                                                                               FILED
1                              NOT FOR PUBLICATION                              JUN 05 2013

                                                                            MOLLY C. DWYER, CLERK
                        UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                                FOR THE NINTH CIRCUIT



    HARALD MARK GALZINSKI,                           No. 11-16472

                  Petitioner-Appellant,              D.C. No. 2:09-cv-02251-LKK-
                                                     JFM
      v.

    MIKE McDONALD,                                   MEMORANDUM *

                  Respondent-Appellee.



                        Appeal from the United States District Court
                           for the Eastern District of California
                       Lawrence K. Karlton, District Judge, Presiding

                           Argued and Submitted April 15, 2013
                                San Francisco, California

    Before: GRABER and CHRISTEN, Circuit Judges, and TUNHEIM, District
    Judge.**

           Petitioner-Appellant Harald Mark Galzinski appeals the district court’s

    denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. We review a

    district court’s denial of a 28 U.S.C. § 2254 petition de novo, McMurtrey v. Ryan,

            *
                 This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
            **
                 The Honorable John R. Tunheim, District Judge for the U.S. District
    Court for the District of Minnesota, sitting by designation.
539 F.3d 1112, 1118 (9th Cir. 2008), and may affirm on any ground supported by

the record, Moran v. McDaniel, 80 F.3d 1261, 1268 (9th Cir. 1996). For the

reasons below, we affirm.

      The operative state court decision for purposes of our review is the

Sacramento Superior Court decision because the state appellate courts affirmed

without comment. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); Barker v.

Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). As a threshold matter, we conclude

that the Superior Court’s rejection of Galzinski’s ineffective assistance of appellate

counsel claim amounted to a decision “on the merits” because the Superior Court

considered the evidence that Galzinski submitted and found that it was insufficient

to establish a constitutional violation. See Lambert v. Blodgett, 393 F.3d 943, 969

(9th Cir. 2004). Thus, our review is governed by the deferential standards of the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See 28 U.S.C.

§ 2254(d).

      Under AEDPA, relief cannot be granted unless the state court’s decision was

(1) “contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States”; or (2)

“based on an unreasonable determination of the facts.” Id. Applying these

deferential standards, we affirm the Superior Court’s rejection of the ineffective


                                          2
assistance of appellate counsel claim. A “fairminded jurist” could find that

Galzinski failed to present evidence about his appellate counsel’s representation

that would have allowed the Superior Court to find that counsel performed

deficiently by failing to raise the Faretta 1 issue. See Harrington v. Richter, 131 S.

Ct. 770, 786 (2011); see also Strickland v. Washington, 466 U.S. 668, 689 (1984)

(“Judicial scrutiny of counsel’s performance must be highly deferential.”); Smith v.

Murray, 477 U.S. 527, 536 (1986) (“Th[e] process of winnowing out weaker

arguments on appeal and focusing on those more likely to prevail, far from being

evidence of incompetence, is the hallmark of effective appellate advocacy.”)

(internal quotation marks omitted).

      Further, even if we reviewed the ineffective assistance of appellate counsel

claim and the underlying Faretta claim de novo,2 we would affirm. We recognize

that the information provided to Galzinski about his potential sentence during the

Faretta colloquy could have been clearer and more thorough. Nonetheless, given

Galzinski’s familiarity with the case and the fact that he was told he faced fifteen

years to life per count on multiple counts and that there were multiple victim


      1
          Faretta v. California, 422 U.S. 806 (1975).
      2
        Respondent argued solely that the decision regarding ineffective assistance
of appellate counsel was on the merits and did not argue, in the alternative, that it
rested on adequate and independent state grounds.

                                           3
enhancements, we conclude that the information provided communicated the range

of possible punishments Galzinski faced and was therefore adequate to support

Galzinski’s waiver. See Iowa v. Tovar, 541 U.S. 77, 81 (2004). Thus, Galzinski

has not demonstrated that any potential deficiency in his counsel’s performance

was prejudicial. See Strickland, 466 U.S. at 694.

      AFFIRMED.




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