FILED
NOT FOR PUBLICATION SEP 07 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAUL ALVAREZ HERNANDEZ, No. 09-15732
Petitioner - Appellant, D.C. No. 2:00-cv-00460-FCD-
GGH
v.
WILLIAM DUNCAN; PEOPLE OF THE MEMORANDUM*
STATE OF CALIFORNIA,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Senior District Judge, Presiding
Argued and Submitted July 14, 2010
San Francisco, California
Before: HUG and M. SMITH, Circuit Judges, and HOGAN, Senior District
Judge.***
Raul Hernandez (“petitioner”), a California state prisoner, appeals the
district court’s denial of his 28 U.S.C. § 2254 habeas petition. Petitioner was
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
***
The Honorable Thomas F. Hogan, Senior United States District Judge
for the District of District of Columbia, sitting by designation.
convicted by a jury of possession of heroin while being an inmate in prison. See
Cal. Penal Code § 4573.6. The jury also determined that petitioner had been
convicted of two prior “serious felonies”—burglary, Cal. Penal Code § 459, and
murder, Cal. Penal Code § 187—within the meaning of California’s three strikes
law. See Cal. Penal Code § 667. Petitioner was sentenced to an indeterminate
term of 25 years-to-life.
We have jurisdiction under 28 U.S.C. § 2253. We review de novo the
district court’s decision to grant or deny a 28 U.S.C. § 2254 petition and its factual
findings for clear error. McMurtrey v. Ryan, 539 F.3d 1112, 1118 (9th Cir. 2008).
Because petitioner filed his petition after April 24, 1996, we review it under the
Antiterrorism and Effective Death Penalty Act (“AEDPA”) and grant the petition if
the state court decision “was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the
United States” or “was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d);
Byrd v. Lewis, 566 F.3d 855, 859 (9th Cir. 2009). We affirm.
The California Court of Appeal’s determination that there was sufficient
evidence to find that petitioner’s prior burglary conviction was a “serious felony”
under Cal. Penal Code § 667 was neither contrary to, nor involved an unreasonable
2
application of, clearly established Supreme Court law. At the time petitioner
committed the burglary, burglary of an inhabited dwelling was listed as a “serious
felony.” See Cal. Penal Code § 1192.7(c). Although petitioner’s burglary offense
constituted a “wobbler” under California law, see Cal. Penal Code § 461, it is clear
that petitioner was charged with and pled no contest to felony burglary. The jury
received a copy of the information charging petitioner with a violation of Cal.
Penal Code § 459 to-wit: “burglary, a felony” and the transcript of the change of
plea hearing.1 At the change of plea hearing, petitioner pleaded no contest to
“burglary, a felony,” and stated both that he understood he could receive up to 16
months in state prison and that his conviction was a felony. Because this evidence
is sufficient for any rational trier of fact to conclude that petitioner was convicted
of a serious felony within the meaning of section 667, the state court decision was
not improper. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v.
Qualls, 108 F.3d 1019, 1021-22 (9th Cir. 1997); United States v. Robinson, 967
F.2d 287, 293 (9th Cir. 1992).
The California Court of Appeal’s decision that petitioner’s trial and
appellate counsel were not ineffective for failing to raise arguments regarding
1
Although petitioner does not dispute that his offense involved an inhabited
dwelling, we note that the plea transcript describes the factual basis for the plea as
a residential burglary.
3
insufficiency of the evidence on the burglary conviction was not contrary to, or an
unreasonable application of, clearly established Supreme Court law. Because there
was sufficient evidence for a rational trier of fact to find that petitioner was
convicted of felony burglary, petitioner fails to show deficient performance or
prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
AFFIRMED.
4