Dale Bush v. Jean Hill , 368 F. App'x 840 ( 2010 )

FILED
NOT FOR PUBLICATION MAR 03 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DALE A. BUSH, No. 08-35921
Petitioner - Appellant, D.C. No. 6:06-cv-00166-ALA
v.
MEMORANDUM *
JEAN HILL, Superintendent of the Snake
River Correctional Institution,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief District Judge, Presiding
Submitted February 16, 2010 **
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
SM S/Research
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 (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, 129 S. Ct. 711, 717-18 (2009) (holding that Apprendi
and Blakely v. Washington, 542 U.S. 296 (2004) do not apply to findings of fact
necessary for the imposition of consecutive sentences). In addition, even if the
trial court’s recalcuation 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).
AFFIRMED.
SMS/Research 2 08-35921