                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              DEC 03 2013

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

TIMOTHY PRINCE FRANKLIN,                         No. 10-15411

              Petitioner - Appellant,            D.C. No. 2:08-cv-01276-FCD-
                                                 CHS
  v.

JAMES WALKER, Warden,                            MEMORANDUM*

              Respondent - Appellee.


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

                     Argued and Submitted November 8, 2013
                            San Francisco, California

Before: TASHIMA, W. FLETCHER, and NGUYEN, Circuit Judges.

       Timothy Prince Franklin appeals from the district court’s order denying his

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. We have

jurisdiction under 28 U.S.C. §§ 1291 and 2253. “We review de novo the district




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
court’s grant or denial of a 28 U.S.C. § 2254 petition for writ of habeas corpus.”

Yee v. Duncan, 463 F.3d 893, 897 (9th Cir. 2006) (citation omitted). We affirm.

      In the last reasoned decision denying Franklin habeas relief, the reviewing

California state court found the “existence of a prior conviction that has not

otherwise been used in sentencing renders a defendant eligible for the upper term”

under California’s Determinate Sentencing Law, citing People v. Black, 41 Cal. 4th

799, 813, 62 Cal. Rptr. 3d 569 (2007). According to the state court, “[s]ince

Petitioner was convicted in 1987 of a narcotics violation and that offense was not

used in sentencing, either as a prior strike or as a sentence enhancement, Petitioner

was eligible for the upper term[s].”

      Regardless whether this is correct as a matter of California sentencing law,

the state court’s conclusion did not “result[] in a decision that was contrary to, or

involved an unreasonable application of, clearly established Federal law” or a

“decision that was based on an unreasonable determination of the facts in light of

the evidence presented.” See 28 U.S.C. § 2254(d). There was no Sixth

Amendment constitutional error in Franklin’s sentence because he was eligible for

the upper term based on his prior convictions. See Cunningham v. California, 549

U.S. 270, 274-75 (2007) (“[T]he Federal Constitution’s jury-trial guarantee

proscribes a sentencing scheme that allows a judge to impose a sentence above the


                                           2
statutory maximum based on a fact, other than a prior conviction, not found by a

jury or admitted by the defendant.” (emphasis added)); Black, 41 Cal. 4th at 813

(“[I]f one aggravating circumstance has been established in accordance with the

constitutional requirements set forth in Blakely [v. Washington, 542 U.S. 296

(2004)], the defendant is not ‘legally entitled’ to the middle term sentence, and the

upper term sentence is the ‘statutory maximum.’”); see also Cal. Ct. R. 4.421(b)(2)

(a sentencing court can impose an upper term sentence if the defendant’s prior

convictions are “numerous or of increasing seriousness”).

      AFFIRMED.




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