Pena-Silva v. Prosper

MEMORANDUM ** California state prisoner Augustine Pena-Silva 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. Pena-Silva contends that his Sixth Amendment rights were violated pursuant to Blakely v. Washington, 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004), and Cunningham v. California, 549 U.S. 270 , 127 S.Ct. 856 , 166 L.Ed.2d 856 (2007), when the state trial court engaged in fact-finding to impose an upper-term sentence. At sentencing, the trial court made the findings that Pena-Silva was on parole at the time of the crimes and that his prior adult convictions were numerous and of increasing seriousness. The California Court of Appeal’s rejection of Pena-Silva’s Sixth Amendment claim based on the prior conviction exception under Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), was not “contrary to, or ... an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254 (d)(1). See Kessee v. Mendoza-Powers, 574 F.3d 675, 678-79 (9th Cir.2009). Because, under Kessee , the state court’s interpretation of the prior conviction exception “does not contravene AEDPA standards,” id. at 678 , Pena-Silva’s challenge to the district court’s harmless error analysis is moot. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.