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Michael Eric Nitschke v. Brian Belleque

May 24, 2012

MICHAEL ERIC NITSCHKE, PETITIONER-APPELLANT,
v.
BRIAN BELLEQUE,
RESPONDENT-APPELLEE.



Appeal from the United States District Court for the District of Oregon Owen M. Panner, Senior District Judge, Presiding D.C. No. 1:07-cv-01734-CL

The opinion of the court was delivered by: Paez, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted

November 18, 2011-Portland, Oregon

Before: Raymond C. Fisher, Richard A. Paez, and Richard R. Clifton, Circuit Judges.

Opinion by Judge Paez

OPINION

In this appeal from the denial of habeas relief, we address whether Petitioner Michael Nitschke's Apprendi claim is procedurally defaulted under Oregon's preservation rule. See Or. R. App. P. 5.45(1).*fn1 Nitschke failed to raise at the state trial court level the Apprendi claim that forms the basis of his challenge to his enhanced sentence under Oregon's "dangerous offender" law. Although Nitschke raised the issue in his appeal to the Oregon Court of Appeals, that court declined to consider the merits of the claim because the issue had not been raised in the trial court and did not meet the plain error exception to the preservation rule. Nitschke ultimately sought habeas relief in federal court, but the district court concluded that the Apprendi claim was procedurally defaulted under federal law and dismissed his habeas petition. Because we conclude that the Oregon Court of Appeals' ruling was not interwoven with federal law, we affirm the district court's judgment.

I.

Nitschke was convicted in 1997 in Oregon state court of eight separate counts. One of those counts was manslaughter, a Class A felony. Or. Rev. Stat. § 163.118(3). The maximum sentence for that count of conviction was 20 years of imprisonment. § 161.605. At sentencing, the court found Nitschke to be a "dangerous offender" under Or. Rev. Stat. § 161.735 and increased his sentence to the maximum allowable 30 years. The judge made this finding on the basis of disputed expert testimony concerning Nitschke's mental health. Nitschke did not raise a constitutional or other objection to the court's "dangerous offender" finding at the sentencing hearing.

While Nitschke's case was on direct appeal to the Oregon Court of Appeals, the United States Supreme Court decided Apprendi v. New Jersey, holding that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Apprendi, 530 U.S. 466, 490 (2000). In a supplemental brief, Nitschke raised for the first time an Apprendi challenge to his sentence.

Because the Apprendi argument had not been raised in the trial court, the State argued that the issue was barred by Oregon's preservation rule. This state rule of appellate procedure requires that any matter claimed as error on appeal must have been "preserved"-raised as error in the trial court. Or. R. App. P. 5.45(1). An exception to the preservation requirement is available if the trial court commits "plain error," i.e., makes

(1) an error of law that (2) is apparent and (3) appears on the face of the record. Ailes v. Portland Meadows, Inc., 823 P.2d 956, 959 (Or. 1991);*fn2 State v. Crain, 33 P.3d 1050, 1056 (Or. Ct. App. 2001), rev'd on other grounds, State v. Caldwell, 69 P.3d 830 (Or. Ct. App. 2003). Under Oregon law, an error is ...


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