Kenneth D. Oxborrow, Petitioner-Appellee/cross-Appellant v. Kenneth O. Eikenberry, Norman Carlson, Respondents-Appellants/cross-Appellees

I.

Appellant Oxborrow pled guilty to four state offenses stemming from his participation in a Ponzi pyramid investment scheme which defrauded approximately 900 to 1,200 investors. After unsuccessfully appealing his sentence to the Washington Supreme Court, Oxborrow filed a habeas corpus petition in the United States District Court for the Eastern District of Washington. The district court held that the admission of information at sentencing did not violate Oxborrow’s due process rights, but found that the imposition of consecutive sentences for counts one and two, which were subject to Washington’s Sentencing Reform Act [“SRA”], constituted an ex post facto application of the sentencing statutes.

Each party appeals from the district court’s judgment. We hold that the habeas corpus petition should have been denied in its entirety. We affirm in part and reverse in part.

II. FACTUAL BACKGROUND:

In August of ,1979, Kenneth Oxborrow began selling commodity investments through the Wheatland Investment Company. Oxborrow promised investors they would receive a return on their investment of two percent per week. Only a small percentage of the money was actually invested in the…