Petek

MEMORANDUM **

Washington state prisoner Stephen Craig Petek appeals pro se the district court’s denial of his 28 U.S.C. § 2254 habeas petition, which challenges his convictions and 134-month sentence for conspiracy, kidnaping, burglary, and assault. We have jurisdiction pursuant to 28 U.S.C. § 2253 (a). Reviewing de novo, Alvarado v. Hill, 252 F.3d 1066, 1068 (9th Cir.2001), we affirm.

Petek contends that trial counsel was constitutionally ineffective because he failed to argue at sentencing that the plea agreement indicated that Petek’s crimes should be treated as the “same criminal conduct” and that this treatment would result in a lower sentencing range than that calculated in the plea agreement. See Rev.Code Wash. § 9.94A.400(l)(a) (West 1988 & Supp.1994) (stating that crimes encompassing the “same criminal conduct” are not counted as priors to each other for the purpose of scoring multiple counts). However, under Washington law it would have been improper for the trial court to treat Petek’s crimes as the same criminal conduct because they lacked identity of time and place, victims, and intent. See id. (stating that crimes encompass the same criminal conduct only if they…