                                                                              FILED
                           NOT FOR PUBLICATION                                 JUL 26 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


BRUCE MICHAEL CASAWAY,                           No. 08-35335

              Petitioner - Appellant,            D.C. No. 3:07-cv-05191-RJB

  v.
                                                 MEMORANDUM*
KENNETH QUINN,

              Respondent - Appellee.


                  Appeal from the United States District Court
                     for the Western District of Washington
                 Robert J. Bryan, Senior District Judge, Presiding

                       Argued and Submitted July 16, 2010
                              Seattle, Washington

Before: GRABER and PAEZ, Circuit Judges, and BURNS, District Judge.**

       Bruce Michael Casaway appeals the district court’s denial of his 28 U.S.C.

§ 2254 petition for habeas corpus relief. We have jurisdiction under 28 U.S.C.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Larry A. Burns, United States District Judge for the
Southern District of California, sitting by designation.
§ 2253. We review de novo the district court’s denial of the petition, Gonzalez v.

Brown, 585 F.3d 1202, 1206 (9th Cir. 2009), and we affirm.

      Contrary to Casaway’s assertions, the state courts did not look to the facts

underlying his prior out-of-state convictions in concluding that those convictions

qualified as strikes under the state’s Persistent Offender Accountability Act.

Rather, the state appeals court reached this conclusion solely by comparing the

elements of Casaway’s out-of-state convictions to the elements of strike-eligible

Washington offenses. Because this legal determination that the offenses were

comparable involved no fact-finding, it did not violate Casaway’s Sixth

Amendment right to have facts that could result in an increased penalty proven to a

jury beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 490

(2000). Moreover, if the state court erred in concluding that Casaway’s out-of-

state convictions were legally comparable to Washington strike-eligible offenses,

that error was one of state law and thus is not cognizable on federal habeas review.

See Rhoades v. Henry, 596 F.3d 1170, 1196 (9th Cir. 2010).

      We construe Casaway’s additional argument that his trial counsel was

unconstitutionally ineffective for failing to seek an instruction directing the jury to

evaluate his purported accomplice’s testimony with caution as a motion to expand

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


                                           2
22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104–05 (9th Cir. 1999) (per

curiam).

      AFFIRMED.




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