Cooper-Smith v. Palmateer

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MICHAEL T. COOPER-SMITH,  No. 03-35794
Petitioner-Appellant,
v.  D.C. No.
CV-00-00848-GMK
JOAN PALMATEER,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding

Argued and Submitted
December 8, 2004—Portland, Oregon

Filed February 16, 2005

Before: Thomas G. Nelson, Johnnie B. Rawlinson,
Circuit Judges, and William W Schwarzer,* District Judge.

Opinion by Judge T.G. Nelson

*The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.

1933
1936 COOPER-SMITH v. PALMATEER

COUNSEL

Stephen R. Sady, Chief Deputy Public Defender, Portland,
Oregon, for the petitioner-appellant.
 COOPER-SMITH v. PALMATEER 1937
Carolyn Alexander, Assistant Attorney General, Salem, Ore-
gon, for the respondent-appellee.

OPINION

T. G. NELSON, Circuit Judge:

Michael Cooper-Smith appeals the district court’s denial of
his writ of habeas corpus for alleged ineffective assistance of
counsel. The district court denied Petitioner’s habeas petition
after declining to expand the record under Rule 7 of the Rules
Governing 28 U.S.C. § 2254 cases. Petitioner objects to this
decision. Petitioner also presents the uncertified issue that his
sentence violated Apprendi v. New Jersey.1 We have jurisdic-
tion pursuant to 28 U.S.C. § 2253. We affirm the district
court’s denial of Petitioner’s habeas petition and its decision
not to expand the record under Rule 7. We decline to expand
the Certificate of Appealability in order to reach Petitioner’s
Apprendi issue.

I. Procedural History and Facts

A. Procedural History

Petitioner Michael Cooper-Smith sought federal habeas
relief on the basis that, inter alia, (1) his state trial counsel
(“Counsel”) rendered ineffective assistance when he failed to
pursue a motion to suppress evidence seized from Petitioner’s
home and to suppress eyewitness identifications; (2) Counsel
rendered ineffective assistance when he failed to call Petition-
er’s doctor, Dr. True, as a witness at Petitioner’s sentencing
hearing; and (3) the trial court violated Petitioner’s constitu-
tional rights under the Fifth, Sixth and Fourteenth Amend-
ments when it imposed a dangerous offender sentence without
the predicate facts being proven to a jury.
1
530 U.S. 466 (2000).
1938 COOPER-SMITH v. PALMATEER
The district court analogized the ineffectiveness claim for
Counsel’s failure to pursue the suppression motion to similar
claims in the guilty plea context. The district court reviewed
the claim unconstrained by 28 U.S.C. § 2254(d)(1)2 because
the Oregon post-conviction trial court applied a standard that
was “contrary to” Supreme Court precedent. The Oregon
court applied a “more probable than not” standard rather than
the Strickland v. Washington3 “reasonable probability” stan-
dard. Applying Strickland, the district court denied the claim
because Petitioner failed to demonstrate prejudice. The dis-
trict court also declined to expand the record under Rule 7 to
include a declaration from the Petitioner because he had not
satisfied the requirements of 28 U.S.C. § 2254(e)(2).4
2
Section 2254(d)(1) provides:
An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim —
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States[.]
28 U.S.C. § 2254(d)(1). When a state court’s decision is contrary to
clearly established Supreme Court precedent, “a federal court will be
unconstrained by § 2254(d)(1).” Williams v. Taylor, 529 U.S. 362, 405-06
(2000) (“Williams I”).
3
466 U.S. 668, 694 (1984).
4
Section 2254(e)(2) provides:
If the applicant has failed to develop the factual basis of a claim
in State court proceedings, the court shall not hold an evidentiary
hearing on the claim unless the applicant shows that—
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
 COOPER-SMITH v. PALMATEER 1939
The district court also denied the ineffective assistance
claim based on Counsel’s failure to call Dr. True at the sen-
tencing hearing because Petitioner had failed to establish prej-
udice. The district court concluded that Petitioner had failed
to rebut the findings of fact of the post-conviction trial court
that: (1) the sentencing judge considered Dr. True’s report and
the information that was available to Dr. True at the time of
his report; (2) the sentencing judge considered the Pre-
Sentence Investigation Report; (3) the sentencing judge con-
sidered the report and testimony of Dr. Colbach; (4) Petitioner
is exactly the kind of offender for which the dangerous
offender statutes are written; and (5) Petitioner failed to show
his sentence would have differed had Dr. True been called to
testify on his behalf.5 Accordingly, the district court con-
cluded that Petitioner had failed to establish prejudice as the
result of Counsel’s failure to call Dr. True, and that the post-
conviction court’s rejection of his claim was not contrary to,
or an unreasonable application of, Supreme Court precedent.
The district court also declined to expand the record under
Rule 7 to include an affidavit from Dr. True because of Peti-
tioner’s failure to make the showing required by 28 U.S.C.
§ 2254(e)(2).

Finally, the district court denied Petitioner’s Apprendi
claim as meritless because the Apprendi decision has not been
made retroactive to collateral proceedings.

(B) the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for con-
stitutional error, no reasonable factfinder would have found
the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2).
5
See 28 U.S.C. § 2254(e)(1) (requiring that state court factual findings
be presumed correct unless the habeas applicant rebuts that presumption
with clear and convincing evidence).
1940 COOPER-SMITH v. PALMATEER
After the district court denied Petitioner’s habeas petition,
Petitioner received a Certificate of Appealability (“COA”) as
to the ineffective assistance of counsel claims from the district
court. In conjunction with these claims, Petitioner challenges
the district court’s refusal to expand the record under Rule 7.
Petitioner also presents his Apprendi claim as an uncertified
issue. With this procedural posture in mind, we now turn to
the relevant facts from Petitioner’s state court proceedings.

B. Facts

Petitioner was indicted for four counts of rape, four counts
of sodomy, two counts of attempted sodomy, three counts of
kidnapping, and two counts of robbery in connection with a
string of sexual assaults that occurred in the Portland, Oregon
area during the summer of 1987. Prior to Petitioner’s arrest,
police seized clothing, jewelry, photographs, and a machete
pursuant to a search warrant covering Petitioner’s home and
car. Petitioner was arrested and counsel was appointed to rep-
resent him.

Counsel filed motions to suppress the evidence seized from
Petitioner’s home and to suppress eyewitness identifications
from a photo montage.6 During the hearing on the motion to
suppress eyewitness identifications, three of the four victims
testified and a police officer summarized the information the
fourth victim provided. The victims recounted how they had
met Petitioner and detailed the sexual assaults. All three of the
victims identified Petitioner as their attacker. At the conclu-
sion of the hearing, the judge approved the propriety of the
photo montage and denied the motion to suppress the eyewit-
ness identification.

After this hearing, Petitioner agreed to waive his right to a
jury trial on the rape charges and to try each of his cases to
6
The montage included a photograph seized from Petitioner’s home dur-
ing the execution of the search warrant.
 COOPER-SMITH v. PALMATEER 1941
the court upon stipulated facts. Because of the stipulation,
Counsel abandoned the outstanding motion to suppress evi-
dence before the court held a hearing on that motion. In
exchange for the stipulation, the state agreed to dismiss the
other charges. Based upon the facts to which Petitioner stipu-
lated, the court found Petitioner guilty of four counts of rape
in the first degree and ordered a dangerous offender evalua-
tion for sentencing purposes.

Prior to the sentencing hearing, doctors for both the state
and Petitioner evaluated Petitioner to determine whether he
should be classified a dangerous offender. The state’s doctor,
Dr. Colbach, concluded from his evaluation that petitioner
had an antisocial personality and met the requirements of the
dangerous offender statute. He testified to that effect at the
hearing. Petitioner’s doctor, Dr. True, concluded that although
Petitioner had the propensity to act dangerously under certain
environmental circumstances, he should not be considered a
dangerous person. Counsel did not call Dr. True as a witness,
although Counsel did submit his report to the court. Ulti-
mately, the trial judge concluded that Petitioner met the defi-
nition of a dangerous offender for purposes of a sentencing
enhancement under Oregon Revised Statute § 161.725, which
provided for an enhanced sentence of 30 years.7 Accordingly,
7
The statute, as it existed in 1987, set forth the following criteria for
imposing a dangerous offender sentence:
[T]he maximum term of an indeterminate sentence of imprison-
ment for a dangerous offender is 30 years, if the court finds that
because of the dangerousness of the defendant an extended
period of confined correctional treatment or custody is required
for the protection of the public and if it further finds, as provided
in ORS 161.735, that one or more of the following grounds exist:
(1) The defendant is being sentenced for a Class A felony,
and the court finds that the defendant is suffering from
a severe personality disorder indicating a propensity
towards criminal activity.
OR. REV. STAT. § 161.725.
1942 COOPER-SMITH v. PALMATEER
the trial court imposed thirty-year sentences for all four rape
convictions.

Petitioner pursued a direct appeal on unrelated issues. The
Oregon Court of Appeals denied the appeal without opinion,
and the Oregon Supreme Court denied review.

Petitioner now argues that: (1) the district court improperly
declined to expand the record; (2) the Oregon post-conviction
trial court’s opinion was contrary to, or an unreasonable appli-
cation of, clearly established Supreme Court precedent; and
(3) the trial court violated Petitioner’s constitutional rights
under the Fifth, Sixth and Fourteenth Amendments when it
imposed a dangerous offender sentence without the predicate
facts being proven to a jury. We disagree and affirm the dis-
trict court.

II. The District Court Properly Declined to Expand the
Record

[1] Rule 7 of the Rules Governing § 2254 cases allows the
district court to expand the record without holding an eviden-
tiary hearing.8 Petitioner argues that expansion of the record
under Rule 7 should be granted without regard for the require-
ments of 28 U.S.C. § 2254(e)(2). We conclude, however, that
those requirements do apply.

[2] The Supreme Court recently made clear in Holland v.
Jackson,9 that the conditions of § 2254(e)(2) generally apply
to Petitioners seeking relief based on new evidence, even
when they do not seek an evidentiary hearing.10 An exception
to this general rule exists if a Petitioner exercised diligence in
8
28 U.S.C. foll. § 2254, R. 7.
9
___ U.S. ___, 124 S. Ct. 2736 (2004).
10
Id. at 2738 (explaining that the restrictions of § 2254(e)(2) should
apply “when a prisoner seeks relief based on new evidence without an evi-
dentiary hearing”) (emphasis in original).
 COOPER-SMITH v. PALMATEER 1943
his efforts to develop the factual basis of his claims in state
court proceedings.11 We hold that this exception does not
apply because, as discussed below, Petitioner did not exercise
the required diligence. Thus, under Holland, he must comply
with § 2254(e)(2) in order to expand the record under Rule 7.12

[3] Petitioner offered additional evidence in the district
court to bolster his ineffective assistance of counsel claims.
Specifically, Petitioner offered (1) his declaration that he
never would have entered into a stipulated agreement had he
known about a viable motion to suppress, and (2) Dr. True’s
affidavit regarding what he would have testified to if called as
a witness. Although Petitioner knew of the existence of the
information contained in the declaration and affidavit at the
time of his state court proceedings, he did not present it dur-
ing those proceedings. As a result, Petitioner failed to develop
the factual basis for his claim diligently. “Diligence for pur-
poses of the opening clause [of § 2254(e)(2)] depends upon
whether [Petitioner] made a reasonable attempt, in light of the
information available at the time, to investigate and pursue
claims in state court[.]”13 The failure to investigate or develop
a claim given knowledge of the information upon which the
claim is based, is not the exercise of diligence.14 Conse-
quently, the constraints of § 2254(e)(2) apply to Petitioner’s
attempt to introduce the evidence in the district court.15 There-
fore, the district court correctly required Petitioner to make a
showing under § 2254(e)(2) in order to expand the record
under Rule 7.
11
See Williams v. Taylor, 529 U.S. 420, 437 (2000) (“Williams II”).
12
It is unclear whether a de novo or abuse of discretion standard should
apply to this issue. However, we need not decide this complex issue
because under either standard, the district court properly declined to
expand the record.
13
Williams II, 529 U.S. at 435.
14
See id. at 439-40.
15
See id. at 437.
1944 COOPER-SMITH v. PALMATEER
[4] To meet the burden § 2254(e)(2) imposed, Petitioner
had to show that his claim was based either on a new retroac-
tive rule of constitutional law, or on “a factual predicate that
could not have been previously discovered through the exer-
cise of due diligence.”16 Petitioner has not made either show-
ing. Petitioner does not argue that a new retroactive rule of
constitutional law applies to his ineffective assistance of
counsel claim, nor could he. Additionally, as previously dis-
cussed, Petitioner was aware of the factual predicates for his
claim during his state court proceedings. Accordingly, Peti-
tioner cannot make the showing § 2254(e)(2) requires. There-
fore, the district court properly declined to expand the record
under Rule 7 in this case.

III. Ineffective Assistance of Counsel

We may grant Petitioner’s application for a writ of habeas
corpus on his ineffective assistance of counsel claim only if
the Oregon post-conviction trial court’s decision17 was “con-
trary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States.”18 The only definitive source of clearly
established federal law under 28 U.S.C. § 2254(d) is Supreme
Court precedent at the time of the state court’s decision.19
16
28 U.S.C. § 2254(e)(2).
17
“In conducting our review, we look to the last reasoned state-court
decision.” Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir. 2003), cert.
denied, ___ U.S. ___, 124 S. Ct. 2105 (2004). In this case, because the
Oregon Court of Appeals affirmed without opinion, and the Oregon
Supreme Court denied review, we review the Oregon post-conviction trial
court’s opinion.
18
28 U.S.C. § 2254(d)(1). We may also grant an application for a writ
of habeas corpus if the state court decision “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)(2). Petitioner does not invoke this
potential basis for relief.
19
Williams I, 529 U.S. at 412; Clark v. Murphy, 331 F.3d 1062, 1069
(9th Cir.), cert. denied, 540 U.S. 968 (2003).
 COOPER-SMITH v. PALMATEER 1945
Supreme Court precedent includes not only the bright-line
rules it establishes but also the legal principles and standards
flowing from it.20 We review the district court’s decision to
deny a 28 U.S.C. § 2254 habeas petition de novo.21

A. Failure to Pursue the Suppression Motion

To resolve Petitioner’s ineffective assistance claim based
on Counsel’s failure to pursue the suppression motion, we
must first decide whether the Oregon post-conviction trial
court’s decision was contrary to, or an unreasonable applica-
tion of, Supreme Court precedent.22 If we conclude that it was,
then we must apply the correct law to the facts of the claim
to determine whether relief is warranted.23 We conclude that
the Oregon post-conviction trial court’s decision was contrary
to clearly established Supreme Court precedent. We also con-
clude that Petitioner’s ineffective assistance of counsel claim
based on Counsel’s failure to pursue a suppression motion
fails because Petitioner has failed to show that Counsel’s
competence fell below an “objective standard of reasonable-
ness.”24

1. Contrary to clearly established Supreme Court
precedent

[5] The Oregon post-conviction trial court decision was
contrary to clearly established Supreme Court precedent
because it applied “a rule that contradicts the governing law
set forth in [Supreme Court] cases.”25 The Oregon post-
conviction trial court applied a “more probabl[e] than not”
20
See Bradley v. Duncan, 315 F.3d 1091, 1101 (9th Cir. 2002).
21
Clark, 331 F.3d at 1067.
22
See Cooperwood v. Cambra, 245 F.3d 1042, 1046 (9th Cir. 2001).
23
See id.
24
Strickland, 466 U.S. at 688.
25
Williams I, 529 U.S. at 405.
1946 COOPER-SMITH v. PALMATEER
standard in assessing whether the motion to quash the search
warrant would have been granted if Counsel had pursued the
motion. Although the Supreme Court has never spoken to
ineffective assistance of counsel standards in the stipulated
facts trial context, because the Court’s precedent includes not
only the bright-line rules it establishes but also the legal prin-
ciples and standards flowing from it, Strickland applies to this
issue.26

[6] In Strickland, the Supreme Court held that “[w]hen a
convicted defendant complains of the ineffectiveness of coun-
sel’s assistance, the defendant must show that counsel’s repre-
sentation fell below an objective standard of reasonableness,”27
and “that there is a reasonable probability that, but for coun-
sel’s unprofessional errors, the result of the proceeding would
have been different.”28 Thus, Strickland established a two-
pronged test for ineffective assistance of counsel claims based
on a “reasonable probability” standard. Accordingly, because
the Oregon court used a “more probabl[e] than not” standard,
its decision on this issue was contrary to clearly established
Supreme Court precedent.29 Because the Oregon post-
conviction trial court’s decision was contrary to clearly estab-
lished Supreme Court precedent, we are not bound by 28
U.S.C. § 2254(d)(1).30 Instead, we review de novo, utilizing
the correct legal standard to determine whether the case war-
rants habeas relief.31

2. Analysis

In order to prevail on his ineffective assistance of counsel
26
See Bradley, 315 F.3d at 1101.
27
Strickland, 466 U.S. at 687-88.
28
Id. at 694.
29
See Williams I, 529 U.S. at 405-06.
30
Id. at 406.
31
See Cooperwood, 245 F.3d at 1046.
 COOPER-SMITH v. PALMATEER 1947
claim, Petitioner has to show that his attorney’s competence
fell below an “objective standard of reasonableness.”32 To
conduct that analysis, “Strickland requires a reviewing court
to ‘determine whether, in light of all the circumstances, the
identified acts or omissions were outside the wide range of
professionally competent assistance.’ ”33 “Judicial scrutiny of
counsel’s performance must be highly deferential”34 and “stra-
tegic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallenge-
able[.]”35

In this case, the Oregon post-conviction trial court made the
following findings of fact:36

1. Trial counsel filed a motion to suppress on
petitioner’s behalf. Prior to the motion being heard,
petitioner decided to enter into a negotiated settle-
ment. Trial counsel was prepared to pursue all of
petitioner’s challenges to the search, had not peti-
tioner decided to enter into a stipulated agreement.
32
Strickland, 466 U.S. at 688; Kimmelman v. Morrison, 477 U.S. 365,
375, 383-87 (1986); Hill v. Lockhart, 474 U.S. 52, 57 (1985).
33
Kimmelman, 477 U.S. at 386 (quoting Strickland, 466 U.S. at 690).
The parties have argued that we must adopt one of two potentially applica-
ble standards from Supreme Court precedent to decide this case. They are:
(1) the ineffectiveness standard for failure to pursue a Fourth Amendment
claim, see Kimmelman, 477 U.S. at 375, 383-87, or (2) the ineffectiveness
standard from the guilty plea context. See Hill, 474 U.S. at 57. We need
not decide which test to apply because under either approach, Petitioner
has to show that his attorney’s competence fell below an “objective stan-
dard of reasonableness.” Kimmelman, 477 U.S. at 375; Hill, 474 U.S. at
57.
34
Strickland, 466 U.S. at 689.
35
Id. at 690.
36
We presume these findings of fact to be correct and Petitioner has “the
burden of rebutting the presumption of correctness by clear and convinc-
ing evidence.” 28 U.S.C. § 2254(e)(1).
1948 COOPER-SMITH v. PALMATEER
2. Trial counsel adequately explained petition-
er’s options and rights to him before he decided to
enter into the negotiated settlement.

Petitioner has failed to rebut these facts.37 Moreover, the
record strongly suggests that Counsel’s decision not to pursue
the motion to suppress after Petitioner agreed to a stipulated
facts trial was a strategic decision.

[7] Accordingly, we conclude that Counsel was prepared to
pursue the motion to suppress and that Counsel and Petitioner
made a strategic choice not to pursue that motion. That choice
falls within the broad range of constitutionally adequate repre-
sentation. As a result, Petitioner’s claim fails the first prong
of the Strickland test.38 Accordingly, Petitioner is not entitled
to habeas relief based on this claim and we affirm.

B. Failure to Call Dr. True at the Sentencing Hearing

[8] When the Supreme Court established the test for inef-
fective assistance of counsel claims in Strickland, the Court
expressly declined to “consider the role of counsel in an ordi-
nary sentencing, which . . . may require a different approach
to the definition of constitutionally effective assistance.”39
Since Strickland, the Supreme Court has not decided what
standard should apply to ineffective assistance of counsel
claims in the noncapital sentencing context. Consequently,
there is no clearly established law in this context. Because the
Supreme Court has not clearly established what constitutes
ineffective assistance in this context, other courts are free to
do so.40
37
See 28 U.S.C. § 2254(e)(1).
38
Because Petitioner must meet both prongs to be entitled to habeas
relief, we do not reach the second prong. Strickland, 466 U.S. at 697.
39
Id. at 686.
40
See Williams I, 529 U.S. at 412-13.
 COOPER-SMITH v. PALMATEER 1949
[9] The Oregon post-conviction trial court appears to have
applied the two-prong Strickland analysis to Petitioner’s
claim for ineffective assistance of counsel based on Counsel’s
failure to call Dr. True at sentencing. In doing so, the court
concluded that Counsel’s decision not to call Dr. True to tes-
tify at the sentencing hearing did not constitute ineffective
assistance of counsel. Although the Supreme Court has not
expanded Strickland to this context, the Oregon post-
conviction trial court was free to do so. Accordingly, the Ore-
gon post-conviction trial court’s conclusion was not “contrary
to”, or “an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States.”41 Consequently, Petitioner is not entitled to
habeas relief on this claim and we affirm.

IV. Uncertified Issue

[10] Ninth Circuit Rule 22-1(e) directs that uncertified
issues raised on appeal “will be construed as a motion to
expand the COA and will be addressed by the merits panel to
such extent as it deems appropriate.”42 “A merits panel may
. . . expand the issues for review to include issues that the
motions panel specifically rejected.”43 “The required showing
for originally obtaining a COA on a claim remains the stan-
dard by which this court reviews the broadening of a COA.”44
That standard requires Petitioner to make a “substantial show-
ing of the denial of a constitutional right.”45

Petitioner alleges a violation of his due process rights based
on Apprendi because his sentence was enhanced based on fac-
tual findings by a judge and not a jury. Petitioner relies on
41
28 U.S.C. § 2254(d)(1).
42
NINTH CIR. R. 22-1(e).
43
Hiivala v. Wood, 195 F.3d 1098, 1104 (9th Cir. 1999) (per curiam).
44
Id.
45
28 U.S.C. § 2253(c)(2).
1950 COOPER-SMITH v. PALMATEER
Blakely v. Washington46 and Schriro v. Summerlin47 for the
proposition that recent Supreme Court cases establish that
Apprendi’s procedural rule must apply retroactively.
Although Petitioner recognizes our contrary ruling in United
States v. Sanchez-Cervantes,48 he argues that intervening
Supreme Court authority has superseded Sanchez-Cervantes.
If higher court authority since a panel decision has “undercut
the theory or reasoning underlying the prior circuit precedent
in such a way that the cases are clearly irreconcilable,” we
may reject the prior opinion as having been effectively over-
ruled.49 That has not occurred with respect to Sanchez-
Cervantes, however.

[11] In Sanchez-Cervantes, we held that “Apprendi does
not apply retroactively to cases on initial collateral review.”50
We explained that as a new rule of constitutional criminal
procedure, Apprendi did not fit under one of the exceptions
for retroactivity provided by Teague v. Lane.51 Only if higher
court authority has undercut this reasoning in such a way that
the cases are clearly irreconcilable may we reject Sanchez-
Cervantes as effectively overruled.52 That determination
requires a review of recent Supreme Court cases.

In Ring v. Arizona,53 the Supreme Court held that “a sen-
tencing judge, sitting without a jury, [may not] find an aggra-
vating circumstance necessary for imposition of the death
penalty.”54 Rather, “the Sixth Amendment requires that [those
46
___ U.S. ___, 124 S. Ct. 2531 (2004).
47
___ U.S. ___, 124 S. Ct. 2519 (2004).
48
282 F.3d 664 (9th Cir. 2002).
49
Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).
50
Sanchez-Cervantes, 282 F.3d at 671.
51
489 U.S. 288 (1989). Sanchez-Cervantes, 282 F.3d at 668-71.
52
Miller, 335 F.3d at 900.
53
536 U.S. 584 (2002).
54
Ring, 536 U.S. at 609.
 COOPER-SMITH v. PALMATEER 1951
circumstances] be found by a jury.”55 In Summerlin, the Court
dismissed the argument that Ring should be retroactive
because it was not a “ ‘watershed rule of criminal procedure’
implicating the fundamental fairness and accuracy of the
criminal proceeding.”56 Thus, Summerlin does not undermine
the reasoning of Sanchez-Cervantes.

In Blakely, the Supreme Court reaffirmed the Apprendi rule
that “ ‘[o]ther than the fact of conviction, any fact that
increases the penalty for a crime beyond the prescribed statu-
tory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.’ ”57 The Court did not discuss
retroactivity. We have held that “the Supreme Court has not
made Blakely retroactive to cases on collateral review.”58
Thus, Blakely does not undermine the reasoning of Sanchez-
Cervantes.

[12] Consequently, neither Summerlin nor Blakely under-
mine our reasoning in Sanchez-Cervantes that the Apprendi
rule is not retroactive and that rule stands. Because Apprendi
is not retroactive, Petitioner cannot make a substantial show-
ing of the denial of a constitutional right that applies to his
case. Therefore, we deny Petitioner’s request to expand the
COA.

V. Conclusion

For the foregoing reasons, the district court’s denial of peti-
tioner’s habeas corpus petition is AFFIRMED.
55
Id.
56
Summerlin, 124 S. Ct. at 2524-26 (quoting Saffle v. Parkes, 494 U.S.
484, 495 (1990) and Teague, 489 U.S. at 311) (some internal quotation
marks omitted).
57
Blakely, 124 S. Ct. at 2536 (quoting Apprendi, 530 U.S. at 490).
58
Cook v. United States, 386 F.3d 949, 950 (9th Cir. 2004).