                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 15 2010

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




                            FOR THE NINTH CIRCUIT



FRANCISCO DUENAS-QUINTERO,                       No. 08-36004

               Petitioner - Appellant,           D.C. No. 6:06-cv-01568-TMC

  v.
                                                 MEMORANDUM *
SHARON BLACKETTER,

               Respondent - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                   Thomas M. Coffin, Magistrate Judge, Presiding

                              Submitted May 25, 2010 **

Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       Oregon state prisoner Francisco Duenas-Quintero 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).
      Duenas-Quintero contends his trial and appellate counsel rendered

ineffective assistance of counsel by failing to object, at trial or contest on appeal, to

judicial fact finding that led to a higher criminal history category and a higher

sentence. Because the sentencing judge was permitted under Oregon law to make

the findings that Duenas-Quintero complains of, counsel’s failure to object did not

amount to deficient performance. Therefore, the Oregon court’s rejection of this

claim was neither contrary to, nor an unreasonable application of, clearly

established Supreme Court law. See 28 U.S.C. § 2254(d)(1); see also Strickland v.

Washington, 466 U.S. 668, 687-88 (1984).

      As Duenas-Quintero acknowledges, his counsel did not render ineffective

assistance by failing to object to factual findings used to impose consecutive

sentences. See Oregon v. Ice, 129 S.Ct. 711, 714-15 (2009).

      AFFIRMED.




                                            2                                     08-36004
