                                                                            FILED
                            NOT FOR PUBLICATION                              OCT 27 2010

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




                            FOR THE NINTH CIRCUIT



DEREK SYLVESTER,                                  No. 08-15781

               Petitioner - Appellant,            D.C. No. 2:03-CV-01301-GEB

  v.
                                                  MEMORANDUM *
SCOTT P. RAWERS, Warden, Avenal
State Prison; ATTORNEY GENERAL OF
THE STATE OF CALIFORNIA,

               Respondents - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                   Garland E. Burrell, Jr., District Judge, Presiding

                            Submitted October 19, 2010 **

Before:        O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges.

       California state prisoner Derek Sylvester appeals from the district court’s

judgment denying his 28 U.S.C. § 2254 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).
      Sylvester contends the district court abused its discretion in declining to hold

an evidentiary hearing on his claim. After de novo review, we conclude that the

district court did not abuse its discretion because the record reveals Sylvester was

not diligent in developing the evidence in his state court proceedings. See 28

U.S.C. § 2254(e)(2); Baja v. Ducharme, 187 F.3d 1075, 1079 (9th Cir. 1999).

      Sylvester argues that the State has breached his plea agreement by capping

his custody credit eligibility at 15%. The state court’s rejection of this claim was

neither contrary to, nor an unreasonable application of, Santobello v. New York,

404 U.S. 257, 261-62 (1971), nor based on an unreasonable determination of the

facts based on the evidence presented. See 28 U.S.C. § 2254(d).

      AFFIRMED.




                                           2                                     08-15781
