Scott

MEMORANDUM *

Petitioner-Appellant Bruce Lee Scott challenges his 18-year aggravated sentence for second degree murder. His claim is that his Sixth Amendment rights were violated because the trial judge, and not a jury, found statutory aggravating factors and increased his sentence beyond the presumptive one, citing Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). The district court denied the petition, holding that Scott had *17 procedurally defaulted on the Apprendi claim under Ariz. R.Crim. P. 32.2(a)(3).

1. The right Scott seeks to invoke was not clearly established until Blakely v. Washington, 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004), a decision announcing a new constitutional rule of criminal procedure. See Schardt v. Payne, 414 F.3d 1025, 1038 (9th Cir.2005) (holding Blakely not retroactive). In Blakely , the Court applied Apprendi to a Washington statute that allowed a trial judge to impose an “exceptional” sentence upon his own findings that the defendant acted with “deliberate cruelty.” 542 U.S. at 298, 301 , 124 S.Ct. 2531 . The Court held that this procedure violated Apprendi because the relevant “statutory maximum” for…