Timothy Prince FRANKLIN, Petitioner-Appellant, v. James WALKER, Warden, Respondent-Appellee, 546 F. App'x 722

MEMORANDUM Timothy Prince Franklin appeals from the district court’s order denying his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. §§ 1291 and 2258. “We review de novo the district court’s grant or denial of a 28 U.S.C. § 2254 petition for writ of habeas corpus.” Yee v. Duncan, 463 F.3d 893, 897 (9th Cir.2006) (citation omitted). We affirm.

In the last reasoned decision denying Franklin habeas relief, the reviewing California state court found the “existence of a prior conviction that has not otherwise been used in sentencing renders a defendant eligible for the upper term” under California’s Determinate Sentencing Law, citing People v. Black, 41 Cal.4th 799, 813, 62 Cal.Rptr.3d 569, 161 P.3d 1130 (2007).

According to the state court, “[sjince Petitioner was convicted in 1987 of a narcotics violation and that offense was not used in sentencing, either as a prior strike or as a sentence enhancement, Petitioner was eligible for the upper term[sj.” Regardless whether this is correct as a matter of California sentencing law, the state court’s conclusion did not “result[ ] in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law” or a “decision that was based on an unreasonable determination of the facts in light of the evidence presented.” See 28 U.S.C. § 2254(d).

There was no Sixth Amendment constitutional error in Franklin’s sentence because he was eligible for the upper term based on his prior convictions. See Cunningham, v.

California, 549 U.S. 270, 274-75, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007) (“[Tjhe Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (emphasis added)); Black, 41 Cal.4th at 813, 62 Cal.Rptr.3d 569, 161 P.3d 1130 (“[I]f one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely [v.

Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) ], the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’ ”); see also Cal. Ct. R. 4.421(b)(2) (a sentencing court can impose an upper term sentence if the defendant’s prior convictions are “numerous or of increasing seriousness”). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.