                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAY 17 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MICHAEL T. WHITE,                                No. 15-15327

              Petitioner - Appellant,            D.C. No. 3:13-cv-03917-RS

 v.
                                                 MEMORANDUM*
M. E. SPEARMAN,

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Northern District of California
                     Richard Seeborg, District Judge, Presiding

                             Submitted May 13, 2016**
                              San Francisco, California

Before: McKEOWN, SACK***, and FRIEDLAND, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Robert D. Sack, Senior Circuit Judge for the U.S.
Court of Appeals for the Second Circuit, sitting by designation.
      Michael White appeals the district court’s denial of his federal habeas

petition. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we

affirm.

      White contends that the California trial court violated his due process rights

by enhancing his sentence in contravention of a state washout rule. White

presented this claim in habeas proceedings before the state superior, intermediate

appellate, and supreme courts, and these courts denied his petition. Although the

state courts did not expressly address White’s washout claim, we assume they

adjudicated it on the merits. Harrington v. Richter, 562 U.S. 86, 99 (2011).

Accordingly, the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28

U.S.C. § 2254(d), applies.

      Before the sentencing court, White admitted to the sentence enhancement

allegation under California Penal Code § 667.5(b). Under California law, White

thereby admitted to every element of the sentence enhancement, People v. Thomas,

41 Cal. 3d 837, 844 (1986), including the inapplicability of the section 667.5(b)

washout rule, see People v. Tenner, 6 Cal. 4th 559, 563 (1993) (listing elements of

section 667.5(b), including failure to meet requirements of washout rule). Because

the trial court determined White’s sentence based on White’s own admission, and

not on “materially false or unreliable information” or a “conviction infected by


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constitutional error,” due process was not offended. See Walker v. Endell, 850

F.2d 470, 477 (9th Cir. 1988) (discussing due process requirements in sentencing

context). The state courts’ denial of White’s due process claims was thus neither

contrary to nor an unreasonable application of clearly established federal law. 28

U.S.C. § 2254(d).1

      White also argues that, in violation of his Sixth Amendment rights, he

received ineffective assistance of counsel at his sentencing. White first raised this

issue before the district court in his Traverse. Since White “did not properly raise

this claim in the district court [it is] not cognizable on appeal.” Cacoperdo v.

Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994).

      AFFIRMED.




      1
        We do not address whether the sentencing court correctly applied the
California washout rule in determining White’s sentence. See Estelle v. McGuire,
502 U.S. 62, 67 (1991) (“[I]t is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions. In conducting habeas
review, a federal court is limited to deciding whether a conviction violated the
Constitution, laws, or treaties of the United States.”).

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