                                                                           FILED
                             NOT FOR PUBLICATION                            SEP 29 2010

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




                             FOR THE NINTH CIRCUIT



JOSHUA AARON KERSHAW,                            No. 08-15300

               Plaintiff - Appellant,            D.C. No. CV-06-01180-DLB

  v.
                                                 MEMORANDUM *
CHARLES HARRISON,

               Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    Dennis L. Beck, Magistrate Judge, Presiding

                           Submitted September 13, 2010 **

Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       California state prisoner Joshua Aaron Kershaw appeals from the district

court’s judgment denying his 28 U.S.C. § 2254 habeas 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).
      Kershaw contends that his Sixth Amendment rights were violated pursuant

to Blakely v. Washington, 542 U.S. 296 (2004), and Cunningham v. California, 549

U.S. 270 (2007), when the state trial court engaged in fact-finding to impose an

upper-term sentence. The California courts denied Kershaw’s 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 district court

erred in concluding that Cunningham announced a new procedural rule of

constitutional law that does not apply retroactively on collateral review. See

Butler, 528 F.3d at 639.

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

Sixth Amendment violation was harmless error. The record indicates that the trial

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

circumstances that Kershaw’s prior convictions were “numerous or increasing in

seriousness” and that Kershaw’s 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 these aggravating


                                          2                                      08-15300
circumstances 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

Kershaw’s sentence. See id. at 648; Hoffman v. Arave, 236 F.3d 523, 540 (9th Cir.

2001).

         AFFIRMED.




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