Van Norman v. Schriro

616 F. Supp. 2d 939, 2007 U.S. Dist. LEXIS 59326, 2007 WL 2325969

• Court: District Court, D. Arizona
• Decided: August 13, 2007
• Docket: CV-06-1808-PHX-DGC (LOA)
• Status: Published

Opinion

ORDER

DAVID G. CAMPBELL, District Judge.

Pending before the Court are Petitioner Jason Van Norman’s petition for writ of habeas corpus and United States Magistrate Judge Lawrence Anderson’s report and recommendation (“R & R”). Dkt. ## 1, 16. The R & R recommends that the Court deny the petition. Petitioner has filed objections to the R & R. Dkt. # 17. The Court will accept the R & R and deny the petition.

I.Background.

Petitioner pled guilty in state court to theft of a means of transportation with one prior felony conviction. The trial court sentenced Petitioner to an aggravated ten-year prison term. The trial court found and considered three aggravating factors: Petitioner’s three prior felony convictions, the harm caused to the victim, and the danger posed to the public.

The trial court granted Petitioner’s petition for post-conviction relief on the ground that the aggravated sentence was unconstitutional. Relying on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the trial court reasoned that the aggravated sentence violated Petitioner’s Sixth Amendment right to a jury trial because the court had enhanced the sentence based in part on subjective findings of non-prior conviction aggravating circumstances. The Arizona Court of Appeals reversed, holding that because Petitioner’s prior felony convictions were Blakely-exempt factors, the trial court was permitted to find and consider additional aggravating factors in determining the appropriate sentence. The Arizona Supreme Court denied review.

II. Standard of Review.

The Court may not grant habeas relief unless it concludes that the state’s “adjudication of the claim — (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established [f]ederal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the [s]tate court proceeding.” 28 U.S.C. § 2254(d)(l)-(2).

III. Analysis.

Petitioner claims that the aggravated sentence imposed by the trial court violated his Fifth Amendment right to due process and his Sixth Amendment right to trial by jury. Dkt. # 1 at 5. The R & R concludes that the Fifth Amendment claim is barred because it is procedurally defaulted and Petitioner has not established a basis to excuse his default. Dkt. # 11 at 9-11. Petitioner does not object to this conclusion, which relieves the Court of its obligation to conduct de novo review of the issue. See 28 U.S.C. § 636(b)(1); Fed. R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) (“[Section 636(b)(1)] does not ... require any review at all ... of any issue that is not the subject of an objection.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003) (same). The Court will accept the R & R with respect to Petitioner’s Fifth Amendment claim.

The R & R further concludes that the state’s rejection of Petitioner’s Blakely challenge was neither contrary to, nor an unreasonable application of, Supreme Court jurisprudence because the Supreme Court has never held that the Sixth Amendment prohibits the imposition of an enhanced sentence where at least one Blakely-exempt aggravating factor ex- panels the sentencing range. Dkt. # 16 at 14-19. The R & R notes that courts in this Circuit have consistently held that a prior conviction alone is sufficient to increase the range within which a judge may impose a sentence. Id. at 15-17 (citing Jones v. Schriro, No. CV 05-3720-PHX-JAT, 2006 WL 1794765 (D.Ariz. June 27, 2006); Garcia v. Schriro, No. 06-0855-PHX-DGC (DKD), 2006 WL 3292473 (D.Ariz. Nov.9, 2006); Nino v. Flannigan, No. 2:04-cv-02298-JWS, 2007 WL 1412493 (D.Ariz. May 14, 2007)).

Petitioner objects to the R & R on the ground that the Magistrate Judge relied solely on decisions from courts of this District in support of his conclusion that the state’s adjudication of Petitioner’s claim was not inconsistent with the Blakely. Dkt. # 17 at 5. But Petitioner does not explain why the reasoning of the district court decisions is incorrect. Moreover, the Magistrate Judge also relied on Stokes v. Schriro, 465 F.3d 397 (9th Cir.2006), in which the Ninth Circuit held that there is no Blakely violation where the defendant is not exposed to a greater sentence than that authorized solely by the facts found at trial or the fact of a prior conviction. Id. at 16 (citing Stokes, 465 F.3d at 402-03).

The R & R correctly concludes that the state’s adjudication of Petitioner’s claim was neither contrary to, nor an unreasonable application of, the Blakely line of cases. See Blakely, 542 U.S. 296, 124 S.Ct. 2531; Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Under Arizona’s sentencing scheme, the existence of a single aggravating factor exposes a defendant to an enhanced sentence. See A.R.S. § 13-702. In applying Blakely to this sentencing scheme, the Arizona Supreme Court concluded that “once a jury finds or a defendant admits a single aggravating factor, the Sixth Amendment permits the sentencing judge to find and consider additional factors relevant to the imposition of a sentence up to the maximum[.]” State v. Martinez, 210 Ariz. 578, 115 P.3d 618, 625 (2005). “In other words, once an aggravating factor — properly established through a jury finding, an admission, or a prior conviction — increases a defendant’s maximum sentence, the court may independently find and consider other aggravating factors to support a sentence within the new maximum.” Garcia, 2006 WL 3292473, at *2 (emphasis added).

In this case, the trial court properly considered Petitioner’s prior convictions as an aggravating circumstance that increased the maximum allowable sentence under Blakely. Once the new maximum was established, the court was free to consider the aggravating circumstances of harm to the victim and danger to the public in deciding where to sentence Petitioner within the new maximum range. See Booker, 543 U.S. at 230, 125 S.Ct. 738; Martinez, 115 P.3d at 624-25 (interpreting Blakely and Booker to require that only the aggravating factor that initially increases a sentencing ceiling must comport with Blakely’s heightened proof requirements). Petitioner’s aggravated sentence comports with the Sixth Amendment. See Jones, 2006 WL 1794765, at *3 n. 2 (“Based upon Jones’ prior conviction alone, the sentencing judge was authorized to find the remaining aggravating factors.”); Nino, 2007 WL 1412493, at *4 (“A history of prior convictions is Blakely exempt. Therefore, since one Blakely exempt factor supports the aggravated sentence, consideration of other factors [when] imposing the sentence does not violate Petitioner’s Fifth and Sixth Amendment rights established in Blakely.”); Beals v. Bartos, No. 2:06-cv-00801-JWS, 2007 WL 2220467, at *8 (D.Ariz. Aug.2, 2007) (“Although the trial court also found several other aggravating factors, Petitioner’s prior felony convictions were sufficient to expose him to the aggravated term of 10 years’ imprisonment.”). The Court will accept the R & R with respect to Petitioner’s Sixth Amendment claim.

IT IS ORDERED:

1. Magistrate Judge Lawrence Anderson’s report and recommendation (Dkt.# 16) is accepted.

2. Petitioner Jason Van Norman’s petition for writ of habeas corpus (Dkt.# 1) is denied.

3. The Clerk shall terminate this action.

REPORT AND RECOMMENDATION

LAWRENCE O. ANDERSON, United States Magistrate Judge.

This matter arises on Petitioner’s Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 alleging that Petitioner’s aggravated sentence violates the Sixth Amendment because the aggravating factors were not submitted to a jury and proved beyond a reasonable doubt, (docket # 1) Respondents have filed an Answer (docket # 12) to which Petitioner has replied, (docket #14)

FACTUAL AND PROCEDURAL BACKGROUND

On March 18, 2003, the State filed an information in CR2003-009497-001DT 1 charging Petitioner with theft of a means of transportation, a class 3 felony. (Respondents’ Exh. B) The State also alleged that Petitioner had three prior felony convictions and had committed the charged offense while released on bond. (Respondents’ Exh. B) On September 25, 2003, pursuant to a plea agreement, Petitioner pled guilty to theft of a means of transportation with one prior felony conviction. (Respondents’ Exh. C). Petitioner’s conviction of theft of a means of transportation with one prior felony conviction, a class three felony, yielded a minimum sentence of 4.5 years imprisonment, a presumptive term of 6.5 years, and a maximum term of 13 years. A.R.S. § 13-604(B). Arizona Revised Statutes § 13-702(B), 13-702(C) further provide that the sentence may be mitigated by a maximum of two years or aggravated up to three years.

On January 9, 2004, the trial court 2 accepted the plea and sentenced Petitioner to an aggravated term of ten years’ imprisonment. (Respondents’ Exh. F at 27-28) During the sentencing hearing, the trial court found the following aggravating factors: (1) Petitioner’s prior criminal history, which included three prior felony convictions; (2) the harm Petitioner caused the victim; and (3) the danger to which Petitioner exposed other members of the public. (Respondents’ Exh. F at 27)

Rule 32 “of-right” Proceeding

By pleading guilty, Petitioner waived his right to a direct appeal under Arizona law. However, he retained his right to seek review in an “of-right proceeding” under Arizona Rule of Criminal Procedure 32. Ariz. R.Crim. P. 32.1, 32.4. On February 12, 2004, Petitioner filed a timely notice of post-conviction relief under Ariz. R.Crim. P. 32. (Respondents’ Exh. G). On August 23, 2004, Petitioner’s counsel filed a Petition for PosU-Conviction relief alleging that trial court violated the Sixth Amendment and Blakely’s holding by imposing an aggravated sentence based on aggravated factors which were not found by a jury. Petitioner argued the court should re-sentence him to the presumptive sentence. (Respondents’ Exh. I)

On March 7, 2005, the trial court granted post-conviction relief and vacated the ten-year aggravated sentence finding that Petitioner’s sentence violated Blakely. (Respondents’ Exh. L) The trial court explained:

[T]he court made subjective findings of the existence of several non-prior conviction aggravating factors used to enhance the sentences. Thus, absent a waiver of a jury trial and the proof beyond a reasonable doubt requirement, any sentence in excess of the presumptive term is constitutionally defective and must be set aside. Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

The state is also incorrect in claiming that because the sentencing court properly found one undisputed aggravating factor existed (the defendant’s prior convictions), the defendant is not entitled to a jury on the remaining aggravating factors. This analysis has been expressly rejected in State v. Resendis-Felix, 209 Ariz. 292, 100 P.3d 457 (App.2004); State v. Timmons, 209 Ariz. 403, 103 P.3d 315 (2005); and most recently in State v. Munninger, 209 Ariz. 473, 104 P.3d 204 (App. January 20, 2005). In addition, as in Timmons, here the court cannot say that the aggravating factors evidence was so overwhelming that no jury could find that the state would fail to prove each factor beyond a reasonable doubt. Thus, the failure to submit the aggravating factors to a jury was not harmless error beyond a reasonable doubt.

(Respondents’ Exh. L)

On April 5, 2005, the State sought review of the trial court’s ruling in the Arizona Court of Appeals. (Respondents’ Exh. M) On January 19, 2006, the Arizona Court of Appeals granted the State’s petition for review, vacated the trial court’s order, and reinstated the aggravated sentence. (Respondents’ Exh. O) The Arizona Court of Appeals explained that:

Since the trial court granted relief in this matter, our Supreme Court decided State v. Martinez, 210 Ariz. 578, 115 P.3d 618 (2005). In Martinez, our Supreme Court held that once a single aggravating factor has been properly established in accordance with Blakely, the sentencing judge may find and consider additional aggravating factors in its determination of the appropriate sentence to be imposed. Martinez, 210 Ariz. at 585, ¶26, 115 P.3d at 625. Here, one of the aggravating factors found by the trial court was the fact of prior felony convictions. A prior felony conviction is a “Blakely exempt” factor. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Thus, Van Norman was not entitled to a jury trial on the fact of prior felony convictions, and, having established one valid aggravating circumstance, the trial court was free to find other aggravating factors by a preponderance of the evidence. Martinez, 210 Ariz. at 585, ¶ 26, 115 P.3d at 625.

(Respondents’ Exh. O)

On March 23, 2006, Petitioner petitioned the Arizona Supreme Court for review which was denied on June 22, 2006. (Respondents’ Exhs. P, Q)

The Petition

Thereafter, Petitioner timely filed the pending Petition for Writ of Habeas Corpus alleging that his aggravated sentence violates the Fifth Amendment and his Sixth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and its progeny. (docket # 1) Respondents assert that Petitioner properly exhausted his claim with the exception of the Fifth Amendment component, (docket # 12) Respondents also assert Petitioner is not entitled to relief because Blakely is not retroactive and the state court’s decision was neither contrary to, nor an unreasonable application of, clearly established Federal Law. (docket # 12) Petitioner claims his conviction became final after Blakely was decided making the issue of retroactivity moot and, therefore, his Petition should be granted, (docket # 14)

ANALYSIS

I. Statute of Limitations

On April 24, 1996, the Anti-Terrorism and Effective Death Penalty Act (“AED-PA”) went into effect drastically altering the time limit imposed on state prisoners filing habeas corpus petitions in federal court. Before the AEDPA, virtually no time limit restrained the filing of federal habeas petitions. Calderon v. United States Dist. Count, 128 F.3d 1283, 1286 (9th Cir.1997) (Beeler), cert. denied, 523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43, and cert. denied, 523 U.S. 1061, 118 S.Ct. 1389, 140 L.Ed.2d 648 (1998), overruled in part on other grounds by Calderon v. United States District Count (Kelly), 163 F.3d 530, cert. denied, 526 U.S. 1060, 119 S.Ct. 1377, 143 L.Ed.2d 535 (1999). The AEDPA established a one-year period in which to file a petition for writ of habeas corpus in federal court. 28 U.S.C. § 2244(d)(1). Because Petitioner filed his Petition after the effective date of the AEDPA, it governs this action.

Title 28 U.S.C. § 2244 provides, in pertinent part:

(D)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.

The limitation period shall run from the latest of—

(A) the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review.

28 U.S.C. § 2244(d)(l)(A)(emphasis added).

A. “Final by Conclusion of Direct Review”

To assess the timeliness of Petitioner’s Petition for Writ of Habeas Corpus, the Court must first determine the date on which Petitioner’s conviction became “final by conclusion of direct review.” 28 U.S.C. § 2244(d)(1)(A). In making this determination, it is significant that by pleading guilty, Petitioner waived his right to a direct appeal under Arizona law. A.R. S. § 13-4033(B). However, Petitioner retained the right to seek review in an “of-right” proceeding pursuant to Ariz. R.Crim. P. 32. Ariz. R.Crim. P. 32.1, 32.4.

The Ninth Circuit recently addressed, as a matter of first impression, the question of when the conviction of a pleading defendant in Arizona becomes “final by the conclusion of direct review” for purposes of 28 U.S.C. § 2244(d)(1). Summers v. Schriro, 481 F.3d 710, 711 (9th Cir.2007). The Ninth Circuit held that an “ ‘of-right proceeding,’ available under Arizona Rule of Criminal Procedure 32 to criminal defendants who plead guilty, is a form of ‘direct review within the meaning of 28 U.S.C. § 2244(d)(1).” Id. at 711. The Summers court explained “[bjecause a Rule 32 of-right proceeding is a form of direct review, AEDPA’s one-year statute of limitations does not begin to run until the conclusion of the Rule 32 of-right proceeding and review of that proceeding, or until the expiration of the time for seeking such proceeding or review.” Id.

Before Summers, the Ninth Circuit assumed, without deciding, that an Arizona pleading defendant’s conviction became final upon sentencing because the guilty plea waives his right to direct appeal. Isley v. Arizona Department of Corrections, 383 F.3d 1054, 1055 (9th Cir.2004). In accordance with Isley, Respondents assert that Petitioner’s conviction became final on January 9, 2004, the date on which the trial court entered judgment and sentenced Petitioner, (docket # 12) After Summers, it is clear Petitioner’s conviction did not become final on the date of sentencing.

Under Summers, because Petitioner pleaded guilty, his conviction became final upon “the conclusion of the Rule 32 of-right proceeding and review of that proceeding, or [upon] the expiration of the time for seeking such proceeding or review.” Summers, 481 F.3d at 711. Here, Petitioner pleaded guilty and was sentenced on January 9, 2004. (Respondents’ Exh. F) By virtue of his plea, the only avenue of “direct” review was a Rule 32 of-right proceeding. Under Ariz. R.Crim. P. 32, Petitioner had ninety days from the entry of judgment and sentence within which to file a notice of review under Rule 32. Ariz. R.Crim. P. 32.1, 32.4(a)(stating “[i]n a Rule 32 of-right proceeding the notice must be filed within ninety days after the entry of judgment and sentence or within thirty days after the issuance of the final order or mandate by the appellate court in the petitioner’s first petition for post-conviction relief proceeding.”) Petitioner filed a timely notice of Rule 32 review on February 12, 2004 (Respondents’ Exh. G) which was pending until the Arizona Supreme Court denied review on June 22, 2006. (Respondents’ Exh. Q)

Recently, in Hemmerle v. Schriro, 495 F.3d 1069, 1074 n. 4 (9th Cir.2007), the Ninth Circuit reiterated its holding in Summers that a Rule 32 “of-right” proceeding should be treated as direct and not collateral review. Accordingly, after the Arizona Supreme Court denied review Petitioner had ninety days in which to petition the United States Supreme Court for a writ of certiorari. Petitioner did not seek review in the United States Supreme Court. Therefore, his conviction became final on or about September 22, 2006. See Bowen v. Roe, 188 F.3d 1157, 1159 (holding that for purposes of § 2244, the definition of “final” includes the 90-day period in which a defendant may file a petition for writ of certiorari to from the United States Supreme Court.)

The AEPDA limitations period commenced on September 23, 2006 and will expire on or about September 23, 2007. Accordingly, Petitioner’s § 2254 petition is timely.

II. Exhaustion and Procedural Default

Respondents assert that Petitioner’s Fifth Amendment claim for relief is procedurally defaulted, (docket # 12)

A. Relevant Law

Pursuant to 28 U.S.C. § 2254(b)(1), before a federal court may consider a state prisoner’s application for a writ of habeas corpus, the prisoner must have exhausted available state court remedies. Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). To properly exhaust state remedies, the prisoner must have afforded the state courts the opportunity to rule upon the merits of his federal constitutional claims by “fairly presenting” them to the state courts in a procedurally appropriate manner. Castille v. Peoples, 489 U.S. 346, 349, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989); Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004) (stating “[t]o provide the State with the necessary ‘opportunity,’ the prisoner must ‘fairly present’ his claim in each appropriate state court ... thereby alerting the court to the federal nature of the claim.”).

To fairly present a claim, a habeas petitioner must cite, in state court, to the specific constitutional guarantee upon which he bases his claim in federal court. Tamalini v. Stewart, 249 F.3d 895, 898 (9th Cir.2001). General appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish fair presentation of a federal constitutional claim. Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir.2000), amended on other grounds, 247 F.3d 904 (9th Cir.2001); Shumway v. Payne, 223 F.3d 982, 987 (9th Cir.2000)(insufficient for prisoner to have made “a general appeal to a constitutional guarantee,” such as a naked reference to “due process,” or to a “constitutional error” or a “fair trial”). Similarly, a mere reference to the “Constitution of the United States” does not preserve a claim. Gray v. Netherland, 518 U.S. 152, 162-63, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996). Even if the basis of a federal claim is “self-evident” or if the claim would be decided “on the same considerations” under state or federal law, the petitioner must make the federal nature of the claim “explicit either by citing federal law or the decision of the federal courts.... ” Lyons, 232 F.3d at 668. A state prisoner does not fairly present a claim to the state court if the court must read beyond the pleading filed in that court to discover the federal claim. Baldwin, 541 U.S. at 27, 124 S.Ct. 1347. In summary, a “petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum; (2) through the proper vehicle, and (3) by providing the proper factual and legal basis for the claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir.2005) (citations omitted).

Where a prisoner fails to “fairly present” a claim to the state courts in a procedurally appropriate manner, state court remedies may be “exhausted.” This type of exhaustion is often referred to as “procedural default” or “procedural bar.” Ylst v. Nunnemaker, 501 U.S. 797, 802-05, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Coleman, 501 U.S. at 731-32, 111 S.Ct. 2546. There are two categories of procedural default. First, a state court may have applied a procedural bar when the prisoner attempted to raise the claim in state court. Nunnemaker, 501 U.S. at 802-05, 111 S.Ct. 2590. Second, the state prisoner may not have presented the claim to the state courts, but pursuant to the state courts’ procedural rules, a return to state court would be “futile.” Teague v. Lane, 489 U.S. 288, 297-99, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Generally, any claim not previously presented to the Arizona courts is procedurally barred from federal review because any attempt to return to state court to properly exhaust a current habeas claim would be “futile.” Ariz. R.Crim. P. 32.1, 32.2(a) & (b); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir.2002); State v. Mata, 185 Ariz. 319, 322-27, 916 P.2d 1035, 1048-53 (1996); Ariz. R.Crim. P. 32.1(a)(3) (relief is precluded for claims waived at trial, on appeal, or in any previous collateral proceeding); 32.4(a); Ariz. R.Crim. P. 32.9 (stating that petition for review must be filed within thirty days of trial court’s decision). A state post-conviction action is futile where it is time-barred. Beaty, 303 F.3d at 987; Moreno v. Gonzalez, 116 F.3d 409, 410 (9th Cir.1997) (recognizing untimeliness under Ariz. R.Crim. P. 32.4(a) as a basis for dismissal of an Arizona petition for post-conviction relief, distinct from preclusion under Rule 32.2(a)).

In either case of procedural default, federal review of the claim is barred absent a showing of “cause and prejudice” or a “fundamental miscarriage of justice.” Dretke v. Haley, 541 U.S. 886, 393-94, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004); Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2678, 91 L.Ed.2d 397 (1986). To establish cause, a petitioner must establish that some objective factor external to the defense impeded his efforts to comply with the state’s procedural rules. Id. The following objective factors may constitute cause: (1) interference by state officials, (2) a showing that the factual or legal basis for a claim was not reasonably available, or (3) constitutionally ineffective assistance of counsel. Id. To establish prejudice, a prisoner must demonstrate the alleged constitutional violation “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimension.” United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Where petitioner fails to establish cause, the court need not reach the prejudice prong.

To establish a “fundamental miscarriage of justice” resulting in the conviction of one who is actually innocent, a state prisoner must establish it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt in light of new evidence. Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); 28 U.S.C. § 2254(c)(2)(B).

B. Application of Law to Petitioner’s Claims

Petitioner asserts that the trial court violated his Fifth Amendment rights by failing to submit aggravating factors to a jury, (docket # 1) Respondents assert that Petitioner never presented a Fifth Amendment claim to the state courts and, therefore, it is proeedurally defaulted, (docket # 12) The Court agrees as review of the record reveals Petitioner never presented this claim to the State courts. Petitioner’s failure to present this claim renders it technically exhausted and procedurally defaulted because he cannot now return to state court to present a Fifth Amendment claim. The “deadlines” for seeking post-conviction review in the state court have “long passed.” White v. Lewis, 874 F.2d 599, 602 (9th Cir.1989)(affirming the district court’s dismissal of a habeas corpus petition because petition lacked a “currently available state remedy at the time of the federal petition.”); Ariz. R.Crim. P. 32.4 (providing that a notice of post-conviction relief “must be filed within ninety days after the entry of judgment and sentence or within thirty days after the issuance of the order and mandate in the direct appeal, whichever is the later.”) Additionally, Petitioner is precluded from raising this claim in a successive Rule 32 petition because he could have raised it in his previous Rule 32 petition. Ariz. R.Crim. P. 32.2(a)(3)(es-tablishing a defendant “shall be precluded from relief under this rule based on any ground” that has been waived “in any previous collateral proceeding.”)

Because Petitioner’s Fifth Amendment claim is proeedurally defaulted, federal review is barred absent a showing of “cause and prejudice” or a “fundamental miscarriage of justice.” House v. Bell, 547 U.S. 518,126 S.Ct. 2064, 2076-77, 165 L.Ed.2d 1 (2006); Bradshaw v. Richey, 546 U.S. 74, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005); Moormann v. Schriro, 426 F.3d 1044, 1058 (9th Cir.2005)(stating “[a] prisoner who fails to comply with state procedures cannot receive federal habeas corpus review of a defaulted claim unless the petitioner can demonstrate either cause for the default and resulting prejudice, or that failure to review the claims would result in a fundamental miscarriage of justice.”) To establish cause, a petitioner must show some objective external factor impeded his efforts to comply with the state’s procedural rules. Id. The following objective factors may constitute cause: (1) interference by state officials, (2) a showing that the factual or legal basis for a claim was not reasonably available, or (3) constitutionally ineffective assistance of counsel. Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir.2004). To establish prejudice, a petitioner must demonstrate the alleged constitutional violation “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimension.” United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982).

Petitioner has not established cause for his procedural default. Petitioner’s status as an inmate and lack of legal knowledge do not constitute cause for his failure to present his claim to the Arizona courts. Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 909 (9th Cir.1986)(finding an illiterate pro se petitioner’s lack of legal assistance did not amount to cause to excuse a procedural default); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir.1988)(finding petitioner’s arguments concerning his mental health and reliance upon jailhouse lawyers did not constitute cause.)

Likewise, Petitioner has not satisfied the “fundamental miscarriage of justice” standard because he has not shown it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt in light of new evidence. Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); 28 U.S.C. § 2254(c)(2)(B); Calderon v. Thompson, 523 U.S. 538, 559, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) (“[T]he miscarriage of justice exception is concerned with actual as compared to legal innocence.... Given the rarity of [reliable] evidence [of actual innocence], in virtually every case, the allegation of actual innocence has been summarily rejected.”) (internal quotation marks and citations omitted); Dretke v. Haley, 541 U.S. 386, 393, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004)(reaffirming the “fundamental miscarriage of justice” standard as a “narrow exception” which only applies where “a constitutional violation has ‘probably resulted’ in the conviction of one who is ‘actually innocent’ of the substantive offense.”)(quoting Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2678, 91 L.Ed.2d 397 (1986)).

Because Petitioner’s Fifth Amendment claim is procedurally defaulted and he fails to establish a basis to excuse his default, federal habeas corpus review is barred. The Court, therefore, need not reach the merits of Petitioner’s Fifth Amendment claim for relief. Dretke v. Haley, 541 U.S. at 393-94, 124 S.Ct. 1847.

II. Petitioner’s Blakely Claim

Before addressing the merits of Petitioner’s Blakely claim, the Court must resolve the threshold issue of whether Blakely applies to Petitioner’s case at all. Respondents assert that Blakely does not apply because Petitioner’s conviction was final before Blakely was decided, (docket # 12) Petitioner asserts that his conviction was not final until after his Rule 32 of-right proceedings concluded well after Blakely was decided, (docket # 14) As discussed below, the Court finds Blakely applies because Petitioner’s conviction was pending on direct review when Blakely was decided.

Applying the rule announced in Summers, Petitioner’s conviction became final on or about about September 22, 2006, when his Rule 32 of-right proceedings concluded. Summers, 481 F.3d at 711. Thus, Petitioner’s conviction was final after Blakely was decided in June of 2004 and, therefore, the rule announced in Blakely applies to Petitioner’s case.

A. Standard of Review

This Court’s analysis of the merits of Petitioner’s Blakely claim is constrained by the applicable standard of review. A state prisoner “whose claim was adjudicated on the merits in state court is not entitled to relief in federal court unless he meets the requirements of 28 U.S.C. § 2254(d).” Price v. Vincent, 538 U.S. 634, 638, 123 S.Ct. 1848, 155 L.Ed.2d 877 (2003). Thus, a state prisoner is not entitled to relief unless he demonstrates the state court’s adjudication of his claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 2) resulted in a decision that was based on an unreasonable determination of the acts in light of the evidence presented in the State court proceedings.

28 U.S.C. § 2254(d). The federal court first determines whether the United States Supreme Court has “clearly established” the law on the legal issue which Petitioner raises. Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Where the Supreme Court has not yet clearly established a rule of law, the writ will not issue. Mitchell v. Esparza, 540 U.S. 12, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003).

Under the “contrary to” clause of § 2254(d), a federal habeas court may not issue a writ, unless the state court: (1) applied a rule of law “that contradicts the governing law set forth in [Supreme Court] cases,” or (2) “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent.” Williams v. Taylor, 529 U.S. 362, 411, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In summary, a petitioner must establish the state court applied the wrong legal rules because Supreme Court precedent requires a contrary outcome. Where a state court decision is deemed to be “contrary to” clearly established federal law, the reviewing court must next determine whether it resulted in constitutional error. Williams, 529 U.S. at 405, 120 S.Ct. 1495; Benn v. Lambert, 283 F.3d 1040, 1052 n. 6 (9th Cir.2002). If constitutional error occurred, the next question is whether such error was structural, in which case petitioner is entitled to habeas corpus relief. Id. If the error was not structural, the final question is whether the error had a substantial and injurious effect on the verdict, or was harmless. Id.

A state court decision is reviewed under the “unreasonable application of’ standard where the court identifies the correct legal rule, but unreasonably applies the rule to the facts of a particular case. Williams, 529 U.S. at 405, 120 S.Ct. 1495; Rompilla v. Beard, 545 U.S. 374, 380, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). Under this standard, “[i]t is not enough that a federal habeas court, in its independent review of the legal question,” is left with the “firm conviction” that the state court ruling was “erroneous.” Id.; Andrade, 538 U.S. at 75, 123 S.Ct. 1166. Rather, the state court decision “must be objectively unreasonable.” Middleton v. McNeil, 541 U.S. 433, 124 S.Ct. 1830, 158 L.Ed.2d 701 (2004); Andrade, 538 U.S. at 76, 123 S.Ct. 1166; Rompilla, 545 U.S. at 380, 125 S.Ct. 2456. An unreasonable application is different from an incorrect application of law. Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). Likewise, an incorrect application of state law is insufficient to satisfy the standard of review. Id. This standard is not the same as “clear error.” Andrade, 538 U.S. at 75-76, 123 S.Ct. 1166. “The gloss of clear error fails to give proper deference to state courts by conflating er ror (even clear error) with unreasonableness.” Id. at 75, 123 S.Ct. 1166 (citations omitted). As with the state court decisions that are “contrary to” established federal law, where a state court decision is an “unreasonable application of’ Supreme Court precedent, federal habeas relief is unavailable if the error was non-structural or harmless. Benn, 283 F.3d at 1052 n. 6.

B. Merits of Blakely Claim

Petitioner argues that his aggravated sentence violates Blakely in which the Supreme Court held any factor which leads to a sentence greater than would be imposed based on the jury’s finding of guilt must be found by a jury beyond a reasonable doubt, (docket # 1)

Before Blakely, in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court held “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added). The Supreme Court specifically carved out an exception for prior convictions. Id.; United States v. Maria-Gonzalez, 268 F.3d 664, 670 (9th Cir.2001)(holding prior aggravated felony conviction did not constitute an element of the offense where base sentence for illegally reentering the United States following deportation is enhanced if deportation was subsequent to conviction for aggravated felony); United States v. Castillo-Rivera, 244 F.3d 1020, 1025 (9th Cir.2001)(holding the district court could consider defendant’s prior conviction in imposing sentence enhancement even though such conduct had not been charged in the indictment, presented to the jury, and proved beyond a reasonable doubt); United States v. Pacheco-Zepeda, 234 F.3d 411, 415 (9th Cir.2001)(noting Apprendi held all prior convictions are exempt under Apprendi’s new rule, therefore, district court properly considered prior convictions in sentencing); United States v. Arellano-Rivera, 244 F.3d 1119 (9th Cir.2001)(same).

As previously stated, under Blakely, any factors which lead to a sentence greater than that which would be imposed based on the jury’s finding of guilt must be found by the jury. 542 U.S. at 301, 124 S.Ct. 2531. Blakely reaffirmed the exemption for prior convictions and reiterated that they may serve as aggravating factors without further proof. United States v. Quintana-Quintana, 383 F.3d 1052, 1053 (9th Cir.2004)(citing Blakely, 542 U.S. at 303, 124 S.Ct. 2531). Blakely also clarified that the “statutory maximum” sentence is initially the presumptive term and is the “maximum sentence the judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. ” In other words, “the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Blakely, 542 U.S. at 303-04, 124 S.Ct. 2531 (emphasis in original). The Blakely Court concluded that, before a trial court can impose a sentence above the statutory maximum, a jury must find beyond a reasonable doubt, or defendant must admit, all facts “legally essential to punishment.” Blakely, 542 U.S. at 313, 124 S.Ct. 2531 (emphasis added).

In this case, the state court’s decision that Petitioner’s aggravated sentence did not violate the Sixth Amendment was neither an unreasonable application of, nor contrary to, the Blakely decision.

The Arizona Supreme Court considered the impact of Blakely on Arizona’s sentencing scheme in State v. Martinez II, 210 Ariz. 578, 583, 115 P.3d 618, 623 (2005)(Martinez II). In Arizona, the stat utory maximum sentence in a case where no Blakely-compliant or Blakely-exempt aggravating factors are present is the presumptive term identified in A.R.S. § 13-701(C). Martinez II, 210 Ariz. at 583, 115 P.3d at 623. However, because an Arizona defendant may receive an aggravated sentence based on only one aggravating factor, A.R.S. § 13-702(B), a single Blakely compliant or Blakely-exempt aggravating factor establishes the facts “legally essential” to punishment. Once such a factor is established, the trial court is free to consider additional facts to determine where to sentence defendant within the aggravated range. Id. at 585, 115 P.3d at 625.

As discussed below, this procedure comports with the Sixth Amendment as interpreted by Apprendi and its progeny. In this case, Petitioner pled guilty to theft of a means of transportation with one prior felony conviction, a Class 3 felony. (Respondents’ Exh. C) In his guilty plea, Petitioner admitted that he had been convicted of possession of marijuana with intent to deliver. (Respondents’ Exhs. C, D) The Court subsequently found that Petitioner had two additional prior felony convictions which are exempt from the rule of Apprendi and its progeny. (Respondents’ Exh. F at 27); Blakely, 542 U.S. at 301, 124 S.Ct. 2531 (retaining Apprendi’s exception for prior felony convictions.) Under Arizona law, a Class 3 felony yields a presumptive sentence of 6.5 years imprisonment. A.R.S. § 13-701(C)(1). The court could impose a mitigated terms as low as 4.5 years, or an aggravated terms as high as 13 years. A.R.S. § 13-702(A). Petitioner’s prior felony convictions exposed him to the aggravated sentencing range, and the court was free to find and consider additional aggravating factors it deemed relevant to selecting the sentence within that range. After finding several Blakelyexempt prior convictions, the court found that Petitioner’s conduct harmed the victim and endangered the public. Accordingly, the court sentenced Petitioner to an aggravated term of ten years imprisonment. (Respondents’ Exh. F)

Applying Blakely, courts within the Ninth Circuit have held a federal habeas petitioner’s “prior conviction alone” is sufficient to support the imposition of “a sentence anywhere within the statutory range.” Jones v. Schriro, No. CV-05-3720-PHX-JAT (DKD), 2006 WL 1794765, * 3 (D.Ariz. June 27, 2006). In Jones, the court found no Blakely violation where petitioner’s aggravated sentence was based, in part, on a prior conviction. Id. at *3 n. 2. The court also noted “ ‘once a jury finds or a defendant admits a single aggravating factor, the Sixth Amendment permits the sentencing judge to find and consider additional factors relevant to the imposition of a sentence up to the maximum prescribed in that statute.’ ” Id. at *2 (quoting State v. Martinez, 115 P.3d 618 (2005)). Thus, the Jones court found Blakely was satisfied once petitioner admitted a single aggravating factor. Id. at *3. In Jones, petitioner admitted either in the written plea agreement, at the change of plea hearing, or at sentencing to three different aggravating factors. Id. Based on Petitioner’s admission of any one aggravating factor, the Jones court found the trial court was authorized to impose a sentence anywhere within the statutory range. Id.

Similarly, in Stokes v. Schriro, 465 F.3d 397, 402-03 (9th Cir.2006), the Ninth Circuit held that:

the Arizona state courts’ interpretation of these [sentencing] provisions does not contradict clearly established federal law [Apprendi/Blakely], A statutory maximum need not be defined by every one of the facts found at trial, so long as the defendant is not exposed to a greater punishment than that authorized solely by those facts (or the fact of a prior conviction) ... Because the twenty-year sentence was authorized by the jury’s findings, no Apprendi violation occurred and therefore the federal habeas petitioner was “not entitled to habeas relief.”

Id. at 402-03 (internal quotations and citations omitted).

In Garcia v. Schriro, No. 06-855-PHX-DGC (DKD), 2006 WL 3292473 (D.Ariz., Nov.9, 2006), the court held that petitioner’s aggravated sentence did not violate Blakely. The Garcia court explained the “trial court properly considered petitioner’s prior convictions as an aggravating circumstance that increased the maximum allowable sentence under Blakely. Once the new maximum was established, the court was free to consider the other aggravating circumstances of parole violation and pecuniary gain in deciding where to sentence petitioner within the new maximum range.” Id. at *2. In so finding, the court explained that Petitioner’s admission of pecuniary gain in the plea agreement was sufficient to establish an aggravating factor in accordance with Blakely. Id. at *3. The court also found that the trial court properly considered petitioner’s pri- or convictions even though the plea agreement provided the state withdrew the allegations of prior convictions. Garcia, 2006 WL 3292473, *2. The court noted the prior convictions were not alleged for enhancement purposes and the court learned of the prior convictions from a probation officer’s pre-sentence investigation report and from petitioner’s counsel. Id.

In Nino v. Flannigan, No. 2:04cv2298-JWS (CRP), 2007 WL 1412493 (D.Ariz., May 14, 2007), the court found petitioner’s aggravated sentence comported with Blakely because one of the aggravating factors, a prior conviction, was Blakelyexempt, and the other aggravating factor was admitted by Petitioner during the plea colloquy. Id. at *4. The court explained, under A.R.S. § 13-702, the existence of a single aggravating factor exposes a defendant to an aggravated sentence.

Similarly, in this case, Petitioner committed theft of a means of transportation with prior felony convictions. Petitioner’s three prior convictions exposed him to the aggravated term of ten years’ imprisonment. The trial court also found other aggravating factors including harm to the victim and public endangerment. (Respondents’ Exh. F) However, the fact that Petitioner committed theft of a means of transportation with prior felony convictions meant that Petitioner was already exposed to the fully aggravated term. Blakely, 542 U.S. at 303-04, 124 S.Ct. 2531. Without any additional findings by a jury, Petitioner’s criminal record expanded the sentencing range to include a fully aggravated sentence of thirteen years. Therefore, Petitioner’s aggravated sentence comports with the Sixth Amendment.

Based on the foregoing, the Court concludes the state court’s decision that Petitioner’s aggravated sentence did not violate the Sixth Amendment is neither contrary to, nor an unreasonable application of Blakely. Contrary to Petitioner’s assertion, the trial court properly considered his prior felony convictions, one of which Petitioner admitted in the plea agreement. (Respondents’ Exh. C) The trial court properly considered the prior felony convictions as aggravated circumstances that increased the maximum allowable sentence under Blakely. Garcia, 2006 WL 3292473, * 2. Once the new maximum was established, the trial court was free to consider other aggravating factors in deciding where to sentence Petitioner within the new maximum sentencing range. Jones, 2006 WL 1794765, * 3; Stokes, 465 F.3d 397, 398-99; Garcia, 2006 WL 3292473, * 2. Because the sentence imposed comported with the Sixth Amendment as construed in Blakely, Petitioner is not entitled to habeas corpus relief.

C. Petitioner’s Notice of Supplemental Authority

After briefing closed in this matter, Petitioner filed a Notice of Supplemental Authority citing Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 871, 166 L.Ed.2d 856 (Jan. 22, 2007), in which the Supreme Court invalidated California’s determinate sentencing law (“DSL”) under the Court’s Apprendi/Blakely jurisprudence. Cunningham does not change the conclusion that Petitioner is not entitled to habeas corpus relief.

In Cunningham, the Supreme Court held that California’s determinate sentencing law (“DSL”) was unconstitutional because it provided that an “upper term” sentence beyond the applicable statutory maximum could be imposed only when a trial judge, not a jury, finds aggravating circumstances. Id. at 868. The Court noted that under California’s DSL, “[a]n element of the charged offense, essential to the jury’s determination of guilt, or admitted in a defendant’s guilty plea”, does not qualify as such a circumstance. 127 S.Ct. at 868. Rather, under California law, “aggravating circumstances depend on facts found discretely and solely by the judge.” Id. The Court concluded that “[b] ecause circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt, ... the DSL violates Apprendi’s bright-line rule: Except for a prior conviction, ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ ” Id.

As discussed below, Cunningham does not apply to this case. First, the factual situation in Cunningham is distinguishable from Petitioner’s situation. California’s sentencing laws prohibited the imposition of a sentence beyond a specified statutory range unless the court made specific findings of “aggravated circumstances” that ranged beyond the fact of a prior conviction. Cunningham, 127 S.Ct. at 862. Unlike Arizona’s sentencing scheme, the California DSL specifically prohibited the trial court from relying on constitutionally compliant aggravating factors to increase a defendant’s sentence. Cunningham, 127 S.Ct. at 868. Specifically, “[ujnder California’s DSL, an upper term sentence may be imposed only when the trial judge finds an aggravating circumstance. An element of the charged offense, essential to a jury’s determination of guilt, or admitted in an defendant’s guilty plea, does not qualify as such circumstance.... Instead, aggravating circumstances depend on facts found discretely and solely by the judge.” Id. (citations omitted). The Supreme Court observed that the “trial judge found by a preponderance of the evidence six aggravating circumstances, among them, the particular vulnerability of Cunningham’s victim, and Cunningham’s violent conduct, which indicated a serious danger to the community.” Id. at 860. None of the aggravating circumstances which the trial court found in Cunningham was a prior conviction or otherwise compliant with Blakely. Defendant in Cunningham had no prior felony convictions and the court concluded that Cunningham’s lack of a criminal record was a mitigating factor. Id. at 860-61.

Unlike Cunningham, Petitioner’s prior convictions-which are exempt from the rule of Apprendi/Blakely — exposed Petitioner to an aggravated sentence under Arizona law. Martinez, 210 Ariz. at 584-85, 115 P.3d at 624-25. The Supreme Court has never held that the Sixth Amendment prohibits the imposition of an elevated sentence where at least one Blakely-exempt aggravating circumstance expands the sentencing range. Accordingly, the Arizona courts’ rejection of Petitioner’s Blakely challenge to his aggravated sentence was neither contrary to, nor an unreasonable application of, clearly established federal law, as established by the holdings of the Supreme Court.

Moreover, the AEDPA requires this Court to limit its review to clearly established federal law that existed at the time of the state court decision at issue. Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)(explaining that “clearly established federal law” in § 2254(d)(1) “refers to the holdings, as opposed to the dicta, of this Court’s decisions as of the time of the relevant state-court decision.”) As the Second Circuit noted in rejecting a Sixth Amendment challenge to judicial findings in a non-capital case:

Later Supreme Court decisions play no role in assessing the reasonableness of the state court decisions (footnote omitted). Accordingly, our appraisal of reasonableness of the state court interpretations of Apprendi may not be influenced by the Supreme Court’s subsequent elucidation in such cases as Blakely v. Washington, [542 U.S. 296, 124 S.Ct. 2531 (2004)] and United States v. Booker, [543 U.S. 220, 125 S.Ct. 738 (2005)]. We conclude that the state courts did not unreasonably apply Apprendi and the cases that preceded it, as understood at the time, and therefore, that Petitioners are not entitled to habeas relief.

Brown v. Greiner, 409 F.3d 523, 533-34 (2nd Cir.2005); Allen v. Reed, 427 F.3d 767, 774 (10th Cir.2005).

In this case, the last non-capital Sixth Amendment case available at the time of the last reasoned decision of the State court in this case was Blakely. In Blakely and its precursor, Apprendi, the trial court had improperly increased the sentencing range based upon the judicial finding of one fact that was not inherent in the jury verdict, not admitted by the defendant, and not a prior conviction. Cunningham, 127 S.Ct. at 856-66 (stating that “Blakely was sentenced to 90 months’ imprisonment, more than 3 years above the standard range, based on the trial judge’s finding that he acted with deliberate cruelty.... The judge could not have sentenced Blakely above the standard range without finding the additional fact of deliberate cruelty. Consequently, that fact was subject to the Sixth Amendment’s jury-trial guarantee.”)(citing Blakely, 542 U.S. at 299-300, 124 S.Ct. 2531).

The Supreme Court has not considered the situation in this case' — where the trial judge imposed a sentence above the statutory maximum based upon one fact that was either Blakely-compliant or Blakelyexempt, and additional facts that were neither found by a jury nor otherwise complied with Blakely. Accordingly, this Court cannot find that the state court’s rejection of Petitioner’s Sixth Amendment/ Blakely claim is either contrary to, or involved an unreasonable application of, clearly establishes federal law, as determined by the United States Supreme Court at the time of the state court’s decision. 28 U.S.C. § 2254(d).

III. Conclusion

In summary, Petitioner has not established a basis for relief under § 2254 and the Petition should be denied.

Accordingly,

IT IS HEREBY RECOMMENDED that Petitioner’s Petition for Writ of Habe as Corpus pursuant to 28 U.S.C. § 2254 (docket # 1) be DENIED.

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court’s judgment. The parties shall have ten days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See, 28 U.S.C. § 686(b)(1); Rules 72, 6(a), 6(e), Federal Rules of Civil Procedure. Thereafter, the parties have ten days within which to file a response to the objections. Failure timely to file objections to the Magistrate Judge’s Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United, States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party’s right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge’s recommendation. See, Rule 72, Federal Rules of Civil Procedure.

July 26, 2007.

1 . Although CR 2003-009497-00IDT was bundled with CR 2003-006701-001DT, Petitioner only challenges his sentence in CR 2003-009497-00IDT in the pending Petition.

2 . The Honorable Thomas W. O’Toole presided.