McClain v. Schriro , 369 F. App'x 849 ( 2010 )

FILED
NOT FOR PUBLICATION MAR 05 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANTHONY LEON McCLAIN, No. 08-15279
Petitioner - Appellant, D.C. No. CV-07-00328-SRB
v.
MEMORANDUM *
DORA B. SCHRIRO; et al.,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Submitted February 16, 2010 **
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
Arizona state prisoner Anthony Leon McClain 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.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
EH/Research
McClain contends that his aggravated sentence violates the Sixth
Amendment because the trial court relied on judge-found aggravating factors to
sentence him above the presumptive sentencing range. As an initial matter, we
reject the State’s contention that McClain has failed to exhaust this claim. See
Scott v. Schriro, 567 F.3d 573, 583 (9th Cir. 2009) (per curiam). Because the state
trial judge relied on at least one permissible factor in enhancing McClain’s
sentence, the Arizona Supreme Court’s decision rejecting this claim was neither
contrary to, nor an unreasonable application of, clearly established federal law.
See 28 U.S.C. § 2254(d)(1); see also Butler v. Curry, 528 F.3d 624, 643 (9th Cir.
2008).
AFFIRMED.
EH/Research 2 08-15279