                                                                           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                            NOT FOR PUBLICATION                             NOV 23 2009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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