APPLETON PICKETT, Jr. v. Gay Hall

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously finds this case suitable for decision without**
oral argument. See Fed. R. App. P. 34(a)(2).
NC/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
APPLETON PICKETT, Jr.,
Petitioner - Appellant,
v.
GAY HALL,
Respondent - Appellee.
No. 07-35686
D.C. No. CV-05-00298-MRH
MEMORANDUM *
Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, District Judge, Presiding
Submitted November 17, 2009**
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
Oregon state prisoner Appleton Pickett, Jr., appeals from the district court’s
judgment dismissing his 28 U.S.C. § 2254 habeas petition. We have jurisdiction
pursuant to 28 U.S.C. § 2253, and we affirm.
FILED
DEC 14 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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NC/Research 07-35686 2
The district court dismissed the petition, in part, on the grounds that it was
untimely. Pickett contends that his petition was timely under 28 U.S.C.
§ 2244(d)(1)(C) because he filed it within one year of the Supreme Court’s
decision in Blakely v. Washington, 542 U.S. 296 (2004). This argument lacks
merit because Pickett has not shown that he filed his petition within a year of the
date on which the right he asserts was “newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral review.” See 28 U.S.C.
§ 2244(d)(1)(C); see also Schardt v. Payne, 414 F.3d 1025, 1038 (9th Cir. 2005)
(concluding that the new rule announced in Blakely does not apply retroactively to
a conviction that was final before that decision was announced).
In light of this disposition, we decline to reach Pickett’s contention that he
has a constitutional right to a unanimous jury verdict.
We construe Pickett’s briefing of an uncertified ineffective assistance of
counsel claim as a motion to expand the certificate of appealability, and we deny
the motion. See 9th Cir. R. 22-1(e); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th
Cir. 1999) (per curiam).
AFFIRMED.

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