                                                                              FILED
                            NOT FOR PUBLICATION
                                                                              MAR 09 2017
                     UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


 ISAAC JOHN MULLINS,                             No. 08-17208

                 Petitioner - Appellant,         D.C. No. 2:06-CV-1148-PHX-
                                                 NVW
  v.

 CHARLES L. RYAN, Director of the                MEMORANDUM*
 Arizona Department of Corrections, et al.,

               Respondents - Appellees.


                     Appeal from the United States District Court
                              for the District of Arizona
                       Neil V. Wake, District Judge, Presiding

                     Argued and Submitted September 15, 2016
                             San Francisco, California

Before: GOULD and BERZON, Circuit Judges, and TUNHEIM, Chief District
Judge.**

       Petitioner Isaac Mullins (“Mullins”) challenges his aggravated sentences for

attempted murder and first-degree assault, arguing that he was sentenced in


         *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
          The Honorable John R. Tunheim, Chief United States District Judge for
the District of Minnesota, sitting by designation.
violation of the Sixth Amendment as interpreted in Blakely v. Washington, 542 U.S.

296 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000). We have

jurisdiction under 28 U.S.C. §§ 1291 and 2253. We affirm the district court’s

denial of habeas relief.1

                                            I

      Mullins argues his sentencing violated the Sixth Amendment because no jury

determined any aggravating factor beyond a reasonable doubt. We hold that the

district court erred when it held that the factual basis for Mullins’s plea amounted to

an admission to one or more aggravating factors. Similarly, Mullins did not waive

his Blakely rights by virtue of his guilty plea. State v. Brown, 129 P.3d 947, 952–53

(Ariz. 2006) (en banc). Since Mullins received an aggravated sentence without a

jury finding of any aggravating factor beyond a reasonable doubt, we hold that

Mullins’s sentencing was conducted in a manner contrary to federal law as clearly

established in Blakely. 542 U.S. at 305; see § 2254(d).

      Under Arizona law, only one aggravating factor was necessary to expose

Mullins to the maximum aggravated sentence for each count, State v. Martinez, 115

P.3d 618, 624 (Ariz. 2005) (en banc); thus, any Blakely error is harmless if a jury




       1
           We decline to consider Mullins’s uncertified procedural default claim.

                                            2
would have found at least one aggravator per count. Butler v. Curry, 528 F.3d 624,

648 (9th Cir. 2008) (citing Brecht v. Abrahamson, 507 U.S. 619 (1993)).

      The sentencing judge found that Mullins laid in wait for his victim – an

aggravating factor underlying both the attempted murder and the burglary. Mullins

did not dispute the evidence presented at his sentencing hearing that he laid in wait

prior to the burglary and again prior to attacking the victim,2 and that evidence was

overwhelming. See Butler, 528 F.3d at 648 n.16 (recognizing that Blakely error

may be harmless when, “without regard to any admission by the defendant,” there is

“overwhelming” evidence of an aggravating circumstance); see also United States

v. Guerrero-Jasso, 752 F.3d 1186, 1204 (9th Cir. 2014) (Berzon, J., concurring)

(“[H]armless-error review in Apprendi cases must respect the principle that a court

may not itself make a finding as to a disputed fact . . . .” (emphasis added)). There

is little doubt that “a jury would have found the relevant aggravating factor[ that

Mullins laid in wait] beyond a reasonable doubt.” Butler, 528 F.3d at 648.

Therefore, this Blakely error had no “substantial and injurious effect” on Mullins’s

sentence. Brecht, 507 U.S. at 637–38.

       2
        “Although we do not consider new admissions made at sentencing in our
harmless error inquiry, we do consider sentencing proceedings insofar as they
would help us adduce what other evidence might have been produced [by a
defendant] at trial, had the question been properly put before the jury.” United
States v. Salazar-Lopez, 506 F.3d 748, 755 (9th Cir. 2007) (citations omitted).

                                           3
                                           II

      Mullins also argues that the determination under Ariz. Rev. Stat. § 13-702(D)

(2001) that mitigating factors are not “sufficiently substantial to call for” a sentence

at or below the presumptive term is “legally essential” before an aggravating

sentence may be imposed, and therefore this determination is subject to the

requirements of Blakely. Mullins thus asserts that it was error for the judge rather

than the jury to consider the mitigating factors and that the error was not harmless.

He does not supply any Arizona precedent supporting his reading of § 13-702(D).

      Mullins made no mention of this supposed Blakely violation in his Arizona

postconviction relief proceedings. Thus, the state court was never given a “fair

opportunity” to address Mullins’s second Blakely claim. Weaver v. Thompson, 197

F.3d 359, 364 (9th Cir. 1999) (“The state courts have [not] been given a sufficient

opportunity to hear an issue when the petitioner has [not] presented the state court

with the issue’s factual and legal basis.”). Therefore, this Court will not consider

Mullins’s second Blakely claim because either it is unexhausted or it is subject to an

implied procedural bar, and Mullins has not shown that any procedural default

exception applies. 28 U.S.C. § 2254(b), (c); Ariz. R. Crim. P. 32.2(a) (“A

defendant shall be precluded from [postconviction] relief . . . based upon any

ground . . . (3) [t]hat has been waived at trial, on appeal, or in any previous


                                            4
collateral proceeding.”); see also Hurles v. Ryan, 752 F.3d 768, 779–80 (9th Cir.

2014) (explaining implied procedural bar doctrine and exceptions and holding that

“Arizona’s waiver rules are independent and adequate bases for denying relief”).




AFFIRMED.




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