Mulvihill v. Garcia

113 F. App'x 289

Opinion

MEMORANDUM

**

California state prisoner Stephen Patrick Mulvihill appeals pro se the district court’s denial of his 28 U.S.C. § 2254 petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Mulvihill contends that his due process rights were violated when the California Court of Appeal applied a preponderance of the evidence standard in affirming Mulvihill’s upper term sentence based upon the sentencing court’s finding of aggravating factors. Upon review of the record, we conclude that California Court of Appeal’s resolution of the case was neither contrary to, nor an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1); see also McMillan v. Pennsylvania, 477 U.S. 79, 91-92, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986).¹ Accordingly, the district court properly denied Mulvihill’s habeas petition.

Mulvihill further contends that the district court erred in failing to afford him an evidentiary hearing. We disagree. Mulvihill’s claim can be resolved by reference to state court record. Accordingly, the district court did not abuse its discretion in denying an evidentiary hearing. See Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir.1998).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . The rules announced subsequent to Mulvihill’s conviction and sentence becoming final in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, - U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), do not apply retroactively to cases on collateral review. See Cook v. United States, 386 F.3d 949 (9th Cir.2004) (order); see also United States v. Sanchez-Cervantes, 282 F.3d 664, 671 (9th Cir.2002). Thus, these rules are inapplicable here.