Ronald Richard Rees v. Jean Hill, Superintendent Hardy Myers

Ronald R. Rees, a prisoner of the State of Oregon, seeks leave to file a successive habeas petition. We have jurisdiction under 28 U.S.C. § 2244 . For the reasons set forth below, we deny Rees’ request.

In order to obtain leave to file a successive habeas petition, Rees must show that his underlying claim (1) relies on a new rule of constitutional law, (2) made retroactive to cases on collateral review by the Supreme Court, (3) that was previously unavailable. 28 U.S.C. § 2244 (b)(2)(A), (3)(A), (3)(C). Rees’ underlying claim is that his sentence is unconstitutional under the Supreme Court’s recent decision in Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). In Apprendi , the Court held that “[ojther than the fact of a prior conviction, 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.” Id. at 490 , 120 S.Ct. 2348 . According to Rees, his sentence violates Apprendi because, despite Oregon’s statutory maximum of 20 years for first degree sodomy (the crime for which he was convicted), he received a sentence of 30 years after the judge…