Michael Lendahl v. Palosaari, et al, No. 09-15496 (9th Cir. 2010)
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FILED NOV 09 2010 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT MICHAEL DAVID LENDAHL, Petitioner - Appellant, No. 09-15496 D.C. No. 2:07-cv-02003-MHM v. MEMORANDUM * PALOSAARI, Warden ASPC Douglas and STATE OF ARIZONA ATTORNEY GENERAL, Respondents - Appellees. Appeal from the United States District Court for the District of Arizona Mary H. Murguia, District Judge, Presiding Argued and Submitted November 3, 2010 Stanford, California Before: THOMAS and IKUTA, Circuit Judges, and RESTANI, Judge.** * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Jane A. Restani, Judge of the United States Court of International Trade, sitting by designation. Although Lendahl exhausted his claim that his sentence was improperly enhanced because a judge, not a jury, found the facts underlying the enhancement, we affirm the district court s denial of his federal habeas petition. The state court s denial of Lendahl s claim was not an unreasonable application of clearly established Federal law, because no Supreme Court precedent clearly establishes that a prior conviction must be proved to a jury when it is used as a sentencing factor. See Almendarez-Torres v. United States, 523 U.S. 224 (1998). Further, Lendahl s claim that he did not knowingly and intelligently waive his right to a jury determination of any aggravating factors is unavailing, given that Lendahl s plea agreement and colloquy reflect that he knew and understood his jurysentencing rights, consulted his attorney regarding those rights and the consequences of waiving them, and then agreed, orally and in writing, to give up those jury-sentencing rights. AFFIRMED. 2
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