FILED
NOT FOR PUBLICATION JAN 02 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARTHUR JAMES ROSS, JR., No. 10-56297
Petitioner - Appellant, D.C. No. 2:09-cv-00965-AG-DTB
v.
MEMORANDUM*
J. N. KATAVICH, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted July 10, 2013
Pasadena, California
Before: GRABER, RAWLINSON, and WATFORD, Circuit Judges.
Arthur Ross, Jr. (Ross) appeals the district court’s denial of his petition for
habeas corpus. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. The sentencing court violated Cunningham v. California, 549 U.S.
270, 281-82 (2007), by relying on aggravating factors not found by the jury to
impose sentence. However, the California Court of Appeal affirmed the enhanced
sentence in reliance on an aggravating factor (use of a firearm during the
commission of the crime) that was found beyond a reasonable doubt by the jury.
We review the California Court of Appeal’s decision as the last reasoned decision
from the state courts. See Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011).
Having done so, we conclude that the California Court of Appeal reasonably
applied Cunningham.
2. Ross next asserts that the California Court of Appeal impermissibly
considered the use of a firearm as both a sentence enhancement and to impose an
upper term sentence. Tellingly, Ross relies on California Penal Code § 1170(b)
and Rule 4.420(c) of the California Rules of Court as the sources of his claim.
However, claims predicated on state law are not cognizable in federal habeas
proceedings. See Rhoades v. Henry, 638 F.3d 1027, 1053 (9th Cir. 2011), as
amended.
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3. Ross’s claim that the California Court of Appeal unreasonably
rejected his argument that his initial jury waiver was no longer effective on re-
sentencing is similarly premised on state law, namely People v. Solis, 66 Cal. App.
4th 62, 66 (1998). As explained, state law claims are not cognizable in federal
habeas proceedings. See Rhoades, 638 F.3d at 1053.
4. In light of our conclusion that no Cunningham error occurred, we
need not address whether any Cunningham error was harmless. See Ghent v.
Woodford, 279 F.3d 1121, 1127 (9th Cir. 2002), as amended (declining to address
an issue that would not affect the ultimate resolution of the case).
5. We decline to certify Ross’s claim that the trial court’s denial of
Ross’s motion to sever his trial from that of his co-defendant violated Ross’s right
to a fair trial. We conclude that reasonable jurists would not hold the district
court’s assessment of Ross’s constitutional claim to be “debatable or wrong.”
Ybarra v. McDaniel, 656 F.3d 984, 997 (9th Cir. 2011), cert. denied, 133 S. Ct.
424 (2012).
AFFIRMED.
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