                                                                            FILED
                             NOT FOR PUBLICATION                             APR 20 2010

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




                             FOR THE NINTH CIRCUIT



MIGUEL ROSALES,                                  No. 07-56105

               Petitioner - Appellant,           D.C. No. CV-06-02327-JTM

  v.
                                                 MEMORANDUM *
ROBERT A. HOREL, Warden; et al.,

               Respondents - Appellees.



                     Appeal from the United States District Court
                        for the Southern District of California
                      Jeffrey T. Miller, District Judge, Presiding

                              Submitted April 5, 2010 **

Before:        RYMER, McKEOWN, and PAEZ, Circuit Judges.

       California state prisoner Miguel Rosales appeals from the district court’s

judgment 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).
      The California Court of Appeal denied Rosales’ Sixth Amendment challenge

to his upper term sentence “by applying a rule of decision contrary to clearly

established Supreme Court precedent.” See Butler v. Curry, 528 F.3d 624, 640

(9th Cir.), cert. denied 129 S. Ct. 767 (2008); see also 28 U.S.C. § 2254(d);

Cunningham v. California, 549 U.S. 270, 288-89 (2007) (holding that California’s

determinate sentencing law violates the Sixth Amendment). The state’s contention

that Cunningham is a new procedural rule of constitutional law that does not apply

retroactively on collateral review is foreclosed. See Butler, 528 F.3d at 639.

      Applying de novo review to the constitutional claim, see id. at 641, the Sixth

Amendment violation was harmless error. The record discloses that the trial court

imposed the upper term sentence based, in part, upon the aggravating circumstance

that Rosales’ prior performance on probation or parole was unsatisfactory. The

probation report considered by the trial court at sentencing contains ample

evidence to support a jury finding of that aggravating circumstance beyond a

reasonable doubt. The fact that the finding was made by the trial court rather than

the jury did not have a substantial and injurious effect on Rosales’ sentence. See

id. at 648; Hoffman v. Arave, 236 F.3d 523, 540 (9th Cir. 2001).

      AFFIRMED.




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