Francisco Duenas-Quintero v. Sharon Blacketter , 384 F. App'x 564 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 15 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FRANCISCO DUENAS-QUINTERO, No. 08-36004
Petitioner - Appellant, D.C. No. 6:06-cv-01568-TMC
v.
MEMORANDUM *
SHARON BLACKETTER,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Thomas M. Coffin, Magistrate Judge, Presiding
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Oregon state prisoner Francisco Duenas-Quintero appeals 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).
Duenas-Quintero contends his trial and appellate counsel rendered
ineffective assistance of counsel by failing to object, at trial or contest on appeal, to
judicial fact finding that led to a higher criminal history category and a higher
sentence. Because the sentencing judge was permitted under Oregon law to make
the findings that Duenas-Quintero complains of, counsel’s failure to object did not
amount to deficient performance. Therefore, the Oregon court’s rejection of this
claim was neither contrary to, nor an unreasonable application of, clearly
established Supreme Court law. See 28 U.S.C. § 2254(d)(1); see also Strickland v.
Washington, 466 U.S. 668, 687-88 (1984).
As Duenas-Quintero acknowledges, his counsel did not render ineffective
assistance by failing to object to factual findings used to impose consecutive
sentences. See Oregon v. Ice, 129 S.Ct. 711, 714-15 (2009).
AFFIRMED.
2 08-36004