Tony Scott Grantham v. AREF FAKHOURY, Warden

* 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NOT FOR PUBLICATION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 APPEALS

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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

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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

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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

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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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