* 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. NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
TONY SCOTT GRANTHAM, Petitioner - Appellant,

v. AREF FAKHOURY, Warden, Respondent - Appellee. No. 09-56189 D.C. No. 2:07-cv-01243-DSF-RZ
MEMORANDUM *

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. *** 

# FILED
MAR 16 2012 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 Tony Scott Grantham appeals from the deni al 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 Califor nia Penal Code section 667, subdivisions (b)-(i). On the day of his plea, Grantham wa s sentenced to an agreed-upon sentence of twelve years. Grantham argues that, under Calif ornia law, the maximum term of imprisonment that could have been impo sed 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 fro m four years to six years (and doubled to twelve years) was a finding of aggravati ng 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 offens e to which he pled was actually his third3 felony (or third strike). The considera tion for his plea was th e agreement of the prosecutor to drop the third strike, which would have subjected him to a mandatory minimum sentence of twenty-five years to lif e. Calif. Penal Code § 667(b)-(i). Under these circumstances, it is inconceivable thatGrantham would not have pled guilty if he had been advised that he was waiving his right to ha ve a jury determine whether there was a sufficient aggravating circum stance to justify increasing the maximum sentence from four to six years before d oubling 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 provide d the basis for a finding of aggravating circumstances. Grantham argues that, “[w]hile there we re two strike priors alleged against [him], the record does not provide any indi cation that the dismissed prior conviction allegation would have been found true.” Consequently, he argue s that he “would have received a lower sentence if he had not ac cepted the plea,” and “there is . . . a reasonable probability that [he] would have re jected 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 aware4 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 acknowle dged 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 re quire 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 pr ocedure 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 aggr avating 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 of5 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 “h ad [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 cor pus 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.