                                                                            FILED
                            NOT FOR PUBLICATION                              OCT 12 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS



                            FOR THE NINTH CIRCUIT



PASQUALE NIGRO,                                   No. 09-15277

              Petitioner - Appellant,             D.C. No. 2:05-cv-00712-GEB-
                                                  CHS
  v.

M. EVANS, warden,                                 MEMORANDUM *

              Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    Garland E. Burrell, District Judge, Presiding

                            Submitted October 8, 2010 **
                             San Francisco, California

Before: THOMPSON, SILVERMAN and McKEOWN, Circuit Judges.

       Petitioner Pasquale Nigro appeals the denial of his petition for writ of habeas

corpus, filed pursuant to 28 U.S.C. § 2254. He challenges on various constitutional

grounds the 96-year sentence he received after pleading nolo contendere to 21



        *
             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).
                                         -2-

felony sex offense counts. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and

2253. Because the state courts’ denial of Petitioner’s claims was not “contrary to,

[n]or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1),

and was not “based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding,” id. § 2254(d)(2), we affirm.

      First, we reject Petitioner’s claim that Apprendi v. New Jersey, 530 U.S. 466

(2000), required the trial court to find beyond a reasonable doubt those facts

necessary to impose consecutive sentences. Apprendi does not apply to the

imposition of consecutive sentences. See Oregon v. Ice, 129 S. Ct. 711, 717

(2009). Clearly established Supreme Court law requires sentencing facts to be

proved only by a preponderance where, as here, they do not increase penalties

beyond the statutory maximum. See McMillian v. Pennsylvania, 477 U.S. 79,

83–86 (1986); accord United States v. Berger, 587 F.3d 1038, 1047 (9th Cir. 2009).

The preponderance standard was met here.

      Second, we find unavailing Petitioner’s claim that the trial court violated his

rights to a jury trial and due process by denying his motion to withdraw his plea:

Petitioner’s plea was knowing and voluntary, as evidenced by his written plea

waiver that he reaffirmed in open court, see Bradshaw v. Stumpf, 545 U.S. 175, 183
                                           -3-

(2005); Petitioner has failed to demonstrate clearly and convincingly that he lacked

competence to plead nolo contendere, in light of the ample record evidence to the

contrary, see 28 U.S.C. § 2254(e)(1); and the trial court’s purported failure to

establish a factual basis for the plea despite the stipulation of counsel to the same is

not a constitutional violation absent unusual circumstances not present here, see

Rodriguez v. Ricketts, 777 F.2d 527, 528 (9th Cir. 1985).

      Third, we find meritless Petitioner’s claim that his consecutive sentences

violated the Ex Post Facto Clause. The trial court imposed mandatory consecutive

sentences under Cal. Penal Code § 667.6(d). Although Cal. Penal Code § 1170.1

may have changed since Petitioner committed his crimes, he was sentenced

pursuant to § 667.6(d), which had not.

      Finally, Petitioner’s 2001 nolo contendere plea forecloses him from

collaterally attacking alleged speedy trial violations that occurred more than ten

years before he plead. See Tollett v. Henderson, 411 U.S. 258, 267 (1973); United

States v. Bohn, 956 F.2d 208, 209 (9th Cir. 1992) (per curiam). Similarly, his plea

forecloses his claim of pre-plea ineffective assistance of counsel, which is unrelated

to the plea itself. See Moran v. Godinez, 57 F.3d 690, 700 (9th Cir. 1994).

      AFFIRMED.
