FILED
NOT FOR PUBLICATION APR 11 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FRANCISCO CABRERA, No. 10-55529
Petitioner - Appellant, D.C. No. 3:09-cv-01330-H-PCL
v.
MEMORANDUM *
JAMES YEATS, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Submitted April 5, 2011 **
Before: B. FLETCHER, CLIFTON, and BEA, Circuit Judges.
California state prisoner Francisco Cabrera appeals pro se 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.
*
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).
Cabrera contends that his right to due process was violated when the district
attorney refiled a rape charge after a magistrate judge had determined there was no
probable cause to support the charge. Cabrera’s challenge appears to relate to the
California Court of Appeal’s application of state law, and therefore is not
cognizable on federal habeas review. See 28 U.S.C. §2254(a); see also Estelle v.
McGuire, 502 U.S. 62, 67 (1991).
To the extent Cabrera raises a cognizable due process claim, the claim fails
because Cabrera received notice of the charges and sufficient evidence supports his
conviction. See Jackson v. Virginia, 443 U.S. 307 (1979); see also De Anda v. City
of Long Beach, 7 F.3d 1418, 1422 (9th Cir. 1993) (stating that a dismissal at a
preliminary hearing is not a final determination of the lack of probable cause).
Accordingly, the state court’s rejection of his claim was not contrary to, or an
unreasonable application of, clearly established federal law, nor was it based on an
unreasonable determination of facts in light of the evidence presented in the state
court proceeding. See 28 U.S.C. § 2254(d).
We construe appellant’s additional arguments as a motion to expand the
certificate of appealability. So construed, the motion is denied. See 9th Cir. R.
22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per
curiam).
2 10-55529
Cabrera’s motion for appointment of counsel is denied.
AFFIRMED.
3 10-55529