Opinion
No. 08-56927 D.C. No. 2:05-cv-08641-VAP
10-25-2011
RICHARD HORTON, Petitioner - Appellant, v. KATHLEEN DICKINSON, Warden, Respondent - Appellee
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Before: TROTT, GOULD, and RAWLINSON, Circuit Judges.
California state prisoner Richard Horton 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.
Horton contends that his upper-term sentence violates his Sixth Amendment rights because it was based on aggravating facts found by a judge relying on a probation report, rather than by a jury beyond a reasonable doubt.
The California Court of Appeal's determination that Horton's upper-term sentence is constitutional because it was based on the fact that he served a prior prison term and the fact that he was on probation at the time of the underlying crime was not contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court. See 28 U.S.C. § 2254(d)(1); Kessee v. Mendoza-Powers, 574 F.3d 675, 677 (9th Cir. 2009). Any error related to other judicial fact-finding was harmless, because, under California law, one aggravating factor is sufficient to impose an upper-term sentence. See People v. Black, 41 Cal. 4th 799, 815 (2007); see also Butler v. Curry, 528 F.3d 624, 642-43 (9th Cir. 2008) (explaining that one aggravating factor is sufficient notwithstanding the language of Cal. R. Ct. 4.420(b)).
AFFIRMED.