                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 22 2011

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




                            FOR THE NINTH CIRCUIT



CURTIS OWENS,                                    No. 07-16013

               Petitioner - Appellant,           D.C. No. CV-03-05327-LJO

  v.
                                                 MEMORANDUM *
KELLY VAN CLEAVE HARRINGTON,

               Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Eastern District of California
                    Lawrence J. O’Neill, District Judge, Presiding

                           Submitted February 15, 2011 **

Before:        CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.

       California state prisoner Curtis Owens appeals from the district court’s order

denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 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).
      Owens contends that there was insufficient evidence to support his

conviction for burglary. Under Jackson v. Virginia, 443 U.S. 307, 326 (1979), a

court “must presume — even if it does not affirmatively appear in the record —

that the trier of fact resolved any such conflicts in favor of the prosecution, and

must defer to that resolution.” Construing the evidence here in the prosecution’s

favor, a reasonable jury could have concluded that Owens used the screwdriver to

break into the Honda, entered the locked vehicle, and did so with the specific intent

to take someone else’s property permanently. Owens has failed to explain how

obtaining the physical evidence such as the screwdriver, glass, or photographs

would exonerate him. The state court’s rejection of this claim was neither contrary

to, nor involved an unreasonable application of, clearly established federal law.

See 28 U.S.C. § 2254(d)(1); see also Jackson, 443 U.S. at 324.

      Owens contends for the first time on appeal that there was insufficient

evidence to support his convictions for attempted burglary and possession of

burglary tools. This contention was not raised in the district court and we decline

to consider it for the first time on appeal. See Rhoades v. Henry, 598 F.3d 495,

501 & n.7 (9th Cir. 2010).

      Owens also contends that the district court erred by not holding an

evidentiary hearing regarding allegedly destroyed evidence. The district court did


                                           2                                     07-16013
not abuse its discretion by denying the request for a hearing. See Karis v.

Calderon, 283 F.3d 1117, 1126-27 (9th Cir. 2002).

      The request for a remand is denied.

      AFFIRMED.




                                          3                                   07-16013
