#### Pasquale NIGRO, Petitioner-Appellant, v. M. EVANS, warden, Respondent-Appellee.

No. 09-15277.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 8, 2010.*

Filed Oct. 12, 2010.

Fay Arfa, Esquire, Fay Arfa, A Law Corporation, Los Angeles, CA, Petitioner-Appellant.

Dorian Jung, Deputy Attorney General, AGCA — Office of the California Attorney General, San Francisco, CA, Respondent-Appellee.

Before: THOMPSON, SILVERMAN and McKEOWN, Circuit Judges.

*

 The panel unanimously concludes this case is suitable for decision without oral argument. *See*Fed. R.App. P. 34(a)(2).

MEMORANDUM **

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 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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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,*555 U.S. 160, 129 S.Ct. 711, 717, 172 L.Ed.2d 517 (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 McMillan v. Pennsylvania,*477 U.S. 79, 83-86, 106 S.Ct. 2411, 91 L.Ed.2d 67 (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 *280evidenced by his written plea waiver that he reaffirmed in open court, *see Bradshaw v. Stumpf,*545 U.S. 175, 183, 125 S.Ct. 2398, 162 L.Ed.2d 143 (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 CaLPenal 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, 93 S.Ct. 1602, 36 L.Ed.2d 235 (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.

**

 This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.