                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 07 2010

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




                            FOR THE NINTH CIRCUIT



JON NASSET,                                      No. 09-35005

              Petitioner - Appellant,            D.C. No. 1:06-CV-00611-CL

  v.
                                                 MEMORANDUM *
BRIAN BELLEQUE,

              Respondent - Appellee.



                  Appeal from the United States District Court
                           for the District of Oregon
              Owen M. Panner, United States District Judge, Presiding

                             Submitted June 11, 2010 **
                                 Portland, Oregon

Before: THOMPSON and McKEOWN, Circuit Judges, and TIMLIN, Senior
District Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Robert J. Timlin, United States District Judge for the
Central District of California, sitting by designation.
      Jon Nasset, an Oregon state prisoner, appeals the district court’s denial of his

28 U.S.C. § 2254 habeas corpus petition challenging his sentences on counts 4 and

8 of twelve counts of sexual abuse of his step-daughter of which he was convicted.

Nasset argues that his trial counsel rendered ineffective assistance by failing to

object at the sentencing proceeding to the sentences imposed on counts 4 and 8 of

his convictions when those sentences were based on judicial fact-finding under a

preponderance of the evidence standard, violating his right to a trial by jury

guaranteed by the Sixth Amendment to the United States Constitution as

interpreted in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Washington v.

Blakely, 542 U.S. 296 (2004).1 We have jurisdiction under 28 U.S.C. § 1291 and §

2253 and affirm.



      1
        In both his supplemental petition for post-conviction relief before the state
court, and his petition before the district court of Oregon, Nasset raises his
Apprendi/Blakely argument in a two-fold fashion. That is, Nasset first alleges an
independent claim under Apprendi/Blakely, arguing that he is entitled to post-
conviction relief because the State deprived him of his constitutional right to a trial
by jury as guaranteed by the Sixth Amendment. And second, Nasset asserts a
separate Sixth Amendment claim that his trial counsel was ineffective for failing to
object to the Apprendi/Blakely violation. While denying both claims on the
merits, the district court only granted a certificate of appealability as to the
ineffective assistance of counsel claim (in addition to a procedural default issue).
ER 63. Nasset has not moved to expand the certificate of appealability and only
frames the single issue in his Appellant’s Opening Brief as one based on
ineffective assistance of counsel. Therefore, we treat the ineffective assistance of
counsel claim as the only claim on appeal.

                                           2
      As an initial matter, the State argues that Nasset failed to exhaust his

ineffective assistance claim and that it is now procedurally defaulted. We do not

reach this issue but resolve this case on the merits of Nasset’s ineffective assistance

claim. See 28 U.S.C. § 2254(b)(2).

      As noted above, Nasset specifically takes issue with the sentences imposed

on counts 4 and 8 of his twelve counts of convictions. The trial court found at

sentencing that each of counts 4 and 8 alleged conduct which was “a separate

offense, separate harm, [and] separate incident” from the conduct alleged in the

other counts in the indictment. Such findings of discrete criminal episodes under

Oregon’s sentencing scheme did not alter the maximum statutory sentence Nasset

faced for either count. However, such findings did increase the presumptive

sentencing ranges for those counts to 121-130 months (130 months imposed) under

Oregon’s Sentencing Guidelines. Nasset’s trial counsel did not object to the

sentences. In addition, Nasset’s convictions became final after Apprendi was

decided but before Blakely was issued.

      The state post-conviction relief court’s denial of Nasset’s petition for post-

conviction relief was not “contrary to, or an unreasonable application of” the

standard for ineffective assistance claims established in Strickland v. Washington,

466 U.S. 668 (1984). 28 U.S.C. § 2254(d)(1). Nasset cannot show that his trial


                                           3
counsel acted deficiently by failing to object to the sentences imposed on counts 4

and 8 pursuant to the rule announced in Blakely before Blakely was decided. As

we recognized in Schardt v. Payne 414 F.3d 1025 (9th Cir. 2005), every circuit

court that addressed the issue prior to Blakely held that sentences such as Nasset’s

did not offend Apprendi. Id. at 1035 (collecting circuit cases and concluding that

“the rule announced in Blakely was clearly not apparent to all reasonable jurists,

nor was it dictated by precedent”). As such, Nasset simply has no viable argument

that his counsel was deficient in failing to object to the sentences imposed on

counts 4 and 8 before Blakely was decided. As the district court noted, Nasset’s

counsel did not act unreasonably in failing to predict the Blakely decision, a

decision that this court held in Schardt established a new rule of criminal procedure

that cannot be applied retroactively on collateral review to cases that became final

before Blakely was decided.

      AFFIRMED.




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