Lisalda v. Stewart , 78 F. App'x 15 ( 2003 )

MEMORANDUM^**

Arizona state prisoner Robert Lisalda appeals pro se the district court’s denial of his 28 U.S.C. § 2254 petition. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review do novo, see Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), and we affirm.

Lisalda contends that the Arizona state trial court deprived him of due process when it used an 18-year-old prior felony conviction as an aggravating factor during sentencing. He argues that state law only mandates the use of prior convictions up to ten years old. The contention fails. Under Arizona’s sentencing statute judges must consider relatively recent pri- or convictions as aggravating factors, but are not forbidden to consider older ones. See Ariz.Rev.Stat. Ann. § 13-702(C)(11); see also Ariz.Rev.Stat. Ann. § 13-702(0(20) (authorizing consideration of other factors appropriate for a just sentencing decision). Lisalda has therefore failed to identify any error in state law or any fundamental unfairness. See Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994) (recognizing that federal habeas relief is not justified absent a showing of fundamental unfairness).

Accordingly, Lisalda’s contention that his counsel was ineffective by not objecting to the consideration of his prior conviction fails because the trial judge properly considered his prior felonies, and the failure to raise a meritless argument is not deficient performance. See Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Shah v. United States, 878 F.2d 1156, 1162 (9th Cir.1989).

AFFIRMED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.