FILED
NOT FOR PUBLICATION NOV 23 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GERALD TURNER, No. 07-56201
Petitioner - Appellant, D.C. No. CV-04-09408-JVS
v.
MEMORANDUM *
ROBERT HERNANDEZ, Warden,
Richard J. Donovan Correctional Facility,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted October 8, 2009
Pasadena, California
Before: W. FLETCHER and CLIFTON, Circuit Judges, and SINGLETON, **
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable James K. Singleton, United States District Judge for
the District of Alaska, sitting by designation.
Gerald Turner was convicted in California state court of multiple counts
involving two unrelated rapes, both of which also involved kidnapping. Having
exhausted his state court remedies, Turner now challenges the district court’s
decision to deny his petition for habeas relief as to his sentence.
The provisions of the Anti-Terrorism and Effective Death Penalty Act of
1996 (“AEDPA”) apply to a petition for writ of habeas corpus, like Turner’s, filed
in federal court after April 24, 1996. The relevant provision of AEDPA limits the
granting of federal writs of habeas corpus to circumstances where the state
proceedings “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Turner argues that
his sentencing violated the rule from Blakely v. Washington, 542 U.S. 296, 301
(2004), that aggravating factors other than a prior conviction must be found by the
jury beyond a reasonable doubt.
In order to merit habeas relief under the “contrary to” clause of AEDPA, a
petitioner must show not only that the state court failed to apply clearly established
Supreme Court law but also that the error had a substantial or injurious effect on
the sentencing under the standard in Brecht v. Abrahamson, 507 U.S. 619, 637
(1993). “Under that standard, we must grant relief if we are in ‘grave doubt’ as to
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whether a jury would have found the relevant aggravating factors beyond a
reasonable doubt.” Butler v. Curry, 528 F.3d 624, 648 (9th Cir. 2008) (quoting
O’Neal v. McAninch, 513 U.S. 432, 436 (1995)).
Where, as here, the California Supreme Court denies the habeas petition
without comment, we review the opinion by the California Court of Appeal. See
Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991). In this case, the California
Court of Appeal noted errors by the sentencing court but held those errors
harmless. We agree. Although the sentencing court appears to have relied on
some facts that, under Blakely, should ordinarily be found by the jury, we do not
have “grave doubt” that the jury would have found one of several possible
aggravating factors beyond a reasonable doubt. Accordingly, we affirm the district
court’s decision to deny Turner’s habeas petition.
AFFIRMED.
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