Wright v. Dexter (CA9)

Wright v. Dexter, No. 08-73272 — The court denied permission to file a second or successive § 2254 petition raising a claim under Cunningham v. California, 549 U.S. 270 (2007), because Cunningham did not announce a new rule of constitutional law.

CA9 — memorandum disposition

Nielsen v. Miller-Stout, No. 07-35872 (argued) — The petitioner was convicted in Washington state courts of homicide charges.  The statutory maximum sentence for the crime was life in prison, but the sentencing guidelines provided a range of 240 to 320 months.  The judge imposed a sentence of 640 months, applying three enhancements under Washington’s guidelines scheme.  The petitioner’s conviction became final on direct review in 2003, before Blakely v. Washington, 542 U.S. 296 (2004), was decided.  He sought habeas relief for the Blakely violation; the district court denied it, and the Ninth Circuit affirmed.  Blakely is not retroactive to cases final on direct appeal, even those cases that became final after Apprendi v. New Jersey, 530 U.S. 466 (2000), was decided.