Barnett v. Johnson

36 F. App'x 628

Opinion

MEMORANDUM

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Kenneth Barnett, an Oregon prisoner, appeals the denial of his 28 U.S.C. § 2254 petition, challenging his thirty-year sentence imposed as a result of his guilty plea conviction for three counts of first-degree rape of a minor. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo the denial of a § 2254 petition, Dows v. Wood, 211 F.3d 480, 484 (9th Cir.2000), and we affirm.

The district court granted Barnett a certificate of appealability on the issue of whether Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) may be applied retroactively in a collateral proceeding under 28 U.S.C. § 2254.¹ This issue is now foreclosed by our recent decision in Rees v. Hill, 286 F.3d 1103, 1104 (9th Cir.2002) (denying petitioner’s request to file a successive § 2254 petition because Apprendi does not apply retroactively on collateral review).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.

1 . Barnett was granted a COA on four other issues, but has abandoned them on appeal by failing to include them in his brief to this court. See Wilcox v. Commissioner of Internal Revenue, 848 F.2d 1007, 1008 n. 2 (9th Cir. 1988)