                                                                             FILED
                            NOT FOR PUBLICATION                               AUG 08 2013

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


CLARENCE ROBERTS,                                 No. 12-55886

               Petitioner - Appellant,            D.C. No. 5:10-cv-01360-AHM-SP

  v.
                                                  MEMORANDUM*
MIKE MCDONALD,

               Respondent - Appellee.


                    Appeal from the United States District Court
                        for the Central District of California
                     A. Howard Matz, District Judge, Presiding

                             Submitted August 6, 2013**
                                Pasadena, California

Before: TALLMAN, CLIFTON, and CALLAHAN, Circuit Judges.

       Clarence Roberts appeals the district court’s denial of his petition for a writ

of habeas corpus, arguing that he had a constitutional right to be present at his




        *
             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).
resentencing hearing and that his counsel provided ineffective assistance. We have

jurisdiction under 28 U.S.C. § 2253 and 28 U.S.C. § 1291, and we affirm.1

      1.     Under the Antiterrorism and Effective Death Penalty Act of 1996, 28

U.S.C. § 2254, the California courts reasonably concluded that Roberts did not

have a constitutional right to be present at his resentencing hearing. A defendant

has the right to be present “at any stage of the criminal proceeding that is critical to

its outcome if his presence would contribute to the fairness of the procedure,”

Kentucky v. Stincer, 482 U.S. 730, 745 (1987), but not where the “benefit” of his

presence would be “but a shadow,” Snyder v. Massachusetts, 291 U.S. 97, 106–07

(1934). The California Court of Appeal concluded that, under state law, Roberts

had no right to renew, and the trial court had no discretion to consider, a second

motion requesting that the court strike a prior conviction for purposes of

sentencing (known as a “Romero” motion). See People v. Roberts, 2008 WL

4918216, at *3–4 (Cal. Ct. App. Nov. 18, 2008). This court is bound by those

conclusions. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005).

      Even if the trial court may have retained extremely limited discretion to

dismiss his prior strikes sua sponte, it would not have done so because Roberts was



      1
        Because the parties are familiar with the facts and procedural history, we
do not restate them here except as necessary to explain our decision.

                                           2
clearly not a defendant who was outside the spirit of the Three Strikes Law.

People v. Williams, 17 Cal. 4th 148, 161 (1998); Cal. Penal Code §§ 667(b)–(i),

1170.12(a)–(d). Accordingly, the trial court could only impose a mandatory

sentence and any benefit from Robert’s presence at his resentencing hearing would

have been “but a shadow.”

      Even if Roberts had a right to be present at his resentencing hearing, his

absence was harmless because he failed to show that the sentencing court likely

would have granted a second Romero motion. Specifically, Roberts does not

present any information materially different from what the sentencing judge

originally considered in rejecting Roberts’s first Romero motion.

      2.     Roberts is not entitled to habeas relief for his ineffective assistance of

counsel claim because the California courts reasonably applied Strickland v.

Washington, 466 U.S. 668 (1984). Under the Court of Appeal’s interpretation of

state law, counsel’s performance was not deficient because any effort to pursue

additional Romero-related arguments would have been fruitless. Roberts cannot

show that counsel’s performance prejudiced him because he failed to show that the

sentencing court likely would have granted a second Romero motion.

      AFFIRMED.




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