Dan Nichols v. Jack McCormick Warden

Nichols was convicted in state court of kidnapping and assault. The court sentenced him to ten years for kidnapping and six months for assault. It imposed an additional ten years, to run consecutively to the other sentences, for using a firearm while engaged in the commission of an offense, under the Montana weapons enhancement statute.

Having exhausted his state court remedies, Nichols petitioned for habeas relief, alleging that the enhancement of his sentence violated his constitutional rights under McMillan v. Pennsylvania, 477 U.S. 79 , 106 S.Ct. 2411 , 91 L.Ed.2d 67 (1986). He noted that the charging document filed by the state did not charge him with violating the weapons enhancement statute. He argued that the enhancement of his sentence deprived him of his right to due process and his right to a jury determination on the elements of the crime, in violation of the Sixth and Fourteenth amendments. The district court denied his petition. Nichols v. McCormick, 738 F.Supp. 362 (D.Mont.1990). We affirm.

We review de novo the denial of a petition for writ of habeas corpus. Tinsley v. Borg, 895 F.2d 520, 523 (9th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 974 , 112 L.Ed.2d…