Hart

MEMORANDUM **

Jewell Lee Hart, an Oregon state prisoner, appeals pro se the district court’s denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus. He contends his sentence is unlawful and he received ineffective assistance of counsel. We have jurisdiction pursuant to 28 U.S.C. § 2253 (a) and we affirm.

Hart was convicted of attempted aggravated murder with a firearm, attempted murder with a firearm, robbery in the first degree, and assault in the first degree after he robbed a customer and shot a security guard at a restaurant in Portland, Oregon. Pursuant to Oregon law, the first two convictions were merged, and Hart was sentenced to serve 120 months for attempted aggravated murder, 36 consecutive months for robbery, and 36 concurrent *172 months for assault. The 120-month sentence included an upward departure of 60 months based on the trial court’s finding that Hart inflicted “permanent injury to the victim.” Hart’s conviction and sentence were affirmed on direct appeal without opinion. State v. Hart, 138 Or.App. 189 , 906 P.2d 870 (1995), rev. denied, 323 Or. 114 , 913 P.2d 1384 (1996). In state post-conviction proceedings, Hart argued the upward departure was…