                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                        FILED
                            FOR THE NINTH CIRCUIT                            OCT 5 2011

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

RONALD HURST,                                    No. 11-15035

               Petitioner - Appellant,           D.C. No. 2:06-cv-00858-RSL

  v.
                                                 MEMORANDUM *
ROSANNE CAMPBELL, Warden;
ATTORNEY GENERAL OF
CALIFORNIA

               Respondents - Appellees.



                    Appeal from the United States District Court
                       for the Eastern District of California
                     Robert S. Lasnik, District Judge, Presiding

                          Submitted September 27, 2011 **

Before:        HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.

       California state prisoner Ronald Hurst appeals pro se 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).
       Hurst contends that his upper-term sentence violates his rights under the

Sixth and Fourteenth Amendments because it was based on aggravating facts that

were not found by a jury beyond a resonable doubt. He further contends that the

district court erred by failing to rule on this claim.

       The California Court of Appeal’s determination that Hurst’s upper-term

sentence is constitutional because it is based on the fact of his prior criminal

convictions was not contrary to, or an unreasonable application of, clearly

established federal law as determined by the Supreme Court. See 28 U.S.C.

§ 2254(d)(1); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Hurst’s

contention that the district court failed to rule on this claim is belied by the record.

       We construe Hurst’s additional arguments as a motion to expand the

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

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

       AFFIRMED.




                                            2                                      11-15035
