Rankins

MEMORANDUM **

California state prisoner James Albert Rankins 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.

Rankins contends that his Sixth Amendment rights were violated pursuant to Blakely v. Washington, 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004), and Cunningham v. California, 549 U.S. 270 , 127 S.Ct. 856 , 166 L.Ed.2d 856 (2007), when the state appellate court engaged in fact-finding to impose an upper-term sentence.

Following an independent review of the record, we conclude that the district court did not err in rejecting this claim because the California Supreme Court did not clearly err in applying federal law. See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir.2002). At sentencing, the state court cited to the fact that Rankins was on parole at the time of the instant offense as an aggravating factor supporting an upper-term sentence. See Butler v. Curry, 528 F.3d 624, 638-39 (9th Cir.), cert. denied - U.S. -, 129 S.Ct. 767 , 172 L.Ed.2d 763 (2008) (noting that one factor is sufficient to set the statutory maximum under California law). We have held that the issue…