                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 05 2011

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




                            FOR THE NINTH CIRCUIT



JOSHUA MOSES HELLON,                             No. 10-16248

               Petitioner - Appellant,           D.C. No. 2:07-cv-01816-LKK

  v.
                                                 MEMORANDUM *
T. FELKER, Warden and ATTORNEY
GENERAL OF THE STATE OF
CALIFORNIA,

               Respondents - Appellees.



                    Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence K. Karlton, District Judge, Presiding

                          Submitted September 27, 2011 **

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

       California state prisoner Joshua Moses Hellon 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).
      Hellon contends that the prosecutor engaged in vindictive prosecution by

amending the criminal information to add a second strike prior to his trial. The

state court’s rejection of Hellon’s claim of vindictive prosecution was not contrary

to, or an unreasonable application of, clearly established federal law, as determined

by the United States Supreme Court. See 28 U.S.C. § 2254(d)(1); United States v.

Goodwin, 457 U.S. 368, 381-82 (1982) (in cases involving pre-trial charging

decisions, timing of decision alone is insufficient to create presumption of

vindictiveness).

      Furthermore, in light of the prosecutor’s explanation for why she did not

initially charge Hellon’s second strike, the state court’s decision was not based on

an unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(2).

      Hellon’s motion to expand the record is denied.

      AFFIRMED.




                                          2                                    10-16248
