                                                                            FILED
                            NOT FOR PUBLICATION                              MAR 08 2012

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




                            FOR THE NINTH CIRCUIT



PABLO CHINA VALLE,                               No. 10-16031

               Petitioner - Appellant,           D.C. No. 2:09-cv-01467-FCD

  v.
                                                 MEMORANDUM *
ANTHONY HEDGPETH, Warden, SVSP;
and MATTHEW CATE,

               Respondents - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                   Frank C. Damrell, Jr., District Judge, Presiding

                           Submitted February 28, 2012 **

Before:        LEAVY, THOMAS, and CHRISTEN, Circuit Judges.

       California state prisoner Pablo China Valle 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).
      Valle’s counsel has filed a brief stating that there are no grounds for relief,

along with a motion to withdraw as counsel of record. We have conducted an

independent review of each of the issues for which the district court granted a

certificate of appealability, and we conclude that there are no arguable grounds for

habeas relief.

      The California Court of Appeal’s determination that the trial court

committed harmless error by leaving out the “distinctively worse” element of the

“planning and sophistication” aggravating factor jury instruction 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).

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

consecutive sentences did not violate his Sixth Amendment rights 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); Oregon v. Ice,

555 U.S. 160, 163-64 (2009); Blakely v. Washington, 542 U.S. 296, 301 (2004).

      Finally, because there is no reasonable probability that the result of the

proceeding would have been different had Valle’s counsel challenged the upper-

term or consecutive sentences, the state court’s denial of Valle’s ineffective

assistance of counsel claim was not contrary to, or an unreasonable application of,


                                           2                                       10-16031
clearly established federal law as determined by the United States Supreme Court.

See 28 U.S.C. § 2254(d)(1); Strickland v. Washington, 466 U.S. 668, 694 (1984).

      Valle’s counsel’s motion to withdraw is GRANTED.

      AFFIRMED.




                                        3                                   10-16031
