Lewis S. McDaniel v. State of Arizona Attorney General of the State of Arizona
Opinion
Opinion
Lewis McDaniel appeals the denial of his petition for habeas corpus. Our review is de novo. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir.1986). We affirm the district court’s dismissal of McDaniel’s double jeopardy claim.
McDaniel was convicted of first-degree murder, kidnapping and robbery, and sentenced to death for the murder charge, with concurrent terms of nine to ten years and twenty years to life on the kidnapping and robbery convictions respectively. The Arizona Supreme Court, on appeal, commuted McDaniel’s death sentence to life imprisonment and ordered the robbery and kidnapping sentences to be served after the life sentence. 665 P.2d 70 . McDaniel claims the change from concurrent to con secutive sentences violated the double jeopardy clause.
The modification of McDaniel’s sentence may not be fragmented. The effect of the modification as a whole was to reduce rather than increase McDaniel’s punishment. We agree with the Eleventh Circuit that such modification does not violate the double jeopardy clause. Thomas v. Newsome, 821 F.2d 1550, 1556 (11th Cir.1987). In Cuffle v. Goldsmith, 906 F.2d 385, 390-91 (9th Cir.1990), the sentence was changed from life…