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Dunn v. Hill
Citation: 307 F. App'x 83Docket: No. 08-35443
Court: Court of Appeals for the Ninth Circuit; January 7, 2009; Federal Appellate Court
Michael Todd Dunn, an Oregon state prisoner, appeals the district court's denial of his habeas petition under 28 U.S.C. § 2254. The court affirms the decision, addressing two primary claims by Dunn. First, Dunn argues that his rights were violated when the sentencing court imposed a sentence above the presumptive range based on findings made by the judge instead of a jury, citing Apprendi v. New Jersey and Blakely v. Washington. The court rejects this claim, stating that Blakely does not apply because Dunn's sentence was final before the Blakely decision, referencing Schardt v. Payne, which establishes that Blakely does not retroactively apply in collateral review. The court concludes that the state court's rejection of Dunn's Apprendi argument was neither contrary to nor an unreasonable application of established federal law. Second, Dunn claims ineffective assistance of counsel, asserting that his attorney failed to object to the sentence based on Apprendi and did not preserve the issue for direct appeal. The court finds that even if counsel's performance was inadequate, Dunn has not demonstrated a reasonable probability that the outcome would have been different had the error been preserved, citing Strickland v. Washington. The court also states that any potential Blakely error is subject to harmless error review, as established in Washington v. Recuenco. Ultimately, the court concludes that the state court's rejection of Dunn's ineffective assistance claim similarly did not contravene established federal law. The decision is affirmed, with the note that it is not intended for publication or as precedent except under specific circuit rules.