FILED
NOT FOR PUBLICATION OCT 27 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DEREK SYLVESTER, No. 08-15781
Petitioner - Appellant, D.C. No. 2:03-CV-01301-GEB
v.
MEMORANDUM *
SCOTT P. RAWERS, Warden, Avenal
State Prison; ATTORNEY GENERAL OF
THE STATE OF CALIFORNIA,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Submitted October 19, 2010 **
Before: O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges.
California state prisoner Derek Sylvester appeals from the district court’s
judgment denying his 28 U.S.C. § 2254 petition. We have jurisdiction under 28
U.S.C. § 2253, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Sylvester contends the district court abused its discretion in declining to hold
an evidentiary hearing on his claim. After de novo review, we conclude that the
district court did not abuse its discretion because the record reveals Sylvester was
not diligent in developing the evidence in his state court proceedings. See 28
U.S.C. § 2254(e)(2); Baja v. Ducharme, 187 F.3d 1075, 1079 (9th Cir. 1999).
Sylvester argues that the State has breached his plea agreement by capping
his custody credit eligibility at 15%. The state court’s rejection of this claim was
neither contrary to, nor an unreasonable application of, Santobello v. New York,
404 U.S. 257, 261-62 (1971), nor based on an unreasonable determination of the
facts based on the evidence presented. See 28 U.S.C. § 2254(d).
AFFIRMED.
2 08-15781