Bird

MEMORANDUM **

Petitioner William L. Bird appeals the district court’s order denying his petition for a writ of habeas corpus. We have jurisdiction under 28 U.S.C. § 2253 , and we affirm.

In 2002, Bird was charged with second degree burglary and grand theft. The information alleged he had one strike prior for assault by means of force likely to produce great bodily injury, a violation of California Penal Code section 245(a), and four prison priors. He was found guilty as charged on the burglary and theft counts. He waived jury trial on the strike prior and prison priors and filed a motion to dismiss the strike, arguing that the section 245(a) assault charge is not a strike under section 1192.7(c)(23) (“any felony in which the defendant personally used a dangerous or deadly weapon.”). He also argued that the court could not review the facts of the underlying assault conviction to determine whether he personally used a deadly or dangerous weapon because he was not charged with that and therefore had not had the right to a jury trial on that issue.

After denying the motion to dismiss the strike prior, the court found all the prison priors to be true. It reviewed the preliminary…