Victor Estrada, Petitioner-appellant, v. James Gomez; A. Olivarez, Warden, Respondents-appellees, 45 F.3d 435 (9th Cir. 1994)

MEMORANDUM^** 

Victor Estrada, a California state prisoner, appeals pro se the denied of his 28 U.S.C. § 2254 habeas corpus petition challenging his twelve-year sentence imposed following his conviction for six counts of sale or transportation of cocaine. Estrada contends that he was denied due process at sentencing. We have jurisdiction under 28 U.S.C. § 2254, and we affirm.

We review de novo the denial of a habeas petition. Hendricks v. Zenon, 993 F.2d 664, 668 (9th Cir. 1993). "Absent a showing of fundamental unfairness, a state court's misapplication of its own sentencing laws does not justify federal habeas relief." Christian v. Rhode, No. 93-16805, slip op. 14229, 14245 (9th Cir. Nov. 22, 1994); accord Hendricks, 993 F.2d at 674.

Estrada received an upper term of five years imprisonment for Count VII, a consecutive four-year term for a firearm enhancement pursuant to Cal.Penal Code Sec. 12022(c), a consecutive three-year term for a prior conviction enhancement pursuant to Cal.Penal Code Sec. 11370.2(a), and concurrent four-year middle terms for Counts I-V.

Estrada claims that the trial court violated Cal.Penal Code Sec. 1170(b) by using the fact that he was armed both to impose an upper term on Count VII and as the basis for the firearm enhancement. Estrada also claims that in imposing the upper term on Count VII, the trial court improperly relied on the "unproven facts" that he induced others to participate in the crime, and that the crime was premeditated. He claims that the California Court of Appeal denied him due process when it found no proof of inducement and held that the trial court had violated Cal.Penal Code Sec. 1170(b), but determined that these errors were harmless because other valid aggravating factors supported the imposition of an upper term on Count VII.

Under these circumstances, Estrada has not established that the trial court's misapplication of state law resulted in fundamental unfairness. See Christian, slip op. at 14245; Hendricks, 993 F.2d at 674. Accordingly, we affirm the district court's judgment.

AFFIRMED.