                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 25 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ARMSTER HAMPTON,                                 No. 09-16031

               Petitioner - Appellant,           D.C. No. 2:07-cv-00550-ALA

  v.
                                                 MEMORANDUM *
MICHAEL S. EVANS, Warden,

               Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    Arthur L. Alarcón, Circuit Judge, Presiding

                            Submitted January 10, 2011 **

Before:        BEEZER, TALLMAN, and CALLAHAN, Circuit Judges.

       California state prisoner Armster Hampton 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).
         Hampton contends that his trial counsel was ineffective for failing to

accurately advise him of his maximum sentence exposure. He contends further

that his counsel’s failure to recommend that he accept a plea offer of eight years

provided the prosecution the opportunity to amend the charges to include a

previous felony.

         The district court did not commit clear error when, after conducting an

evidentiary hearing, it found that Hampton failed to demonstrate “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland v. Washington, 466 U.S. 668,

688 (1984); see also Nunes v. Mueller, 350 F.3d 1045, 1053 (9th Cir. 2003)

(recognizing the right to effective assistance of counsel during plea negotiations).

Further, the state court’s rejection of this claim was not contrary to or an

unreasonable application of clearly established federal law. See 28 U.S.C.

§ 2254(d)(1).

         As Hampton concedes, because the trial court properly relied on at least one

validly found factor in imposing his upper-term sentence, he is not entitled to relief

in his Cunningham claim. See Butler v. Curry, 528 F.3d 624, 648-49 (9th Cir.

2008).

         AFFIRMED.


                                            2                                      09-16031
