                                                                              FILED
                             NOT FOR PUBLICATION                              MAR 16 2012

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



                             FOR THE NINTH CIRCUIT


TONY SCOTT GRANTHAM,                             No. 09-56189

                Petitioner - Appellant,          D.C. No. 2:07-cv-01243-DSF-RZ

  v.
                                                 MEMORANDUM*
AREF FAKHOURY, Warden,

                Respondent - Appellee.


                     Appeal from the United States District Court
                        for the Central District of California
                      Dale S. Fisher, District Judge, Presiding

                            Submitted February 15, 2012**
                                Pasadena, California

Before:         FARRIS and W. FLETCHER, Circuit Judges, and KORMAN,
                Senior District Judge.***




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
          ***
             The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
         Tony Scott Grantham appeals from the denial of his petition for a writ of habeas

corpus. The petition arises out of Grantham’s plea of no contest to first-degree

burglary. In the course of his plea, he admitted that he had a prior felony conviction

that qualified as a “strike” under California Penal Code section 667, subdivisions

(b)-(i). On the day of his plea, Grantham was sentenced to an agreed-upon sentence

of twelve years.

         Grantham argues that, under California law, the maximum term of

imprisonment that could have been imposed based on his plea of guilty was four

years, which, when doubled based on his prior conviction, would have justified a

sentence of eight years. Consistent with the holding of the Supreme Court in

Cunningham v. California, 549 U.S. 270 (2007), Grantham claims that the only way

his sentence could have been increased from four years to six years (and doubled to

twelve years) was a finding of aggravating circumstances, which could only have been

made by a jury. Thus, Grantham argues, before he entered his plea of guilty, he

should have been advised that he was waiving his right to a jury determination of this

issue.

         This defect in the plea allocution does not entitle Grantham to habeas corpus

relief. The record clearly reflects that Grantham pled guilty to an agreed-upon

sentence of twelve years because the offense to which he pled was actually his third


                                             2
felony (or third strike). The consideration for his plea was the agreement of the

prosecutor to drop the third strike, which would have subjected him to a mandatory

minimum sentence of twenty-five years to life. Calif. Penal Code § 667(b)-(i). Under

these circumstances, it is inconceivable that Grantham would not have pled guilty if

he had been advised that he was waiving his right to have a jury determine whether

there was a sufficient aggravating circumstance to justify increasing the maximum

sentence from four to six years before doubling it. Indeed, because this was an

agreed-upon sentence, the judge did not make any such finding and proceeded to

sentence Grantham immediately after the plea, although the fact that this was

Grantham’s third felony would have provided the basis for a finding of aggravating

circumstances.

      Grantham argues that, “[w]hile there were two strike priors alleged against

[him], the record does not provide any indication that the dismissed prior conviction

allegation would have been found true.” Consequently, he argues that he “would have

received a lower sentence if he had not accepted the plea,” and “there is . . . a

reasonable probability that [he] would have rejected that plea if he had been properly

advised of his constitutional rights.” This argument is without merit. While “the

record does not provide any indication that the dismissed prior conviction allegation

[or third strike] would have been found true,” Grantham and his attorney were aware


                                          3
of the nature of that charge, and Grantham chose not to litigate the issue. Instead, he

chose to avoid the likelihood of a twenty-five-year to life sentence by accepting the

agreed-upon sentence of twelve years.

      More significantly, the written plea agreement that Grantham signed

affirmatively acknowledged his awareness of the very rights he claimed he was not

advised of at his plea. Indeed, it contained the following explicit waiver:

      I hereby waive and give up, for all of the charges against me, including
      any prior convictions, special allegations or enhancements, my right to
      a jury trial . . . . (emphasis added)

      Grantham argues that, at the time of the plea, California did not afford a

defendant the right to a jury trial or require proof beyond a reasonable doubt as to the

aggravating factors supporting an upper-term sentence, and that this somehow

undermines the significance of his acknowledgment and waiver. The significance of

the waiver, however, does not turn on any procedure that California may have had in

place at the time of the plea. Instead, it provides compelling evidence that a jury

determination of the existence of aggravating circumstances was not of any

consequence to him.

      We add these brief words regarding the harmless error standard applicable here.

In Henderson v. Morgan, 426 U.S. 637 (1976), the Supreme Court applied a

“harmless beyond a reasonable doubt” standard to a claim of an alleged error of


                                           4
constitutional dimension in a plea allocution. Id. at 647; see also Renzi v. Warden,

U.S. Penitentiary, 792 F.2d 311, 314-15 (2d Cir. 1986). Subsequently, in Brecht v.

Abrahamson, 507 U.S. 619 (1993), the Supreme Court held that the harmless error

standard on habeas review is whether it “had [a] substantial and injurious effect or

influence in determining the jury’s verdict.” Id. at 623 (internal quotations and

citation omitted). A comparable standard is applicable to errors in a plea allocution.

See, e.g., Ruelas v. Wolfenbarger, 580 F.3d 403, 410-13 (6th Cir. 2009); cf. United

States v. Timmreck, 441 U.S. 780, 784 (1979) (holding that a non-constitutional defect

in a plea allocution justifies habeas corpus relief only if the error resulted in “a

‘complete miscarriage of justice’ or in a proceeding ‘inconsistent with the rudimentary

demands of fair procedure.’”); see also Wayne v. Raines, 690 F.2d 685 (9th Cir.

1982). Under any standard, however, the error here was harmless.

      AFFIRMED.




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