Mulvihill

MEMORANDUM **

California state prisoner Stephen Patrick Mulvihill appeals pro se the district *290 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…