                            NOT FOR PUBLICATION                           FILED
                     UNITED STATES COURT OF APPEALS                       DEC 12 2014
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT


RAY CHESTER LEWIS,                                No. 12-56592

             Petitioner - Appellant,              D.C. No. 2:08-cv-03527-GW

   v.
                                                  MEMORANDUM*
HEIDI M. LACKNER,

             Respondent - Appellee.

                     Appeal from the United States District Court
                        for the Central District of California
                      George H. Wu, District Judge, Presiding

                            Submitted December 5, 2014**

Before:       HAWKINS, McKEOWN, and FRIEDLAND, Circuit Judges.

        California state prisoner Ray Chester Lewis appeals from the district court’s

judgment denying his 28 U.S.C. § 2254 habeas corpus petition. We have

jurisdiction under 28 U.S.C. § 2253. We review de novo a district court’s judgment

denying his 28 U.S.C. § 2254 habeas corpus petition, see Collins v. Runnels, 603

        *
             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).
F.3d 1127, 1130 (9th Cir. 2010), and we affirm.

      As an initial matter, the state argues that Lewis’s claim is procedurally barred.

We do not reach this issue and instead resolve this case on the merits. See Franklin

v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002).

      Lewis contends that his due process rights were violated because his sentence

of 28 years and 8 months was motivated by vindictiveness. Lewis previously

pleaded guilty to various drug and firearm charges and was sentenced to 14 years

imprisonment. After Lewis successfully challenged his guilty plea in a state habeas

proceeding, he was convicted of fewer charges at a jury trial. A different judge

presided over the jury trial and imposed the challenged sentence. The California

Court of Appeal concluded that Lewis failed to show either presumptive or actual

vindictiveness. This decision was not contrary to, or an unreasonable application

of, clearly established federal law, nor an unreasonable determination of the facts.

See 28 U.S.C. § 2254(d); Alabama v. Smith, 490 U.S. 794, 803 (1989) (no

presumption of vindictiveness “where a second sentence imposed after a trial is

heavier than a first sentence imposed after a guilty plea”); Texas v. McCullough, 475

U.S. 134, 140 (1986) (no showing of vindictiveness where “different sentencers

assessed the varying sentences that [defendant] received” and “the second sentencer

                                          2                                    12-56592
provides an on-the-record, wholly logical, non-vindictive reason for the sentence”).

      AFFIRMED.




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