                                                                            FILED
                            NOT FOR PUBLICATION                             APR 16 2014

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



                            FOR THE NINTH CIRCUIT


RODNEY BERNARD BARNO,                             No. 12-56725

              Petitioner - Appellant,             D.C. No. 3:08-cv-02439-WQH-
                                                  BGS
  v.

GEORGE A. NEOTTI, Warden,                         MEMORANDUM*

              Respondent - Appellee.


                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                        Argued and Submitted April 7, 2014
                               Pasadena, California

Before: FERNANDEZ, N.R. SMITH, and MURGUIA, Circuit Judges.

       Petitioner Rodney Barno appeals the district court’s denial of his habeas

petition. We have jurisdiction under 28 U.S.C. § 2253(a), and we affirm.

       First, it is not clearly established that the Sixth Amendment prohibits a

sentencing court from using a defendant’s prior juvenile adjudication to enhance



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
his sentence beyond the statutory maximum. See Boyd v. Newland, 467 F.3d 1139,

1152 (9th Cir. 2004); see also John-Charles v. California, 646 F.3d 1243, 1252-53

(9th Cir. 2011). Therefore, the California Court of Appeal’s determination that

Barno’s Sixth Amendment rights were not violated by the trial court’s

enhancement of his sentence beyond the statutory maximum based on his juvenile

adjudications was not contrary to clearly established federal law.

      Second, it is also not clearly established that the admission of propensity

evidence violates the Due Process Clause of the Fourteenth Amendment. Alberni v.

McDaniel, 458 F.3d 860, 866 (9th Cir. 2006). The California Court of Appeal held

that Barno’s right to a fundamentally fair trial was not violated by the trial court’s

failure to limit the jury’s consideration of uncharged domestic violence evidence to

the domestic violence counts. This decision was not an unreasonable application of

clearly established federal law.

      Third, assuming the existence of a freestanding actual innocence claim, the

California Court of Appeal’s denial of Barno’s actual innocence claim was not

unreasonable because Barno failed to meet the “extraordinarily high” threshold

showing for such a claim. See Herrera v. Collins, 506 U.S. 390, 417 (1993). We

view his family members’ affidavits with suspicion. See id. They also do not

affirmatively prove his innocence. See Carriger v. Stewart, 132 F.3d 463, 477 (9th

Cir. 1997) (en banc).
      Finally, we conclude that the California Court of Appeal’s determination

that Barno was not prejudiced by any alleged errors on his trial counsel’s part was

not unreasonable under Strickland v. Washington, 466 U.S. 668 (1984), in light of

the significant evidence of Barno’s guilt at trial.

      AFFIRMED.
