NOT FOR PUBLICATION APR 20 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MIGUEL ROSALES, No. 07-56105
Petitioner - Appellant, D.C. No. CV-06-02327-JTM
ROBERT A. HOREL, Warden; et al.,
Respondents - Appellees.
Appeal from the United States District Court for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
Submitted April 5, 2010 **
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
California state prisoner Miguel Rosales appeals from the district court's
judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction
pursuant to 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).
The California Court of Appeal denied Rosales' Sixth Amendment challenge
to his upper term sentence "by applying a rule of decision contrary to clearly
established Supreme Court precedent." See Butler v. Curry, 528 F.3d 624
(9th Cir.), cert. denied 129 S. Ct. 767
(2008); see also 28 U.S.C. § 2254(d);
Cunningham v. California, 549 U.S. 270
, 288-89 (2007) (holding that California's
determinate sentencing law violates the Sixth Amendment). The state's contention
that Cunningham is a new procedural rule of constitutional law that does not apply
retroactively on collateral review is foreclosed. See Butler, 528 F.3d at 639.
Applying de novo review to the constitutional claim, see id. at 641, the Sixth
Amendment violation was harmless error. The record discloses that the trial court
imposed the upper term sentence based, in part, upon the aggravating circumstance
that Rosales' prior performance on probation or parole was unsatisfactory. The
probation report considered by the trial court at sentencing contains ample
evidence to support a jury finding of that aggravating circumstance beyond a
reasonable doubt. The fact that the finding was made by the trial court rather than
the jury did not have a substantial and injurious effect on Rosales' sentence. See
id. at 648; Hoffman v. Arave, 236 F.3d 523
, 540 (9th Cir. 2001).
[End Page 2 07-56105]