Michael David Lendahl v. PALOSAARI, Warden ASPC Douglas and STATE OF ARIZONA ATTORNEY GENERAL

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Jane A. Restani, Judge of the United States Court of**
International Trade, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL DAVID LENDAHL,
Petitioner - Appellant,
v.
PALOSAARI, Warden ASPC Douglas and
STATE OF ARIZONA ATTORNEY
GENERAL,
Respondents - Appellees.
No. 09-15496
D.C. No. 2:07-cv-02003-MHM
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Mary H. Murguia, District Judge, Presiding
Argued and Submitted November 3, 2010
Stanford, California
Before: THOMAS and IKUTA, Circuit Judges, and RESTANI, Judge.**
FILED
NOV 09 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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2
Although Lendahl exhausted his claim that his sentence was improperly
enhanced because a judge, not a jury, found the facts underlying the enhancement,
we affirm the district court’s denial of his federal habeas petition. The state court’s
denial of Lendahl’s claim was not an unreasonable application of clearly
established Federal law, because no Supreme Court precedent clearly establishes
that a prior conviction must be proved to a jury when it is used as a sentencing
factor. See Almendarez-Torres v. United States, 523 U.S. 224 (1998). Further,
Lendahl’s claim that he did not knowingly and intelligently waive his right to a
jury determination of any aggravating factors is unavailing, given that Lendahl’s
plea agreement and colloquy reflect that he knew and understood his jury-
sentencing rights, consulted his attorney regarding those rights and the
consequences of waiving them, and then agreed, orally and in writing, to give up
those jury-sentencing rights.
AFFIRMED.

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