Cacoperdo v. Demosthenes

• Decision Date: 04 October 1994
• Docket Number: No. 93-15794,93-15794
• Citation: 37 F.3d 504
• Parties: Dominick CACOPERDO, Petitioner-Appellant, v. Peter DEMOSTHENES; The Attorney General of the State of Nevada, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 504

37 F.3d 504

Dominick CACOPERDO, Petitioner-Appellant, v. Peter DEMOSTHENES; The Attorney General of the State of

Nevada, Respondents-Appellees.

No. 93-15794.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted May 13, 1994.

Decided Oct. 4, 1994.

Ana Colon Aebi and John W. Aebi, Aebi & McCarthy, Carson City, NV, for petitioner-appellant.

Robert E. Wieland, Deputy Atty. Gen., Carson City, NV, for respondents-appellees.

Appeal from the United States District Court for the District of Nevada.

Before: WALLACE, Chief Judge, WIGGINS, Circuit Judge, and TURRENTINE, ^* District Judge.

WALLACE, Chief Judge:

Cacoperdo was convicted in Nevada state court of ten counts of sexually assaulting his three teenaged stepdaughters. After unsuccessfully pursuing a direct appeal and state habeas corpus relief, Cacoperdo filed a petition for a writ of habeas corpus in federal district court. He now appeals from the district court's order denying his petition. The district court had jurisdiction under 28 U.S.C. Sec. 2254. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. Sec. 2253.

To merit federal habeas relief, Cacoperdo must demonstrate that his imprisonment is "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. Sec. 2254(a); Bashor v. Risley, 730 F.2d 1228, 1232 (9th Cir.) (Bashor ), cert. denied, 469 U.S. 838, 105 S.Ct. 137, 83 L.Ed.2d 77 (1984). We review the district court's denial of Cacoperdo's petition for a writ of habeas corpus de novo. Adams v. Peterson, 968 F.2d 835, 843 (9th Cir.1992) (en banc), cert. denied, --- U.S. ----, 113 S.Ct. 1818, 123 L.Ed.2d 448 (1993). We hold that Cacoperdo failed to make the required showing and therefore affirm.

I

Cacoperdo argues that the state trial court violated his due process rights by mechanically sentencing him to life in prison on each count without considering either the different facts and circumstances of each count or the possibility of rehabilitation. This claim was not addressed by the district court.

Cacoperdo argues that the issue was "inartfully pled." This is an understatement. In his pro se federal habeas petition, Cacoperdo did not challenge the state trial court's failure to evaluate individually each count when imposing the sentence or its failure to consider the possibility of rehabilitation. These issues were raised for the first time in a Traverse, which the district court allowed Cacoperdo to file in order "to present additional argument and legal authority, but not to raise substantively new issues or claims."

The district court twice ordered Cacoperdo to file a Statement of Additional Claims or Grounds for Relief, and specifically called his attention to a possible additional claim raised in the Traverse. Despite these two orders, Cacoperdo failed to file either an amended petition or a statement of additional claims. The district court then issued an order limiting review to the petition.

A Traverse is not the proper pleading to raise additional grounds for relief. In order for the State to be properly advised of additional claims, they should be presented in an amended petition or, as ordered in this case, in a statement of additional grounds. Then the State can answer and the action can proceed. We conclude that Cacoperdo did not properly raise this claim in the district court. Habeas claims that are not raised before the district court in the petition are not cognizable on appeal. King v. Rowland, 977 F.2d 1354, 1357 (9th Cir.1992) (King ).

II

Cacoperdo argues that he was denied due process because the state trial court imposed six of the sentences consecutively, without explaining its rationale or giving any authority in support of its decision. The decision whether to impose sentences concurrently or consecutively is a matter of state criminal procedure and is not within the purview of federal habeas corpus. Ramirez v. Arizona, 437 F.2d 119, 120 (9th Cir.1971).

III

Cacoperdo contends that his sentence constitutes cruel and unusual punishment because he will not be eligible for parole until he has served at least 40 years in prison. This is a severe sentence. But "outside the context of capital punishment, successful challenges to the proportionality of particular sentences will be exceedingly rare." Solem v. Helm, 463 U.S. 277, 289-90, 103 S.Ct. 3001, 3009-10, 77 L.Ed.2d 637 (1983) (internal alterations omitted).

A challenge to the proportionality of a sentence should be analyzed using objective criteria, which include: (1) "the gravity of the offense and the harshness of the penalty"; (2) "the sentences imposed on other criminals in the same jurisdiction"; and may include (3) "the sentences imposed for commission of the same crime in other jurisdictions." Id. at 290-92, 103 S.Ct. at 3009-11.

The Court's most recent opinion addressing proportionality, Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), did not produce a majority opinion on the issue. However, we have held that after Harmelin, "only extreme sentences that are grossly disproportionate to the crime" violate the Eighth Amendment. United States v. Bland, 961 F.2d 123, 129 (9th Cir.) (Bland ) (internal quotations omitted), cert. denied, --- U.S. ----, 113 S.Ct. 170, 121 L.Ed.2d 117 (1992).

Cacoperdo's sentence is neither extreme nor grossly disproportionate to his crimes. Sexual molestation of a child is a very serious offense. Cacoperdo was convicted on ten separate counts, and the record reflects that they were only representative of a pattern of conduct that continued over a six-year period. The impact of these crimes on the lives of the victims is extraordinarily severe. If Cacoperdo is paroled after 40 years, he will have served an average of four years for each count. We conclude that a comparison of the gravity of Cacoperdo's offenses with the harshness of his sentence does not raise an inference of gross disproportionality; therefore, we need not consider the other factors listed in Solem. Bland, 961 F.2d at 129.

IV

Cacoperdo makes several arguments that he received ineffective assistance of counsel in violation of the Sixth Amendment. First, he argues that his counsel's failure to renew his motion for psychiatric evaluation and the lack of advocacy on his behalf during the sentencing hearing constitute ineffective assistance of counsel. Cacoperdo did not raise these arguments in the district court until his Traverse. As we have previously explained, a ground for relief is not properly raised in a Traverse. Because Cacoperdo did not properly raise these claims in the district court, they may not be raised on appeal. King, 977 F.2d at 1357.

Cacoperdo next argues that his counsel's failure to present medical evidence suggesting his lack of sexual drive constituted ineffective assistance. In order to prevail on this claim, Cacoperdo must show (1) that counsel's performance fell below an objective standard of reasonableness; and (2) that, but for counsel's errors, the result would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Id. at 690-91, 104 S.Ct. at 2066. That is certainly true for a decision whether to introduce medical evidence. It is largely a question of professional judgment. Cacoperdo did not show a lack of a thorough investigation of law and facts. He has thus failed to meet his burden on the first prong of the Strickland test.

V

After making their allegations of sexual abuse, Cacoperdo's three stepdaughters were taken out of the home and made wards of the State. Cacoperdo's counsel attempted to interview the three girls because he feared they were being coerced into testifying. His counsel was permitted interviews in the presence of a state welfare official. Subsequently, counsel filed a motion to conduct interviews outside the presence of a state welfare representative because he felt the representative's presence inhibited the girls. This motion was denied at the beginning of Cacoperdo's preliminary hearing.

Following the preliminary hearing, counsel approached one of the stepdaughters, who had been released as a ward of the State so that she could get married, and asked for an interview. She initially consented, but later her husband informed counsel that she had changed her mind because a deputy attorney general had advised her not to speak with defense counsel without first consulting the deputy district attorney. This advice was given on the misunderstanding that the stepdaughter was still a ward of the State.

Prior to trial, Cacoperdo moved to dismiss the charges relating to the third stepdaughter because the State had interfered with Cacoperdo's right of access to her. The deputy district attorney responded that he had no objection to the defense speaking to any witness, including the third stepdaughter, and that he was not contacted by Cacoperdo's counsel in order to resolve the alleged interference. He stated: "If I can do anything to facilitate setting up interviews and assisting the defense in their efforts to interview them [the stepdaughters] and prepare for the case, I'm willing to do that." The trial court denied Cacoperdo's motion to dismiss.

Cacoperdo now argues that he was denied his Sixth Amendment right to compulsory process, as incorporated into the Fourteenth Amendment, and his due process right of access to interview government witnesses.

The Sixth Amendment compulsory process clause "does not by its terms grant to a criminal defendant the right to secure the attendance and testimony of any and all witnesses: it guarantees him compulsory process for obtaining witnesses in his favor." United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982) (Valenzuela-Bernal ) (internal quotations...