Harald Mark Galzinski v. MIKE McDONALD

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.
1 NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HARALD MARK GALZINSKI,
Petitioner-Appellant,
v.
MIKE McDONALD,
Respondent-Appellee.
No. 11-16472
D.C. No. 2:09-cv-02251-LKK-
JFM
MEMORANDUM*
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,
FILED
JUN 05 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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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

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Faretta v. California, 422 U.S. 806 (1975).1
Respondent argued solely that the decision regarding ineffective assistance2
of appellate counsel was on the merits and did not argue, in the alternative, that it
rested on adequate and independent state grounds.
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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 issue. See Harrington v. Richter, 131 S.1
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, we would affirm. We recognize2
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

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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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