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SOUCH v. SCHAIVO

No. 01-15487.

289 F.3d 616 (2002)

Gerald Charles SOUCH, Petitioner-Appellant, v. Don SCHAIVO, Deputy Warden, Respondent-Appellee.

United States Court of Appeals, Ninth Circuit.

Filed April 30, 2002.

Attorney(s) appearing for the Case

Gerald Charles Souch, pro se, Florence, AZ, for the petitioner-appellant.

Janet Napolitano, Attorney General, AZ; Randall M. Howe, Chief Counsel, Criminal Appeals Section; Diane M. Ramsey, Assistant Attorney General, Criminal Appeals Section, Phoenix, AZ, for the respondent-appellee.

Before O'SCANNLAIN and TALLMAN, Circuit Judges, and KING, District Judge.

OPINION

O'SCANNLAIN, Circuit Judge.

We must decide whether a state trial court violated the Ex Post Facto Clause by determining that the sentences on multiple counts of conviction would run consecutively, rather than concurrently, under a state statute not yet in effect when the underlying crimes were committed.

I

This case arises out of habeas petitioner Gerald Souch's conviction in Arizona state

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