                                                                             FILED
                           NOT FOR PUBLICATION                                   JAN 28 2015

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



                           FOR THE NINTH CIRCUIT


    ANTHONY ROBERT MIZNER,                      No. 13-17377

             Petitioner-Appellant,              D.C. No. 3:12-cv-00288-CRB

     v.                                         MEMORANDUM*

    RANDY GROUNDS, Warden,

              Defendant-Appellee.


                 On Appeal from the United States District Court
                      for the Northern District of California
                Charles R.Breyer, Senior District Judge, Presiding

                     Argued and Submitted January 13, 2015
                            San Francisco, California

Before: CLIFTON and NGUYEN, Circuit Judges, and RAKOFF, Senior District
Judge.**




*
      This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
      The Honorable Jed S. Rakoff, Senior District Judge for the U.S. District
Court for the Southern District of New York, sitting by designation.
      Anthony Robert Mizner appeals the district court’s denial of his petition for

a writ of habeas corpus under 28 U.S.C. § 2254. We have jurisdiction pursuant to

28 U.S.C. § 2253, and we affirm.

      Under the Antiterrorism and Effective Death Penalty Act of 1996, we must

deny habeas relief unless Mizner demonstrates that the state court’s decision on the

merits “‘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.’” Runningeagle v. Ryan, 686

F.3d 758, 766 (9th Cir. 2012) (quoting 28 U.S.C. § 2254(d)).

      The California Court of Appeal’s denial of Mizner’s ineffective assistance of

counsel claim was not unreasonable or contrary to federal law. Even if we assume

that Mizner’s counsel committed unprofessional error in failing to move the trial

court to reduce Mizner’s felony conviction to a misdemeanor pursuant to Section

17(b) of the California Penal Code so as to avoid application of California’s “Three

Strikes” law, Cal. Pen. Code § 667(b)–(i), Mizner failed to demonstrate that he was

prejudiced by such error. See Strickland v. Washington, 466 U.S. 668, 694 (1984).

The Court of Appeal reasonably concluded that, in light of Mizner’s “egregious[]”

criminal history and the fact that the trial court had denied his motion to vacate his


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prior “strike” convictions pursuant to Section 1385(a) of the California Penal Code

and People v. Superior Court (Romero), 13 Cal. 4th 497 (1996), the probability

that a Section 17(b) motion would have succeeded was remote.

      Mizner has failed to demonstrate that this conclusion was based on an

unreasonable determination of the facts. Contrary to Mizner’s argument, the Court

of Appeal did not disregard material facts that would have weighed in favor of

granting his Section 17(b) motion. Furthermore, its refusal to take judicial notice of

its previous unpublished opinion in Mizner’s assault case did not render its

construction of the record unreasonable. That opinion left intact Mizner’s previous

assault and arson convictions, and therefore would not have demonstrated that

Mizner had only two previous strikes and seven previous felony convictions, rather

than the three previous strikes and thirteen previous felony convictions that the

Court of Appeal found.

      We decline to expand the certificate of appealability to encompass Mizner’s

uncertified Eighth Amendment claim because no “substantial showing of the denial

of a constitutional right” has been made with respect to this claim. 28 U.S.C. §

2253(c)(2); see Slack v. McDaniel, 529 U.S. 472, 483–85 (2000).

      AFFIRMED.



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