Larry Redic v. Terri Gonzales, 695 F. App'x 236

Larry Redic, a California prisoner, was convicted of sex offenses and sentenced with consecutive terms based on California Penal Code § 667.6.
Charging document expressly referenced § 667.6(c) (permitting consecutive sentences for multiple offenses against the same victim on the same occasion) but did not expressly notify Redic that the State would seek mandatory consecutive sentences under § 667.6(d) (multiple victims or same victim on separate occasions).
Redic argued his due process rights were violated by lack of notice that the State would seek enhancement under the § 667.6(d) "multiple occasions" theory.
On direct appeal the California Court of Appeal held Redic waived the claim by not objecting at sentencing and, alternatively, rejected the claim on the merits.
Redic filed a federal habeas petition under 28 U.S.C. § 2254; the district court denied relief and this appeal followed.
The Ninth Circuit affirmed, concluding the claim was procedurally defaulted and Redic failed to show cause and prejudice to excuse the default.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether lack of notice in the charging document that the State would seek a § 667.6(d) mandatory consecutive sentence violated due process	Redic: charging document did not give notice of § 667.6(d) multiple-occasions enhancement; due process violation	State: Redic waived the issue by not objecting at sentencing; alternatively, the sentence was permissible under § 667.6(c) which was referenced in the charging document	Court: Claim procedurally defaulted for failure to object; Redic cannot show cause or prejudice; affirmed
Whether ineffective assistance of counsel excuses the procedural default	Redic: counsel failed to object at sentencing (ineffective assistance)	State: counsel need not raise a meritless objection; trial court believed offenses occurred on separate occasions and § 667.6(c) allowed same sentence	Court: IAC cannot be based on failing to raise a meritless argument; counsel could reasonably conclude objection futile

Coleman v. Thompson, 501 U.S. 722 (procedural default requires cause and prejudice to obtain federal review)
Harris v. Reed, 489 U.S. 255 (clarifies when state-court reliance on procedural bars precludes federal review)
Fairbank v. Ayers, 650 F.3d 1243 (Ninth Circuit: California contemporaneous objection rule is an adequate state procedural ground)
Shah v. United States, 878 F.2d 1156 (ineffective-assistance claim cannot rest on counsel's failure to raise a meritless issue)