Nitschke

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(f). 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 of fender” 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…