-604 of the Arizona Revised Statutes Annotated. He also argues the trial court erred in considering as an aggravating factor an element of the crime (pecuniary gain). However, the Arizona Court of Appeals, applying Arizona case law, upheld the trial court's sentence. Salerno has failed to demonstrate how these state procedures offend federal law. Accordingly, he has not stated a claim on which relief may be granted. 28 U.S.C. § 2241(c); Rose v. Hodges, 423 U.S. 19, 21 (1975).

Salerno also contends that even if the trial court was allowed to consider his prior conviction under Arizona Revised Statutes Annotated Sec. 13-702(A)-(B), he was not aware of this fact when he signed the plea agreement which dismissed the allegation of prior conviction. He argues his plea was therefore involuntary and in violation of due process.

The plea agreement does not have any limitation on what the trial court may consider as aggravating circumstances. When asked by the trial court whether he discussed the plea agreement with his attorney and understood its consequences, Salerno answered affirmatively. The trial court also informed Salerno that the plea agreement allowed the judge to impose a maximum sentence of ten years. Since Salerno was aware he could be sentenced to ten years under the plea agreement, the court's failure to inform him of the potential aggravation of his sentence was not prejudicial.

Salerno argues statements allegedly made by his attorney about his possible sentence if convicted at trial and his fear of prison violence coerced him into entering the guilty plea. However, when the trial court asked Salerno whether anyone had used force or threats to induce him to plead guilty, Salerno answered negatively. Furthermore, the plea could not have alleviated his fear of prison violence since he still faced a presumptive sentence of five years.

Salerno claims his attorney provided ineffective assistance. To prevail on an ineffective assistance of counsel claim, Salerno must show that the attorney's performance was deficient, and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).

Salerno alleges counsel was incompetent in allowing the trial judge to sentence Salerno on the erroneous assumption Salerno was on probation. Because the judge based his enhancement of the sentence on Salerno's prior criminal record and the commission of the offense for pecuniary gain, not on Salerno's probation status, Salerno has failed to demonstrate prejudice.¹  Salerno contends counsel was deficient in not requesting a presentence hearing when counsel was aware of errors in the presentence report. However, as the district court noted, the trial judge was justified in sentencing Salerno to eight years based on the aggravating circumstance of pecuniary gain alone. Salerno has thus failed to demonstrate prejudice.

Salerno argues counsel was incompetent in allowing the proceedings to continue after Salerno had given the trial court a false name. Again, Salerno has failed to demonstrate prejudice.

Finally, Salerno claims counsel was deficient in failing to inform him of the elements of the charge to which he pled guilty. However, at the plea hearing Salerno stated that he had discussed the plea agreement with counsel, and that he understood the agreement. Since the agreement specifies the nature of the charge, Salerno cannot now argue that he did not understand the charge to which he pled guilty. Furthermore, Salerno has failed to demonstrate a reasonable probability that he would not have pled guilty had counsel informed him of the specific elements of the charge. Hill v. Lockhart, 474 U.S. 52, 59 (1985).

Salerno makes two claims of error under Arizona state law: (1) that the Arizona Court of Appeals erred in striking his pro se reply brief in his direct appeal, and (2) that the Arizona Court of Appeals failed to take the proper time and care in considering his case. Because neither of these claims raises a federal issue, they may not be addressed by this court.

Finally, Salerno claims his plea agreement is void because he entered into it under a false name. This claim is frivolous. The agreement provides that the state may withdraw or the court reject the agreement based on such a misrepresentation.

The district court's denial of the habeas petition is AFFIRMED.