James Lloyd Denney, Petitioner-appellant, v. Samuel Lewis, Director, Adoc, Robert Corbin, Attorneygeneral of the State of Arizona, Respondent-appellee, 891 F.2d 294 (9th Cir. 1989)

MEMORANDUM^** 

James Lloyd Denney, an Arizona state prisoner, appeals the district court's denial of his petition for habeas corpus for failure to state a claim upon which relief may be granted. Denney contends that the trial court's failure to allow him to try his alleged prior convictions before a jury violated his due process rights.

We have jurisdiction to hear this appeal from the district court's order denying the petition for writ of habeas corpus under 28 U.S.C. § 2254. We review the district court's decision de novo. United States v. Popoola, 881 F.2d 811, 812 (9th Cir. 1989). "To the extent it is necessary to review findings of fact, the clearly erroneous standard applies." Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989).

Denney's petition for habeas relief states a claim for violation of due process based on the trial court's denial of his right to trial by a jury to establish his prior convictions. This right is guaranteed under Arizona law. Ariz.R.Crim.P. 17.6. The trial court permitted Denney to withdraw his admission of his prior convictions, and Denney did not subsequently waive his right to trial. Because Denney's petition states a claim, we direct the district court to hold a hearing as to its merits.

REVERSED AND REMANDED.