                                                                           FILED
                            NOT FOR PUBLICATION                             APR 11 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



FRANCISCO CABRERA,                               No. 10-55529

               Petitioner - Appellant,           D.C. No. 3:09-cv-01330-H-PCL

  v.
                                                 MEMORANDUM *
JAMES YEATS, Warden,

               Respondent - Appellee.



                    Appeal from the United States District Court
                      for the Southern District of California
                     Marilyn L. Huff, District Judge, Presiding

                              Submitted April 5, 2011 **

Before:        B. FLETCHER, CLIFTON, and BEA, Circuit Judges.

       California state prisoner Francisco Cabrera appeals pro se from the district

court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have

jurisdiction under 28 U.S.C. § 2253, and we affirm.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Cabrera contends that his right to due process was violated when the district

attorney refiled a rape charge after a magistrate judge had determined there was no

probable cause to support the charge. Cabrera’s challenge appears to relate to the

California Court of Appeal’s application of state law, and therefore is not

cognizable on federal habeas review. See 28 U.S.C. §2254(a); see also Estelle v.

McGuire, 502 U.S. 62, 67 (1991).

      To the extent Cabrera raises a cognizable due process claim, the claim fails

because Cabrera received notice of the charges and sufficient evidence supports his

conviction. See Jackson v. Virginia, 443 U.S. 307 (1979); see also De Anda v. City

of Long Beach, 7 F.3d 1418, 1422 (9th Cir. 1993) (stating that a dismissal at a

preliminary hearing is not a final determination of the lack of probable cause).

Accordingly, the state court’s rejection of his claim was not contrary to, or an

unreasonable application of, clearly established federal law, nor was it based on an

unreasonable determination of facts in light of the evidence presented in the state

court proceeding. See 28 U.S.C. § 2254(d).

      We construe appellant’s additional arguments as a motion to expand the

certificate of appealability. So construed, the motion is denied. See 9th Cir. R.

22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per

curiam).


                                          2                                    10-55529
Cabrera’s motion for appointment of counsel is denied.

AFFIRMED.




                                  3                      10-55529
