Burdge

MEMORANDUM **

William Burdge appeals the district court’s denial of his federal habeas petition. We have jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253 . We reverse the judgment of the district court and remand, and instruct the district court to issue a writ of habeas corpus.

*75 I.

Burdge committed three criminal offenses over a span of three months. 1 In 1994, Burdge was convicted of each offense in three separate trials, and his cases were consolidated for sentencing.

At Burdge’s sentencing hearing on October 26, 1994, the State recommended that the judge apply Oregon Revised Statute § 137.685 when calculating Burdge’s sentence. Section 137.635 provides:

Each of Burdge’s offenses involved at least one felony enumerated in section 137.635. However, Burdge had not been convicted of any such felony before committing the crimes for which he faced sentencing.

Burdge’s trial counsel, Martin Birn-baum, did not object to the application of section 137.635 to Burdge. Instead, he made the following argument in response to the State’s recommendation that the judge apply section 137.635:

The judge followed the State’s recommendation and applied section 137.635. The judge…