                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 09 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MICHAEL DAVID LENDAHL,                           No. 09-15496

              Petitioner - Appellant,            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 jury-

sentencing 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.




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