                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         October 26, 2005
                             FOR THE TENTH CIRCUIT
                                                                           Clerk of Court


    CHRISTOPHER S. VOGT,

               Petitioner-Appellant,

     v.                                                   No. 04-1264
                                                  (D.C. No. 03-WM-448 (MJW))
    JUANITA NOVAK, Warden;                                  (D. Colo.)
    COLORADO ATTORNEY
    GENERAL,

               Respondents-Appellees.


                              ORDER AND JUDGMENT           *




Before KELLY, McKAY , and McCONNELL , Circuit Judges.


          After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       After pleading guilty in Colorado state court to second-degree murder and

robbery and agreeing to a minimum forty-year sentence, Petitioner Christopher S.

Vogt now contends that the forty-eight-year sentence he received is

unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000). Appearing

pro se, he appeals from a final order denying his petition for a writ of habeas

corpus filed pursuant to   28 U.S.C. § 2254. Because we conclude that the

Colorado Court of Appeals did not unreasonably apply     Apprendi to the facts of

his case, we affirm .

                                 I. Background facts

       Mr. Vogt’s sentences were upheld on direct appeal. The Colorado Court

of Appeals held that the sentences were within the range prescribed by law, and

the Colorado Supreme Court denied certiorari. In his state post-conviction

proceedings, Mr. Vogt raised a violation of Apprendi and two other bases for

relief, but the state courts rejected his arguments. He re-urged the same three

grounds in his federal habeas petition. The federal district court denied habeas

relief and denied a certificate of appealability (“COA”). We granted COA on two

issues: whether the district court erred in concluding that Apprendi applied to his

petition and whether he is entitled to relief on his Apprendi claim.




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                               II. Standard of Review

      Because Mr. Vogt filed his § 2254 habeas corpus petition after the date the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) became

effective, its provisions apply to this appeal. See Smallwood v. Gibson, 191 F.3d

1257, 1264 (10th Cir. 1999).

             If a claim was adjudicated on the merits in state court, we
      review the state court ruling under the deferential standard of . . .
      AEDPA. Under AEDPA, a petitioner is entitled to federal habeas
      relief only if he can establish that the state court decision was
      “contrary to, or involved an unreasonable application of, clearly
      established Federal law, as determined by the Supreme Court of the
      United States,” or was “based on an unreasonable determination of
      the facts in light of the evidence presented in the State court
      proceeding.” 28 U.S.C. § 2254(d)(1)-(2); see also Hale v. Gibson,
      227 F.3d 1298, 1309 (10th Cir. 2000). In conducting this inquiry, we
      presume the factual findings of the state trial and appellate courts are
      correct, and we place on the petitioner the burden of rebutting this
      presumption by clear and convincing evidence. 28 U.S.C.
      § 2254(e)(1); Darks v. Mullin, 327 F.3d 1001, 1007 (10th Cir. 2003).
      We review de novo the district court’s legal analysis of the state
      court decision. Valdez v. Ward, 219 F.3d 1222, 1230 (10th Cir.
      2000).

             In applying 28 U.S.C. § 2254(d), we first ask whether the
      principle of federal law invoked by the petitioner was clearly
      established by the Supreme Court at the time of the state court
      judgment. Id. at 1229. If so, we ask whether the state court decision
      was contrary to or involved an unreasonable application of that
      clearly established federal law. Id. A decision is “contrary to”
      federal law “if the state court applied a rule different from the
      governing law set forth in [Supreme Court] cases, or if it decides a
      case differently than [the Supreme Court has] done on a set of
      materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694,
      122 S. Ct. 1843, 152 L. Ed.2d 914 (2002). A state court decision
      involves an “unreasonable application” of federal law “if the state

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       court correctly identifies the governing legal principle from
       [Supreme Court] decisions but unreasonably applies it to the facts of
       the particular case.” Id.

Turrentine v. Mullin , 390 F.3d 1181, 1188-89 (10th Cir. 2004),          cert. denied , 125

S. Ct. 2544 (2005). Here, the Colorado Court of Appeals correctly identified the

governing legal principle from     Apprendi , so we must determine whether its

application to the facts was objectively unreasonable.          Mitchell v. Gibson , 262

F.3d 1036, 1045 (10th Cir. 2001).

                                       III. Analysis

       1. Apprendi applies.      Apprendi was decided after the Colorado Court of

Appeals denied Mr. Vogt’s direct appeal, but before Mr. Vogt’s petition for a writ

of certiorari from the Colorado Supreme Court was denied. Thus, appellee

concedes that Apprendi does apply to Mr. Vogt’s habeas petition because his

conviction was not final at the time     Apprendi was decided.        See Caspari v.

Bohlen , 510 U.S. 383, 390 (1994) (noting that “[a] state conviction and sentence

become final . . . when the availability of direct appeal to the state courts has

been exhausted and the time for filing a petition for a writ of certiorari has

elapsed or a timely filed petition has been finally denied”);        Allen v. Reed ,

No. 03-1185, 2005 WL 2697246, at *2 (10th Cir. Oct. 21, 2005) (accord). We

turn to the second issue on which COA was granted: whether             Apprendi requires

habeas relief.


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       2. Second-degree murder sentence.             Apprendi requires that, even when a

defendant pleads guilty to a crime, “other 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.”

Apprendi , 530 U.S. at 490. In deciding the question of what findings are required

by a jury, “the relevant inquiry is one not of form, but of effect–does the required

finding expose the defendant to a greater punishment than that authorized by the

jury’s guilty verdict?”      Id. at 494. Mr. Vogt contends that his murder sentence

violates Apprendi because the trial court imposed it after noting that he had

committed a “crime of violence,” a fact, he claims, to which he did not plead

guilty. He argues that his sentence therefore exceeds the maximum “presumptive

range” provided by a verdict based on his plea.

       But, as the Colorado Court of Appeals and the federal district court both

noted, second-degree murder is statutorily defined in Colorado as a “per se” crime

of violence that requires no additional fact-finding for imposition of a mandatory

sentence of at least the midpoint, but no more than twice, the maximum

presumptive range.        See R. Doc. 20 at 6; id. Doc. 15 at 13 (relying on   Terry v.

People , 977 P.2d 145 (Colo. 1999), and        People v. Terry , 791 P.2d 374 (Colo.

1990)). Thus, when Mr. Vogt pleaded guilty to second-degree murder, he also

implicitly admitted that it was a crime of violence and he received a sentence to


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which he was exposed by the murder conviction.          See Terry, 791 P.2d at 378

(determining that Colorado’s sentencing scheme, which mandates application of

increased sentences for certain enumerated crimes, operated “not as a sentence-

enhancing statute but as a presumptive penalty statute.”). Under these

circumstances, the state courts’ application of      Apprendi was neither incorrect nor

objectively unreasonable.

       3. Robbery sentence.        As the federal district court pointed out, the

analysis is somewhat different for Mr. Vogt’s robbery sentence, a class four

felony that is not statutorily defined as a per se crime of violence.       See R. Doc. 20

at 7. The presumptive statutory range for robbery is two to six years, but the

court may impose an aggravated, or enhanced, sentence that does not exceed

twelve years if the court “‘concludes that extraordinary . . . aggravating

circumstances are present.’”      Id. (quoting Colo. Rev. Stat. § 18-1-105(6) (1999)).

The state trial court sentenced Mr. Vogt to the maximum aggravated sentence, to

be served concurrently with his murder sentence. Citing           People v. Allen , 78 P.3d

751 (Colo. Ct. App. 2001), the Colorado Court of Appeals held that           Apprendi

principles were not offended. R. Doc. 3, att. 5 at 2.

       The Colorado Court of Appeals distinguished          Apprendi in Allen . In doing

so, it apparently relied on    Apprendi’s statement that it is permissible “for judges

to exercise discretion – taking into consideration various factors relating both to


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offense and offender – in imposing a judgment      within the range prescribed by

statute.” Apprendi , 530 U.S. at 481. The Allen court observed, “Apprendi does

not require the invalidation of the sentencing scheme adopted by the General

Assembly, which creates a presumptive sentence range and permits the trial court,

in its discretion to sentence in aggravated or mitigated ranges based on

unspecified extraordinary aggravating or mitigating factors or circumstances

particularized to the defendant or the offense.”    Allen , 78 P.3d at 755. The Allen

court thus interpreted the words “prescribed statutory maximum” in      Apprendi to

include the maximum aggravated range associated with the offense of conviction.

       We recently determined whether      Allen’s holding was an unreasonable

application of Apprendi , and we held that it was not, at the time   Allen was

written. Allen v. Reed , 2005 WL 2697246, at *7. We stated:

       It was not until the decision in Blakely that the Supreme Court
       clarified the meaning of statutory maximum for     Apprendi purposes.
       Blakely [v. Washington , 542 U.S. 296], 124 S. Ct. at 2531 [(2004)].
       Prior to the issuance of Blakely , the federal circuits unanimously
       believed that the “statutory maximum” was the greatest sentence
       permitted by the statute of conviction , irrespective of what fact-
       finding the court conducted to impose that sentence[.]
       ...
       Indeed, “at the time [Mr. Allen’s] convictions became final, after
       Apprendi but before Blakely , a court would not have felt compelled
       to conclude Blakely’s rule was constitutionally required.”

Id. (quoting United States v. Price , 400 F.3d 844, 848 (10th Cir. 2005),   petition

for cert. filed , (U.S. May 31, 2005 (No. 04-10694)). Because no material facts


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distinguish the case at bar from our   Allen opinion, we are bound by our published

precedent. We therefore conclude that the state court’s application of    Apprendi to

the robbery sentence in Mr. Vogt’s case was likewise not unreasonable.

       Mr. Vogt’s motion to proceed     in forma pauperis is granted.

       The judgment of the district court is     AFFIRMED . The mandate shall issue

forthwith.



                                                        Entered for the Court



                                                        Michael W. McConnell
                                                        Circuit Judge




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