Joshua Moses Hellon v. T. FELKER, Warden and ATTORNEY GENERAL OF THE STATE OF CALIFORNIA

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSHUA MOSES HELLON,
Petitioner - Appellant,
v.
T. FELKER, Warden and ATTORNEY
GENERAL OF THE STATE OF
CALIFORNIA,
Respondents - Appellees.
No. 10-16248
D.C. No. 2:07-cv-01816-LKK
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, District Judge, Presiding
Submitted September 27, 2011**
Before: SILVERMAN, W. FLETCHER, and MURGUIA, Circuit Judges.
California state prisoner Joshua Moses Hellon appeals pro se 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.
FILED
OCT 05 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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10-16248 2
Hellon contends that the prosecutor engaged in vindictive prosecution by
amending the criminal information to add a second strike prior to his trial. The
state court’s rejection of Hellon’s claim of vindictive prosecution was not contrary
to, or an unreasonable application of, clearly established federal law, as determined
by the United States Supreme Court. See 28 U.S.C. § 2254(d)(1); United States v.
Goodwin, 457 U.S. 368, 381-82 (1982) (in cases involving pre-trial charging
decisions, timing of decision alone is insufficient to create presumption of
vindictiveness).
Furthermore, in light of the prosecutor’s explanation for why she did not
initially charge Hellon’s second strike, the state court’s decision was not based on
an unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(2).
Hellon’s motion to expand the record is denied.
AFFIRMED.

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