NOT FOR PUBLICATION SEP 29 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSHUA AARON KERSHAW, No. 08-15300
Plaintiff - Appellant, D.C. No. CV-06-01180-DLB
Defendant - Appellee.
Appeal from the United States District Court for the Eastern District of California
Dennis L. Beck, Magistrate Judge, Presiding
Submitted September 13, 2010 **
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
California state prisoner Joshua Aaron Kershaw 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).
Kershaw contends that his Sixth Amendment rights were violated pursuant
to Blakely v. Washington, 542 U.S. 296
(2004), and Cunningham v. California, 549 U.S. 270
(2007), when the state trial court engaged in fact-finding to impose an
upper-term sentence. The California courts denied Kershaw's 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
640 (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 district court
erred in concluding that Cunningham announced a new procedural rule of
constitutional law that does not apply retroactively on collateral review. See
Butler, 528 F.3d at 639.
Applying de novo review to the constitutional claim, see id. at 641, any
Sixth Amendment violation was harmless error. The record indicates that the trial
court imposed the upper term sentence based, in part, upon the aggravating
circumstances that Kershaw's prior convictions were "numerous or increasing in
seriousness" and that Kershaw's 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 these aggravating
[End Page 2 08-15300]
circumstances 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
Kershaw's sentence. See id. at 648; Hoffman v. Arave, 236 F.3d 523
, 540 (9th Cir.
[End Page 3 08-15300]