Paul Remme v. JEAN HILL, Superintendent, Snake River Correctional Institution

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL REMME,
Petitioner - Appellant,
v.
JEAN HILL, Superintendent, Snake River
Correctional Institution,
Respondent - Appellee.
No. 09-35439
D.C. No. 1:07-cv-00273-PA
MEMORANDUM *
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding
Argued and Submitted March 2, 2010
Portland, Oregon
Before: PAEZ, TALLMAN and M. SMITH, Circuit Judges.
Paul Remme appeals from the district court’s denial of his 28 U.S.C. § 2254
habeas corpus petition challenging his conviction and sentence for four counts of
criminal mistreatment under Or. Rev. Stat. § 163.205. We have jurisdiction under
FILED
MAR 12 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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28 U.S.C. § 2253. We review de novo the district court’s denial of the petition,
Gonzalez v. Brown, 585 F.3d 1202, 1206 (9th Cir. 2009), and we affirm.
Remme challenges his convictions on two counts of criminal mistreatment
for which only 11 of the 12 jurors found him guilty. According to Remme, his
conviction by a non-unanimous jury violates his Sixth Amendment rights. Remme
concedes that the Supreme Court upheld Oregon’s system of allowing convictions
by non-unanimous juries in Apodaca v. Oregon, 406 U.S. 404, 406 (1972).
Nonetheless, he contends that the Apodaca plurality opinion is incompatible with
the Supreme Court’s recent decisions in Apprendi v. New Jersey, 530 U.S. 466
(2000), Blakely v. Washington, 542 U.S. 296 (2004), and Cunningham v.
California, 549 U.S. 270 (2007). We need not consider the merits of this argument
because, regardless, we lack the authority to disregard the holding of Apodaca. See
Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (“If
a precedent of this Court has direct application in a case, yet appears to rest on
reasons rejected in some other line of decisions, the Court of Appeals should
follow the case which directly controls, leaving to this Court the prerogative of
overruling its own decisions.”). Because Remme’s challenge to his conviction
fails on the merits, we affirm the denial of habeas relief on this ground without first
determining whether a state procedural bar or failure to exhaust precludes federal

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habeas relief. See 28 U.S.C. § 2254(b)(2); Lambrix v. Singletary, 520 U.S. 518,
525 (1997).
Remme also challenges his sentence on two grounds. First, Remme
contends that the sentencing judge violated his Sixth Amendment rights under
Apprendi, 530 U.S. at 490, and Blakely, 542 U.S. at 303, by sentencing him to a
term of imprisonment above the Oregon sentencing guidelines’ presumptive
sentence on the basis of facts not proven to a jury. Although this sentence did, in
fact, violate the Sixth Amendment under Blakely, it does not entitle Remme to
federal habeas relief because his conviction became final before the Supreme Court
issued its decision in Blakely, and Blakely does not apply retroactively. Schardt v.
Payne, 414 F.3d 1025, 1038 (9th Cir. 2005). Moreover, Remme is not entitled to
relief on the basis of Apprendi alone. Id.
Second, Remme contends that the sentencing judge violated his Sixth
Amendment rights under Apprendi, 530 U.S. at 490, and Blakely, 542 U.S. at 303,
by imposing consecutive sentences on the basis of facts not proven to a jury. This
argument is foreclosed by Oregon v. Ice, which upheld Oregon’s law requiring
judges to find certain facts before imposing consecutive sentences. 129 S. Ct. 711,
714–15 (2009).
AFFIRMED.

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