Derek Sylvester v. SCOTT P. RAWERS, Warden, Avenal State Prison

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NOT FOR PUBLICATION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
DEREK SYLVESTER,
Petitioner - Appellant,
v.
SCOTT P. RAWERS, Warden, Avenal
State Prison; ATTORNEY GENERAL OF
THE STATE OF CALIFORNIA,
Respondents - Appellees.
No. 08-15781
D.C. No. 2:03-CV-01301-GEB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Submitted October 19, 2010**
Before: O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges.
California state prisoner Derek Sylvester 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.
FILED
OCT 27 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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08-15781 2
Sylvester contends the district court abused its discretion in declining to hold
an evidentiary hearing on his claim. After de novo review, we conclude that the
district court did not abuse its discretion because the record reveals Sylvester was
not diligent in developing the evidence in his state court proceedings. See 28
U.S.C. § 2254(e)(2); Baja v. Ducharme, 187 F.3d 1075, 1079 (9th Cir. 1999).
Sylvester argues that the State has breached his plea agreement by capping
his custody credit eligibility at 15%. The state court’s rejection of this claim was
neither contrary to, nor an unreasonable application of, Santobello v. New York,
404 U.S. 257, 261-62 (1971), nor based on an unreasonable determination of the
facts based on the evidence presented. See 28 U.S.C. § 2254(d).
AFFIRMED.

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