Buffa v. Belleque

Filing 34

FINDINGS and RECOMMENDATION - I recommend that the Petition for Writ of Habeas Corpus 2254 2 be DENIED, and that a judgment of DISMISSAL be entered. Objections, if any, are due by 10/20/09. If objections are filed, a party may file a response to those objections within 10 days of the filing of the objections. (peg)

IN T H E UNITED STATES DISTRICT C O U R T F O R T H E D I S T R I C T OF O R E G O N MICHAEL SALVATORE BUFFA, C i v i l No. 0 8 - 1 5 6 - A C Petitioner, FINDINGS A N D R E C O M M E N D A T I O N

v.
B R I A N BELLEQUE, Respondent. A N T H O N Y D. BORNSTEIN A s s i s t a n t Federal P u b l i c D e f e n d e r 101 S W M a i n Street S u i t e 1700 P o r t l a n d , O R 97204 Attorney for Petitioner J O H N R. K R O G E R A t t o r n e y General KRISTEN E. B O Y D A s s i s t a n t A t t o r n e y General D e p a t i m e n t o f Justice 1162 COUli Street N E Salem, O R 97301 A t t o m e y s for R e s p o n d e n t

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ACOSTA, Magistrate Judge. Petitioner, a n inmate at the Eastern Oregon Conectional Institution, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Petition for Writ o f Habeas Corpus should be DENIED.

BACKGROUND
O n A p r i 1 2 l , 2000, a C u n y County grand jUly indicted Petitioner o n twenty-six separate charges: (1) ten counts o f Theft in the First Degree; (2) five counts o f Burgi my in the First Degree; (3) four counts o f Felon i n Possession o f a Firearm; (4) three counts o f Unlawful Use o f a Vehicle; (5) three counts o f Criminal M i s c h i e f in the First Degree; and (6) one count o f Criminal M i s c h i e f in the Second Degree. The charges arose from a series o f burglaries and car thefts tlu'oughout southern Oregon from December 1999 through March 2000. Petitioner's case was tried to a jUlY. The jUly convicted Petitioner o f nine counts o f Theft i n the First Degree, tlu'ee counts each o f Unlawful Use o f a Vehicle and F e l o n in Possession o f a Firearm, t w o c o u n t s o f Criminal M i s c h i e f i n t h e S e c o n d D e g r e e , a n d o n e c o u n t o f B u r g l m y i n t h e First Degree. The jUly acquitted Petitioner o n four counts, and the remainder were dismissed on t h e s t a t e ' s motion. During a June 14, 2000, hearing, the trial judge sentenced Petitioner to a total o f 256 months o f imprisonment. The sentence included two departure sentences. On the Burglmy in the First Degree conviction, the trial j u d g e departed upward from a presumptive sentencing guideline range o f 35-40 months and imposed 80 months o f imprisonment. O n one o f t h e F e l o n i n

P o s s e s s i o n c h a r g e s , t h e t r i a l j u d g e d e p a r t e d u p w a r d f r o m a p r e s u m p t i v e s e n t e n c i n g g u i d e l i n e range

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of 19-24 months and imposed a sentence o f 48 months. Both departures were based o n the trial c o u r t ' s findings o f persistent involvement in the same offense. The judgment o f conviction and sentence were not entered i n the trial court register until July 19, 2000. Petitioner directly appealed. The Oregon Court o f Appeals affilmed without opinion, and the Oregon Supreme Court denied review. State v. Buffa, 181 Or. App. 1 2 5 , 4 6 P.3d 228, rev.
denied, 334 Or. 288, 49 P.3d 797 (2002).

Petitioner then sought state post-conviction relief ("PCR"). Following an evidentiary hearing, the P C R trial judge denied relief. Petitioner appealed, and the Oregon Court o f Appeals affilmed i n a published decision in Bl!ffa v. Belleque, 214 Or. App. 39, 162 P.3d 376 (2007). The Oregon Supreme Court denied review. Bl!ffa v. Belleque, 343 Or. 690, 174 P.3d 1016 (2007). On Febmary 6, 2008, Petitioner filed his federal habeas corpus action i n this court. Petitioner alleges six grounds for relief: G r o u n d O n e : Trial counsel failed to object to petitioner being shackled at trial, or failed to request a screen to obscure view. S u p p o r t i n g F a c t s : Petitioner proved he was indeed shackled without proper record being made. Affidavits were submitted from trial counsel as well as from the DA. Trial counsel should [have] objected i f proper recording was made the trial counsel could [have] requested a screen to obscure jurors v i e w o f state restraints. G r o u n d T w o : Ineffective assistance o f counsel failed to object to upper depmiure o f sentencing. S u p p o r t i n g F a c t s : Trial counsel was inadequate for failing to recognize that Apprendi created a potential impediment to petitioner's departure sentences. G r o u n d T h r e e : Ineffective assistance o f counsel for not filing a motion to r e c o n s i d e r a t i o n o f sentencing. S u p p o r t i n g F a c t s : Apprendi was decided June 26, 2000. Petitioner's case was entered into record July 17, 2000. By the time petitioner's ju~gment was entered Apprendi was law o f the land.

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Ground F o u r : Ineffective assistance o f appellant counsel. S u p p o r t i n g F a c t s : Defense counsel Jeremiah Scannel moved for a pmiial judgment o f acquittal on count 4 indictment 00CR0275. There was no evidence to support a finding that the dwelling was occupied, evidence created the possibility that the dwelling was occupied, but mere possibility o f an event is insufficient to p e n n i t factfinding to find facts, jury could only have speculated to [whether] M u s s e r ' s dwelling was occupied when the burglary occulTed. The sufficiency o f the evidence [whether] the dwelling was occupied when the burglmy occUlTed was a viable issue that should [have] been raised on appeal. G r o u n d Five: Denied adequate assistance o f appellate counsel. S u p p o r t i n g F a c t s : Trial counsel preserved for review, included a motion to suppress, warrants were obtained by trading evidence that had previously been seized unlawfully. Petitioner's property bags were closed containers that did not disclose contents. Officer seized 4 duffle bags from [Petitioner's] friend without a search walTant o r consent fi'om petitioner. G r o u n d Six: Ineffective assistance o f appellate counsel. S u p p o r t i n g F a c t s : Trial counsel preserved for review, including a motion to controvert challenges the good faith, accurate facts [bears] on good faith o f affidavit, information left out o f second search warrant, and credibility o f these informants were i n question. In his Memorandum o f Law i n Support o f Petition for Writ o f Habeas Corpus, Petitioner addresses only the claim alleged in Ground Two, that trial counsel was constitutionally ineffective i n failing to object to the departure sentences under Apprendi v. New Jersey, 530 U.S. 466 (2000). Respondent argues Petitioner should be denied relief on Grounds One, Three, Four, Five, and Six because he failed to address them in his b r i e f and that, i n any event, these claims are procedurally defaulted. With respect to the claim alleged in Ground Two, Respondent argues the state COUli decision denying P C R relief is entitled to deference, and Petitioner is not entitled to r e l i e f on the merits.

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DISCUSSION

I.

P r o c e d u r a l l y D e f a u l t e d Claims

Respondent argues Petitioner cannot obtain r e l i e f o n the claims alleged i n Grounds One, Three, Four, Five, and Six because counsel for Petitioner submitted no argument in his Memorandum i n Support and, therefore, waived those claims. This court does not agree that counsel's failure to address all o f the claims alleged in the original, p r o se Petition automatically results i n a waiver. District Judge Marsh o f t h i s court addressed this issue in Elkins v. Belleque, CV 06-1180MA: Respondent relies upon 28 U.S.C. § 2248 which provides thatthe allegations o f a return to a habeas petition, o r an answer to an order to show cause, " i f n o t traversed, shall be accepted as h u e except to the extent that the j u d g e finds from the evidence that they are not true." However, the AdvisOlY Committee Notes to Rule 5 o f t h e Rules Governing Section 2254 Proceedings, provides that a traverse is no longer contemplated "except under special circumstances", and that the common law assumption o f verity o f the allegations o f a return until impeached, as codified in 28 U.S.C. § 2248, is no longer applicable." Advisory Committee Note to Rule 5 , 2 8 foIl. § 2254 (1976) (citing Stewart v. Overholser, 186 F.2d 339, 343 n. 5 (D.C. Cir. 1950)). I n light o f the foregoing, and i n the absence o f any case law supporting respondent's position that the failure to finnish legal argument in support o f habeas claims renders the claims abandoned, I decline to find the claims not traversed to be waived or subject to denial o n that basis alone." Opinion and Order (#35) at 5-6. This court finds Judge M a r s h ' s reasoning persuasive and, consequently, rejects Respondent's assertion that Petitioner has waived the grounds for relief not specifically addressed

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in h i s Memorandum in Support. However, having undeliaken a review o f the those claims, the court concludes habeas corpus relief is not wal1'anted because they are procedurally defaulted. The claims alleged in Grounds One and Five were presented t o the P C R trial court and were listed in Petitioner's P C R brief to the Oregon Court o f Appeals. They were not, however, presented i n Petitioner's petition for review to the Oregon Supreme Court. The claims alleged in Grounds T h r e e , F o u r , a n d Six, w h i c h P e t i t i o n e r p r e s e n t e d to t h e P C R t r i a l c o u t i , w e r e n o t i n c l u d e d i n e i t h e r the b r i e f to the Oregon Court o f Appeals or the petition for review to the Oregon Supreme Couti. As such, these claims are procedurally defaulted. Because Petitioner provides no evidence o f cause and prejudice or a fundamental miscal1'iage o f justice t o excuse the procedural default, federal habeas corpus r e l i e f may not be granted o n the claims alleged in Grounds One, Three, Four, Five, and Six.

II.

Relief on t h e M e r i t s
A. Legal Standards

W h e n a p e t i t i o n e r has e x h a u s t e d h i s f e d e r a l c l a i m s , t h i s C o u t i m a y g r a n t a w r i t o f h a b e a s corpus only i f the state court proceeding: (1) resulted in a decision that was contrmyto, or involved a n unreasonable application of, clearly established Federal law, as determined b y the Supreme C o u r t o f t h e U n i t e d S t a t e s ; o r (2) r e s u l t e d i n a d e c i s i o n t h a t w a s b a s e d o n a n u n r e a s o n a b l e detennination o f the facts in light o f the evidence presented in the state c o u t i proceeding. See 28 U.S.C. § 2254(d). Section 2254(d ) ( l ) applies to challenges to purely legal questions resolved b y the state couti, and section 2254(d)(2) applies to purely factual questions resolved by the state court.

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Lambert v. Blodgett, 393 F.3d 943, 978 (9th Cir. 2004), cert. denied, 546 U.S. 963 (2005). Therefore, the question whether a state court e n e d i n applying the l a w is a different question from whether it e n e d in determining the facts. Rice v. Collins, 546 U.S. 333 (2006). In conducting its review, the Court "look[s] t o the last-reasoned state-court decision." Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir. 2003), cert. denied, 541 U.S. 1037 (2004). Section 2254(d)( 1) consists o f two alternative tests, i. e., the "contrary to" test and the "unreasonable application" test. Cordova v. Baca, 346 F.3d 924, 929 (9th Cir. 2003). Under the first test, the state c o u r t ' s "decision is contrmy to clearly established federal l a w i f it fails to apply the c o n e c t controlling authority, or i f it applies the controlling authority to a case involving facts materially indistinguishable from those in a controlling case, b u t nonetheless reaches a different result." Clarkv. ivll11phy, 331 F.3d 1062, 1067 (9th Cir.) (citing Williams v. Taylor, 529 U.S. 362, 413-414 (2000)), cert. denied, 540 U.S. 968 (2003). Under the second test, ' ' ' [ a ] state c o u r t ' s decision involves a n unreasonable application o f federal l a w i f t h e s t a t e c o u r t i d e n t i f i e s t h e c o r r e c t g o v e m i n g l e g a l p r i n c i p l e . . . b u t u n r e a s o n a b l y applies that principle to the facts o f the prisoner's case.'" Van Lynn, 347 F.3d a t 738 (quoting Clark, 331 F J d at 1067). Under the '''u n r e a s o n a b le application clause . . . a federal habeas COUtt may not issue the writ simply because that COUtt concludes in its independent judgment that the relevant state-COUtt decision applied clearly established federal l a w erroneously or inconectly . . . [r]ather that application must be objectively unreasonable.''' Clark, 331 F.3d at 1068 (quoting Lockyer v. Andrade, 538 U.S. 63 (2003)). When evaluating whether the state decision amounts to

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an umeasoriable application o f federal law, " [fjederal coulis owe substantial deference to state cOUli interpretations o f f e d e r a l l a w . " Cordova, 346 F.3d at 929. T h e S i x t h A m e n d m e n t g u a r a n t e e s c r i m i n a l d e f e n d a n t s t h e r i g h t to e f f e c t i v e a s s i s t a n c e o f counsel. The Supreme C o m i ' s ruling i n S t r i c k l a n d v . Washington, 466 U.S. 668 (1984) sets forth t h e " c l e a r l y e s t a b l i s h e d federal l a w " g o v e r n i n g c l a i m s a l l e g i n g i n e f f e c t i v e a s s i s t a n c e o f counsel.

Williams, 529 U.S. a t 390.
Under Strickland, to prevail on a claim o f ineffective assistance o f counsel, Petitioner must s h o w that (1) his c o u n s e l ' s performance was deficient, and (2) that the deficient perfOlmance prejudiced the defense. Strickland, 466 U.S. 668, 687 (1984); Bell v. Cone, 535 U.S. 6 8 5 , 6 9 8 - 9 9

(2002); Williams v. Taylor, 529 U.S. a t 390. Failure to make the required showing o n either prong
defeats the ineffectiveness claim. T o p r o v e deficiency o f performance, a petitioner m u s t demonstrate t h a t c o u n s e l ' s perfOlmance fell below an objective standard o f reasonableness. Strickland, 466 U.S. at 688. There is a strong presumption that the counsel's conduct falls within a wide range o f reasonable professional assistance. ld. a t 689. T o e s t a b l i s h p r e j u d i c e , a p e t i t i o n e r m u s t s h o w t h a t t h e r e is a r e a s o n a b l e p r o b a b i l i t y t h a t , b u t for c o u n s e l ' s unprofessional enol'S, the result o f the proceeding would have been different. Bell

v. Cone, 535 U.S. 685, 695 (2002); Williams, 529 U.S. at 390-91; Strickland, 466 U.S. a t 687, 694.
'" A reasonable probability is a probability sufficient to undelmine confidence i n the outcome. '"

Williams, 529 U.S. at 391 (quoting Strickland, 466 U.S. at 694).

B.

Analysis

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Petitioner contends his trial counsel provided constitutionally ineffective assistance because he failed to object to the two departure sentences. As noted, the trial j u d g e pronounced Petitioner's sentence a t the hearing o n June 14, 2000. The Supreme Court decided A p p r e n d i 12 days later, on June 26, 2000. I Because the judgment i n Petitioner's case was not entered in the court register until July 19, 2000, however, the sentence did not become final at the trial level for approximately 24 days after the A p p r e n d i decision. The Oregon Court o f Appeals rejected Petitioner's argument in the reported decision from his P C R appeal i n a l e n g t h y discussion: In two previous cases, the Oregon appellate coutis have held that the failure o f a p e t i t i o n e r ' s t r i a l c o u n s e l to a n t i c i p a t e A p p r e n d i o r B l a k e l y d i d n o t c o n s t i t u t e inadequate assistance. In Miller v. Lampert, 340 Or. 1, 125 P.3d 1260 (2006), the trial court sentenced the petitioner as a dangerous offender i n 1998, two years before the decision in Apprendi. I n doing so, the trial c o u t i made findings that A p p r e n d i r e s e r v e s to a j u r y . I n c o n s i d e r i n g t h e p e t i t i o n e r ' s p o s t - c o n v i c t i o n c l a i m s a f t e r A p p r e n d i , t h e S u p r e m e C o u r t f i r s t h e l d t h a t A p p r e n d i d o e s n o t apply retroactively. "'"filler, 340 Or. at 12-13, 125 P.3d 1260. I t then turned to the petitioner's claim that his counsel had been constitutionally inadequate for failing to anticipate the A p p r e n d i rule and advocate for it a t the time o f sentencing.

I

In Apprendi, the Supreme Court announced: Other than the fact o f a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a j u r y and proved beyond a reasonable doubt.

530 U.S. at 490. Some four years later, i n Blakely v. Washington, 542 U.S. 296, 303 (2004), the Supreme C o u t i held that "the statutOly maximum for Apprendi purposes is the maximum sentence a j u d g e may impose based solely on the basis o f the facts reflected in the j u t y verdict or admitted b y the defendant." In a guideline sentencing scheme such as Oregon's, this means the "statutory maximum" is the maximum sentence that the guidelines authorize w i t h o u t a d d i t i o n a l factual d e t e l m i n a t i o n s , n o t t h e m a x i m u m s e n t e n c e p r o v i d e d i n t h e s t a t u t e c r e a t i n g t h e crime.

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In deciding the claims i n lvfiller, the court noted that the relevant United States Supreme Court cases at the time o f the sentencing appeared to hold that a sentencing factor did not constitute an element o f the otfense that the jUly had to find by a preponderance o f the evidence. In pmiicular, it pointed out that Almendarez- Torres v. United States, 523 U.S. 224 (1998), pelmitted the trial cOUli to enhance the sentence o f a depOlied alien who returned to the United States illegally i f the couli found, by a preponderance o f the evidence, that the alien had a previous felony conviction. That enhancement, the Court held, was not an element o f the offense; it explained that, i n general, sentencing factors that enhance the statutory maximum sentence do not constitute elements o f an offense. Miller, 340 Or. at 14-16 (discussing Almendarez-Torres). In the legal context that existed at the time o f the petitioner's sentencing in ivfiller, the court held, the petitioner's trial counsel did not exercise inadequate skill and judgment in failing to anticipate that the [Supreme] Court would, two years after deciding Almendarez-Torres, e f f e c t i v e l y reverse course i n A p p r e n d i , a d o p t the r e a s o n i n g o f the d i s s e n t i n Almendarez-Torres, and limit that case to its facts. Thus, the couli concluded, the petitioner did not receive inadequate assistatlce o f counsel under either the state or federal constitution. ivfiller, 340 Or. at 16-17. In Peralta-Basilio v. Hill, 203 Or. App. 449, 126 P.3d 1 (2005), rev. den., 340 Or. 359, 132 P.3d 1056 (2006), the petitioner received a dispositional atld d u r a t i o n a l u p w a r d d e p a r t u r e sentence u n d e r t h e g u i d e l i n e s o n a c o n v i c t i o n f o r third-degree assault in 2002-after Apprendi but before Blakely was decided. That sentence was less than the statutOly indeterminate sentence for the crime, although it was greater than the guidelines presumptive sentence. The trial cOUli based the departure sentence o n a number o f findings that the cOUli made after the petitioner pleaded no contest to the charge. The petitioner subsequently filed a petition for post-conviction relief, arguing that his trial counsel was constitutionally inadequate for failing to object under the principles established i n Apprendi and Blakely. A t the time o f sentencing, the controlling decision was our opinion i n State v. Dilts, 179 Or. App. 238, 39 P.3d 276 (2002), ajJ'd, 336 Or. 158, 82 P.3d 593 (2003), v a c ' d a n d rem 'd, 542 U.S. 934, r e v ' d a n d r e m ' d , 337 Or. 6 4 5 , 1 0 3 P.3d 95 (2004). In Dilts, we held that, under Apprendi, the maximum permissible sentence in the absence o f additional jUly findings was the statutOly maximum indetelminate sentence for the crime, not the presumptive guidelines sentence. Thus, according to Dilts, a trial court could impose an upward departure up to the statutory indetelminate sentence without needing a j u r y ' s determination o f the facts that supported the upward depmiure. Dilts, 179 Or. App. at 2 5 1 - 5 2 , 3 9 P.3d 276.
InPeraita-Basilio, we noted that, before Blakely, evelY federal circuit court had come to the same conclusion that we reached in Dilts regarding schemes similar to Oregon's guidelines. 203 Or. App. at 454. We also quoted commentators who

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emphasized that Blakely's treating a guidelines presumptive sentence as a statutory maximum was a significant surprise that few i f any observers anticipated. Peralta-Basilio, 203 Or. App. at 454-55. Giventhat state o f the law, we concluded that the petitioner's counsel did not exercise inadequate skill and judgment in failing to object to the departure sentences at the time o f sentencing.
Peralta-Basilio would appear to resolve petitioner's claim o f inadequate assistance. Petitioner argues that Peralta-Basilio is distinguishable, however, because we had decided Dilts before the sentencing i n that case, whereas, i n this case, the sentencing OCCUlTed before Dilts was decided. Thus, according to petitioner, his trial counsel confronted no directly contrary authority at the time o f sentencing. Indeed, petitioner argues, there had been no time for there to be any significant relevant authority one way or the other; the issue was, at best, unsettled. Based on those facts, petitioner argues that, although it was reasonable for trial counsel in Peralta-Basilio to fail to make an argument that flew directly in the face o f Dilts, it was not reasonable for trial counsel in his case to fail to make an argument that flowed from Apprendi and that had no authority against it.

The difficulty with petitioner's argmnent is that, as we described i n P e r a l t a - B a s i l i o , the e s s e n t i a l l y u n i v e r s a l c o n c l u s i o n o f the c o u l i s b e f o r e B l a k e l y was that Apprendi applied only to sentences that exceeded the statutory maximum sentence for the crime, not sentences that depmied from a presumptive sentence i n a guidelines scheme. The Court's use o f the pm'ase "statutory maximum" in i t s e l f seemed to suppOli that conclusion. The Oregon Supreme COUli held i n }Ifiller that, given the state o f the law before Apprendi, trial counsel was not required to anticipate that decision. In the same way, given the common understanding o f Apprendi before the decision i n Blakely, counsel, exercising reasonable skill and judgment, could well conclude, even before Dilts, that there was no merit in raising an Apprendi argument against a guidelines depmiure sentence. The trial court cOlTectly concluded that petitioner's trial counsel satisfied the appropriate constitutional standards.
Buffa, 214 Or. App. at 42-45 (footnote omitted).

The Oregon COUli o f Appeals' conclusion that trial counsel was not constitutionally ineffective in failing to anticipate a true change i n the law as reflected by Apprendi, and subsequently, Blakely, is not contrary to or an unreasonable application o f clearly established federal law. Even though Apprendi was decided in the interim between the sentencing hearing and

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entry o ft h e j u d g m e n t i n the court register, no clearly established federal law held that the m a x i m u m p o s s i b l e s e n t e n c e i n the a b s e n c e o f a d d i t i o n a l j u r y f i n d i n g s w a s t h e p r e s u m p t i v e g u i d e l i n e s sentence, n o t the statutOly m a x i m u m indeterminate sentence for the crime. Indeed, before Blakely w a s d e c i d e d , " v h i u a l l y e v e r y s i n g l e f e d e r a l c i r c u i t c o u r t " c o n c l u d e d t h a t " a d e p a r t u r e from a presumptive sentence did not lUn afoul o f Apprendi as long as the upward departure was authorized u n d e r the s e n t e n c i n g g u i d e l i n e s a n d d i d n o t e x c e e d t h e s t a t u t o r y m a x i m u m " for the c r i m e . P e r a l t a -

Basilio, 203 Or. App. at 453, 454 (collecting federal circuit cases); see also Schardt v. Payne, 414
F 3 d 1025, 1035 (9th Cir. 2005) (rule announced i n Blakely w a s not apparent to all reasonable j u r i s t s and n o t dictated by precedent as evelY circuit court that addressed the question reached the o p p o s i t e c o n c l u s i o n a s r u l e s u b s e q u e n t l y a n n o u n c e d i n Blakely). Petitioner argues the Oregon COUli o f A p p e a l s ' decision w a s an unreasonable application o f clearly established federal law, because under Strickland, trial c o u n s e l ' s failure to object to the departure sentences w a s n o t r e a s o n a b l e u n d e r t h e circumstances. T h e cases cited b y P e t i t i o n e r i n suppOli o f his argument are, however, distinguishable from the case a t hand. Three o f the cases involved situations in w h i c h cOUlis found ineffective assistance where counsel failed to object at sentencing based o n l a w w h i c h existed p r i o r to the sentencing. See

United States v. Ford, 918 F.2d 1343, 1350 (8th Cir. 1 9 9 0 ) (counsel failed t o object to b a s e offense
level when a m o n t h prior to sentencing Congress h a d amended guideline to a l l o w for two-point r e d u c t i o n i n c a r e e r o f f e n d e r ' s b a s e level w h e n o f f e n d e r a c c e p t e d r e s p o n s i b i l i t y f o r c r i m e s ) ; U n i t e d

States v. Kissick, 69 F 3 d 1048, 1056 (1995) (counsel failed to object to prior conviction w h i c h did
n o t m e e t n e c e s s a r y e l e m e n t s r e q u i r e d t o s u p p o r t finding u n d e r " c a r e e r o f f e n d e r " p r o v i s i o n ) ; Glover

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v. United States, 531 U.S. 198 (2001), rem 'd, United States v. Glover, 149 F. Supp. 2 d 371, 381-83 ( 2 0 0 1 ) ( c o u n s e l f a i l e d t o r a i s e a r g u m e n t at s e n t e n c i n g a n d o n a p p e a l t h a t f o l l o w e d f r o m t h e n e x i s t i n g c a s e l a w i n t h e c i r c u i t i n w h i c h c o u n s e l p r a c t i c e d a n d w h i c h was o n p o i n t ) . In the fomih case cited, Burdge v. Belleque, 290 Fed. Appx. 73 (9th Cir. 2008), the Ninth Circuit found counsel was ineffective for failing to recognize an Oregon statute governing sentences for persons previously convicted was subject to multiple interpretations. A t the time o f the sentencing in Burdge, counsel was presented with a n open question regarding who qualified as h a v i n g " p r e v i o u s l y b e e n c o n v i c t e d " u n d e r t h e statute. T h e O r e g o n c o m i s s u b s e q u e n t l y h e l d t h e statute did n o t apply to defendants like Burdge, and the Ninth Circuit held counsel unreasonably failed to identify the ambiguity and argue for the result later validated. Here, unlike Burdge, the sentencing issue presented to Petitioner's trial attorney was n o t subject to any ambiguity at the time o f P e t i t i o n e r ' s sentencing. At the time o f Petitioner's s e n t e n c i n g h e a r i n g , i t was c o n s i s t e n t w i t h t h e n - e x i s t i n g l a w t h a t t h e c o u r t c o u l d i m p o s e a n u p w a r d d e p a r t u r e . M o r e o v e r , e v e n t h o u g h A p p r e n d i was d e c i d e d w h i l e P e t i t i o n e r ' s c a s e was s t i l l p e n d i n g , that decision i n i t s e l f appeared t o indicate the statutOly maximum was j u s t that -- the statutOlY maximum indeterminate sentence. I t w a s not objectively unreasonable for trial counsel to anticipate and argue the result subsequently achieved four years later in Blakely. The Oregon C o m i o fAppeal determination that trial counsel's representation fell within the wide range o freasonable professional assistance was not an unreasonable application o fStrickland,

A p p r e n d i , o r Blakely.

As such, the decision is entitled to deference under § 2254( d), and

Petitioner's federal habeas corpus Petitioner should be denied.

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RECOMMENDATION

For these reasons, I recommend that the Petition For Writ o f Habeas Corpus be DENIED, and that a judgment o f DISMISSAL be entered.
SCHEDULING

The above Findings and Recommendation are refe11'ed to a United States District Judge for review. Objections, i f any, are due October 20, 2009. I f no objections are filed, review o f the Findings and Recommendation will go under advisement that date. A party m a y respond to another p a r t y ' s objections within 10 days after filing o f the objections. I f objections are filed, review o f the Findings and Recommendation will go under advisement upon receipt o f the response, or o n the latest date for filing a response. DATED thi~ay o f October, 2009.

V. Acosta ed States Magistrate Judge

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