FILED

NOT FOR PUBLICATION

APR 22 2022

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TED AMPARAN, No. 20-55711

Petitioner-Appellant, D.C. No. 3:18-cv-02522-BTM-WVG v.

M. ELIOT SPEARMAN, Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Southern District of California Barry Ted Moskowitz, District Judge, Presiding

Submitted April 6, 2022** Pasadena, California

Before: SCHROEDER and GRABER, Circuit Judges, and McNAMEE,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Stephen M. McNamee, United States District Judge for the District of Arizona, sitting by designation. Petitioner Ted Amparan appeals the district court’s denial of his petition for

writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act, 28

U.S.C. § 2254. Reviewing de novo, Lopez v. Thompson, 202 F.3d 1110, 1116 (9th

Cir. 2000) (en banc), we affirm.

1. The state court of appeals permissibly found that Amparan was sentenced

under subdivision (c) of California Penal Code Section 667.6. Though the

sentencing court stated initially that it would sentence Amparan under subdivision

(d) only, the court later stated it would “do it under both.” We must afford the

state court deference on questions of fact, Lopez, 202 F.3d at 1116, and Amparan

has not rebutted the presumption of correctness here. Additionally, the court of

appeals’ finding was not unreasonable, and thus does not meet the requirements for

relief under § 2254(d).

2. Amparan’s consecutive sentences under subdivision (c) cannot be the

basis for habeas relief. Under subdivision (c), consecutive sentences are

discretionary, but to impose consecutive sentences, the court is required to provide

a statement of reasons or, at minimum, recognize “that two sentence choices are

involved.” People v. Senior, 5 Cal. Rptr. 2d 14, 24 (Cal. Ct. App. 1992). Here, the

sentencing court did not provide a statement of reasons. But a “trial court’s alleged

failure to list reasons for imposing consecutive sentences” cannot function as the

2 basis for federal habeas relief, Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir.

2002), because the decision to impose sentences “consecutively is a matter of state

criminal procedure and is not within the purview of federal habeas corpus,”

Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (denying habeas

relief where the petitioner argued his due process rights were violated because the

trial court imposed consecutive sentences without explanation).

3. Amparan also asserts, for the first time on appeal, a Sixth Amendment

violation. We decline to consider the issue. See Cacoperdo, 37 F.3d at 507

(“Habeas claims that are not raised before the district court in the petition are not

cognizable on appeal.”).

AFFIRMED.

3