Rodney Barno v. George Neotti , 569 F. App'x 543 ( 2014 )

FILED
NOT FOR PUBLICATION APR 16 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RODNEY BERNARD BARNO, No. 12-56725
Petitioner - Appellant, D.C. No. 3:08-cv-02439-WQH-
BGS
v.
GEORGE A. NEOTTI, Warden, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted April 7, 2014
Pasadena, California
Before: FERNANDEZ, N.R. SMITH, and MURGUIA, Circuit Judges.
Petitioner Rodney Barno appeals the district court’s denial of his habeas
petition. We have jurisdiction under 28 U.S.C. § 2253(a), and we affirm.
First, it is not clearly established that the Sixth Amendment prohibits a
sentencing court from using a defendant’s prior juvenile adjudication to enhance
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
his sentence beyond the statutory maximum. See Boyd v. Newland, 467 F.3d 1139,
1152 (9th Cir. 2004); see also John-Charles v. California, 646 F.3d 1243, 1252-53
(9th Cir. 2011). Therefore, the California Court of Appeal’s determination that
Barno’s Sixth Amendment rights were not violated by the trial court’s
enhancement of his sentence beyond the statutory maximum based on his juvenile
adjudications was not contrary to clearly established federal law.
Second, it is also not clearly established that the admission of propensity
evidence violates the Due Process Clause of the Fourteenth Amendment. Alberni v.
McDaniel, 458 F.3d 860, 866 (9th Cir. 2006). The California Court of Appeal held
that Barno’s right to a fundamentally fair trial was not violated by the trial court’s
failure to limit the jury’s consideration of uncharged domestic violence evidence to
the domestic violence counts. This decision was not an unreasonable application of
clearly established federal law.
Third, assuming the existence of a freestanding actual innocence claim, the
California Court of Appeal’s denial of Barno’s actual innocence claim was not
unreasonable because Barno failed to meet the “extraordinarily high” threshold
showing for such a claim. See Herrera v. Collins, 506 U.S. 390, 417 (1993). We
view his family members’ affidavits with suspicion. See id. They also do not
affirmatively prove his innocence. See Carriger v. Stewart, 132 F.3d 463, 477 (9th
Cir. 1997) (en banc).
Finally, we conclude that the California Court of Appeal’s determination
that Barno was not prejudiced by any alleged errors on his trial counsel’s part was
not unreasonable under Strickland v. Washington, 466 U.S. 668 (1984), in light of
the significant evidence of Barno’s guilt at trial.
AFFIRMED.