United States Court of Appeals, Ninth CircuitMar 3, 2010
368 Fed. Appx. 840 (9th Cir. 2010)

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No. 08-35921.

Submitted February 16, 2010.

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).

Filed March 3, 2010.

Thomas J. Hester, Assistant Federal Public Defender, FPDOR — Federal Public Defender's Office, Portland, OR, for Petitioner-Appellant.

Denis M. Vannier, Esquire, Assistant Attorney General, Oregon Department of Justice, Salem, OR, for Respondent-Appellee.

Appeal from the United States District Court for the District of Oregon, Ann L. Aiken, Chief District Judge, Presiding. D.C. No. 6:06-cv-00166-ALA.

Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.


This disposition is not appropriate for publication and except as provided by 9th Cir. R. 36-3.

Dale A. Bush, who is currently serving a two-year term of supervised release, appeals from the district court's judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Bush contends his Sixth Amendment right to a jury trial under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), was violated when the trial court found that his drug convictions arose from separate criminal episodes and used that fact when calculating his sentences. Bush has not shown that the state court's rejection of this claim was either contrary to, or an unreasonable application of, clearly established federal law, or that it was based on an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d).

The trial court's fact finding did not implicate Bush's Sixth Amendment rights. See Oregon v. Ice, ___ U.S. ___, ___ _ ___, 129 S.Ct. 711, 717-18, 172 L.Ed.2d 517 (2009) (holding that Apprendi and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) do not apply to findings of fact necessary for the imposition of consecutive sentences). In addition, even if the trial court's recalculation of Bush's criminal history score for certain counts implicated Blakely, that decision does not apply retroactively to Bush's conviction, which became final before Blakely was announced. Schardt v. Payne, 414 F.3d 1025, 1038 (9th Cir. 2005).