Michael Lee Santos, Petitioner-appellant, v. George Deeds, et al., Respondents-appellees, 947 F.2d 950 (9th Cir. 1991)

MEMORANDUM^** 

Michael Lee Santos, a Nevada state prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. § 2254 habeas corpus petition. We review de novo, Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989), and we affirm.

A state prisoner may obtain a writ of habeas corpus only upon a showing that he or she is being held in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); Engle v. Isaac, 456 U.S. 107, 119 (1982). Such relief is not available when errors in the interpretation or application of state law are alleged. Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). Habeas corpus relief is not available for a formal defect in sentencing procedure absent an accompanying constitutional violation. See Green v. United States, 365 U.S. 301, 306 (1961).

Here, the state trial judge sentenced Santos to ten years for grand larceny with a consecutive ten-year sentence for his status as a habitual criminal. Santos contends that the trial court deprived him of due process and equal protection of the law by giving him two separate sentences on a single conviction. Although the trial judge technically erred in giving Santos two separate sentences, see McGarry v. Fogliani, 370 F.2d 42, 43-44 (9th Cir. 1966) (under Nevada's habitual criminal statute " [t]here is but one offense and one punishment"), Santos failed to show that the error deprived him of due process or equal protection. The record reveals that the trial judge intended to sentence Santos to twenty years in prison. Moreover, the trial judge had the authority to sentence Santos to a single twenty-year term for being a habitual criminal. See Nev.Rev.Stat. § 207.010(1) (1985) (allowing imprisonment of habitual criminals for not less than ten years nor more than twenty years). Because sentencing Santos to a single twenty-year term rather than two ten-year terms would not reduce the amount of time Santos must spend in prison,¹  the formal error in the sentence does not deprive Santos of due process or equal protection of the law. Accordingly, because Santos failed to show that he was deprived of a federal or constitutional right, he is not entitled to federal habeas corpus relief. See 28 U.S.C. § 2254(a); Engle, 456 U.S. at 119; Green, 365 U.S. at 306; Middleton, 768 F.2d at 1085.

AFFIRMED.