Francisco DUENAS-QUINTERO, Petitioner-Appellant, v. Sharon BLACKETTER, Respondent-Appellee, 384 F. App'x 564

MEMORANDUM Oregon state prisoner Francisco Due-nas-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. 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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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, — U.S. —, 129 S.Ct. 711, 714-15, 172 L.Ed.2d 517 (2009). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.