Damion Davis v. Domingo Uribe, Jr., Warden

474 F. App'x 532

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 3, 2012
• Docket: 11-55747
• Status: Unpublished

Opinion

MEMORANDUM **

California state prisoner Damion Davis appeals from the district court’s judgment denying his 28 U.S.C. § 2254 habeas peti tion. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

Davis contends that the state court’s selection of an upper-term sentence on the basis of a fact not found by the jury, namely, that he was on parole at the time of the burglary in this case, was not rendered harmless by the probation report’s uncontested representation that Davis was on parole at the time of the crime. This contention fails. Upon review of the record, we are not left in grave doubt that a jury would have found beyond a reasonable doubt that Davis was on parole at the time that he committed the crime in this case; thus, the district court correctly determined that the Apprendi error was harmless. See Estrella v. Ollison, 668 F.3d 593, 598-600 (9th Cir.2011).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.