                                                                              FILED
                           NOT FOR PUBLICATION                                   SEP 07 2010

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



                            FOR THE NINTH CIRCUIT


RAUL ALVAREZ HERNANDEZ,                          No. 09-15732

              Petitioner - Appellant,            D.C. No. 2:00-cv-00460-FCD-
                                                 GGH
  v.

WILLIAM DUNCAN; PEOPLE OF THE                    MEMORANDUM*
STATE OF CALIFORNIA,

              Respondents - Appellees.


                    Appeal from the United States District Court
                       for the Eastern District of California
                 Frank C. Damrell, Senior District Judge, Presiding

                        Argued and Submitted July 14, 2010
                            San Francisco, California

Before: HUG and M. SMITH, Circuit Judges, and HOGAN, Senior District
Judge.***

       Raul Hernandez (“petitioner”), a California state prisoner, appeals the

district court’s denial of his 28 U.S.C. § 2254 habeas petition. Petitioner was


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        ***
              The Honorable Thomas F. Hogan, Senior United States District Judge
for the District of District of Columbia, sitting by designation.
convicted by a jury of possession of heroin while being an inmate in prison. See

Cal. Penal Code § 4573.6. The jury also determined that petitioner had been

convicted of two prior “serious felonies”—burglary, Cal. Penal Code § 459, and

murder, Cal. Penal Code § 187—within the meaning of California’s three strikes

law. See Cal. Penal Code § 667. Petitioner was sentenced to an indeterminate

term of 25 years-to-life.

      We have jurisdiction under 28 U.S.C. § 2253. We review de novo the

district court’s decision to grant or deny a 28 U.S.C. § 2254 petition and its factual

findings for clear error. McMurtrey v. Ryan, 539 F.3d 1112, 1118 (9th Cir. 2008).

Because petitioner filed his petition after April 24, 1996, we review it under the

Antiterrorism and Effective Death Penalty Act (“AEDPA”) and grant the petition if

the state court decision “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.” 28 U.S.C. § 2254(d);

Byrd v. Lewis, 566 F.3d 855, 859 (9th Cir. 2009). We affirm.

      The California Court of Appeal’s determination that there was sufficient

evidence to find that petitioner’s prior burglary conviction was a “serious felony”

under Cal. Penal Code § 667 was neither contrary to, nor involved an unreasonable


                                          2
application of, clearly established Supreme Court law. At the time petitioner

committed the burglary, burglary of an inhabited dwelling was listed as a “serious

felony.” See Cal. Penal Code § 1192.7(c). Although petitioner’s burglary offense

constituted a “wobbler” under California law, see Cal. Penal Code § 461, it is clear

that petitioner was charged with and pled no contest to felony burglary. The jury

received a copy of the information charging petitioner with a violation of Cal.

Penal Code § 459 to-wit: “burglary, a felony” and the transcript of the change of

plea hearing.1 At the change of plea hearing, petitioner pleaded no contest to

“burglary, a felony,” and stated both that he understood he could receive up to 16

months in state prison and that his conviction was a felony. Because this evidence

is sufficient for any rational trier of fact to conclude that petitioner was convicted

of a serious felony within the meaning of section 667, the state court decision was

not improper. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v.

Qualls, 108 F.3d 1019, 1021-22 (9th Cir. 1997); United States v. Robinson, 967

F.2d 287, 293 (9th Cir. 1992).

      The California Court of Appeal’s decision that petitioner’s trial and

appellate counsel were not ineffective for failing to raise arguments regarding

      1
        Although petitioner does not dispute that his offense involved an inhabited
dwelling, we note that the plea transcript describes the factual basis for the plea as
a residential burglary.

                                           3
insufficiency of the evidence on the burglary conviction was not contrary to, or an

unreasonable application of, clearly established Supreme Court law. Because there

was sufficient evidence for a rational trier of fact to find that petitioner was

convicted of felony burglary, petitioner fails to show deficient performance or

prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

      AFFIRMED.




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