                                                                              FILED
                            NOT FOR PUBLICATION                               JAN 02 2014

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



                             FOR THE NINTH CIRCUIT


ARTHUR JAMES ROSS, JR.,                            No. 10-56297

               Petitioner - Appellant,             D.C. No. 2:09-cv-00965-AG-DTB

  v.
                                                   MEMORANDUM*
J. N. KATAVICH, Warden,

               Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                    Andrew J. Guilford, District Judge, Presiding

                         Argued and Submitted July 10, 2013
                                Pasadena, California

Before: GRABER, RAWLINSON, and WATFORD, Circuit Judges.

       Arthur Ross, Jr. (Ross) appeals the district court’s denial of his petition for

habeas corpus. We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1.     The sentencing court violated Cunningham v. California, 549 U.S.

270, 281-82 (2007), by relying on aggravating factors not found by the jury to

impose sentence. However, the California Court of Appeal affirmed the enhanced

sentence in reliance on an aggravating factor (use of a firearm during the

commission of the crime) that was found beyond a reasonable doubt by the jury.

We review the California Court of Appeal’s decision as the last reasoned decision

from the state courts. See Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011).

Having done so, we conclude that the California Court of Appeal reasonably

applied Cunningham.



      2.     Ross next asserts that the California Court of Appeal impermissibly

considered the use of a firearm as both a sentence enhancement and to impose an

upper term sentence. Tellingly, Ross relies on California Penal Code § 1170(b)

and Rule 4.420(c) of the California Rules of Court as the sources of his claim.

However, claims predicated on state law are not cognizable in federal habeas

proceedings. See Rhoades v. Henry, 638 F.3d 1027, 1053 (9th Cir. 2011), as

amended.




                                          2
      3.      Ross’s claim that the California Court of Appeal unreasonably

rejected his argument that his initial jury waiver was no longer effective on re-

sentencing is similarly premised on state law, namely People v. Solis, 66 Cal. App.

4th 62, 66 (1998). As explained, state law claims are not cognizable in federal

habeas proceedings. See Rhoades, 638 F.3d at 1053.



      4.      In light of our conclusion that no Cunningham error occurred, we

need not address whether any Cunningham error was harmless. See Ghent v.

Woodford, 279 F.3d 1121, 1127 (9th Cir. 2002), as amended (declining to address

an issue that would not affect the ultimate resolution of the case).



      5.      We decline to certify Ross’s claim that the trial court’s denial of

Ross’s motion to sever his trial from that of his co-defendant violated Ross’s right

to a fair trial. We conclude that reasonable jurists would not hold the district

court’s assessment of Ross’s constitutional claim to be “debatable or wrong.”

Ybarra v. McDaniel, 656 F.3d 984, 997 (9th Cir. 2011), cert. denied, 133 S. Ct.

424 (2012).

      AFFIRMED.




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