                             NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                        FILED
                             FOR THE NINTH CIRCUIT                           MAR 26 2010

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

 ANTONIO COCA, AKA Anthony                       No. 08-16428
 Alvaras,
                                                 D.C. No. 2:05-CV-00816-JCM
               Petitioner - Appellant,

   v.                                            MEMORANDUM *

 DWIGHT NEVEN,

               Respondent - Appellee.



                     Appeal from the United States District Court
                              for the District of Nevada
                      James C. Mahan, District Judge, Presiding

                             Submitted March 16, 2010 **


Before:        SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.

        Nevada state prisoner Antonio Coca appeals pro se from the district court’s

judgment dismissing his 28 U.S.C. § 2254 habeas petition. We have jurisdiction

          *
             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).

NC/Research
pursuant to 28 U.S.C. § 2253, and we affirm.

       Coca contends that the state court violated the legal principles articulated in

Apprendi v. New Jersey, 530 U.S. 466 (2000), because it considered facts other

than the fact of his prior convictions when it sentenced him pursuant to Nevada’s

habitual criminal statute, Nev. Rev. Stat. § 207.010. Coca’s arguments are

squarely foreclosed by Tilcock v. Budge, 538 F.3d 1138, 1143-45 (9th Cir. 2008).

       Coca further contends that his trial counsel was ineffective for failing to

object to the state court’s alleged Apprendi error. Because Coca’s underlying

Apprendi argument fails, Coca cannot meet his burden under Strickland v.

Washington, 466 U.S. 668 (1984).

       Coca’s letter, received in this court on February 26, 2010, is deemed filed

and is denied as moot.

       AFFIRMED.




NC/Research                                2                                     08-16428
