                                                                            FILED
                             NOT FOR PUBLICATION                             APR 22 2010

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




                             FOR THE NINTH CIRCUIT

ROBERT JOHN CRUZ,                                No. 08-15916

               Petitioner - Appellant,           D.C. No. 3:06-CV-06405-MJJ

  v.
                                                 MEMORANDUM *
ROSANNE CAMPBELL,

               Respondent - Appellee.



                     Appeal from the United States District Court
                       for the Northern District of California
                     Martin J. Jenkins, District Judge, Presiding

                              Submitted April 5, 2010 **

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

       California state prisoner Robert John Cruz 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).
      Cruz contends that the trial court violated his due process rights by failing to

consider his background and character when it denied his motion to dismiss a prior

“strike” conviction, pursuant to California Penal Code § 1385. This contention is

belied by the record. Thus, the California Court of Appeal’s decision rejecting this

claim was not based on an unreasonable determination of the facts in light of the

evidence presented. See 28 U.S.C. § 2254(d)(2).

      Cruz also contends that his sentence of 25 years to life was cruel and

unusual punishment in violation of the Eighth Amendment. The California Court

of Appeal’s decision rejecting this claim was neither contrary to, nor involved an

unreasonable application of, clearly established federal law as determined by the

Supreme Court of the United States. See 28 U.S.C. § 2254(d)(1); see also Ewing v.

California, 538 U.S. 11, 29-31 (2003).

      AFFIRMED.




                                          2                                     08-15916
