FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL T. COOPER-SMITH, 

No. 03-35794 Petitioner-Appellant,

D.C. No.

v.  CV-00-00848-GMK

JOAN PALMATEER,

OPINION Respondent-Appellee. 

Appeal from the United States District Court

for the District of Oregon

Garr M. King, District Judge, Presiding

Argued and Submitted

December 8, 2004—Portland, Oregon

Filed February 16, 2005

Before: Thomas G. Nelson, Johnnie B. Rawlinson,

Circuit Judges, and William W Schwarzer,* District Judge.

Opinion by Judge T.G. Nelson

*The Honorable William W Schwarzer, Senior United States District

Judge for the Northern District of California, sitting by designation. 

1933
COUNSEL

Stephen R. Sady, Chief Deputy Public Defender, Portland,

Oregon, for the petitioner-appellant. 

1936 COOPER-SMITH v. PALMATEER
Carolyn Alexander, Assistant Attorney General, Salem, Oregon, for the respondent-appellee. 

OPINION

T. G. NELSON, Circuit Judge:

Michael Cooper-Smith appeals the district court’s denial of

his writ of habeas corpus for alleged ineffective assistance of

counsel. The district court denied Petitioner’s habeas petition

after declining to expand the record under Rule 7 of the Rules

Governing 28 U.S.C. § 2254 cases. Petitioner objects to this

decision. Petitioner also presents the uncertified issue that his

sentence violated Apprendi v. New Jersey.

1

 We have jurisdiction pursuant to 28 U.S.C. § 2253. We affirm the district

court’s denial of Petitioner’s habeas petition and its decision

not to expand the record under Rule 7. We decline to expand

the Certificate of Appealability in order to reach Petitioner’s

Apprendi issue. 

I. Procedural History and Facts

A. Procedural History

Petitioner Michael Cooper-Smith sought federal habeas

relief on the basis that, inter alia, (1) his state trial counsel

(“Counsel”) rendered ineffective assistance when he failed to

pursue a motion to suppress evidence seized from Petitioner’s

home and to suppress eyewitness identifications; (2) Counsel

rendered ineffective assistance when he failed to call Petitioner’s doctor, Dr. True, as a witness at Petitioner’s sentencing

hearing; and (3) the trial court violated Petitioner’s constitutional rights under the Fifth, Sixth and Fourteenth Amendments when it imposed a dangerous offender sentence without

the predicate facts being proven to a jury. 

1

530 U.S. 466 (2000). 

COOPER-SMITH v. PALMATEER 1937
The district court analogized the ineffectiveness claim for

Counsel’s failure to pursue the suppression motion to similar

claims in the guilty plea context. The district court reviewed

the claim unconstrained by 28 U.S.C. § 2254(d)(1)2 because

the Oregon post-conviction trial court applied a standard that

was “contrary to” Supreme Court precedent. The Oregon

court applied a “more probable than not” standard rather than

the Strickland v. Washington3“reasonable probability” standard. Applying Strickland, the district court denied the claim

because Petitioner failed to demonstrate prejudice. The district court also declined to expand the record under Rule 7 to

include a declaration from the Petitioner because he had not

satisfied the requirements of 28 U.S.C. § 2254(e)(2).4

2Section 2254(d)(1) provides: 

An application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a State court shall not be

granted with respect to any claim that was adjudicated on the

merits in State court proceedings unless the adjudication of the

claim — 

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States[.]

28 U.S.C. § 2254(d)(1). When a state court’s decision is contrary to

clearly established Supreme Court precedent, “a federal court will be

unconstrained by § 2254(d)(1).” Williams v. Taylor, 529 U.S. 362, 405-06

(2000) (“Williams I”). 

3

466 U.S. 668, 694 (1984). 

4Section 2254(e)(2) provides: 

If the applicant has failed to develop the factual basis of a claim

in State court proceedings, the court shall not hold an evidentiary

hearing on the claim unless the applicant shows that— 

(A) the claim relies on— 

(i) a new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court, that was

previously unavailable; or 

(ii) a factual predicate that could not have been previously

discovered through the exercise of due diligence; and 

1938 COOPER-SMITH v. PALMATEER
The district court also denied the ineffective assistance

claim based on Counsel’s failure to call Dr. True at the sentencing hearing because Petitioner had failed to establish prejudice. The district court concluded that Petitioner had failed

to rebut the findings of fact of the post-conviction trial court

that: (1) the sentencing judge considered Dr. True’s report and

the information that was available to Dr. True at the time of

his report; (2) the sentencing judge considered the PreSentence Investigation Report; (3) the sentencing judge considered the report and testimony of Dr. Colbach; (4) Petitioner

is exactly the kind of offender for which the dangerous

offender statutes are written; and (5) Petitioner failed to show

his sentence would have differed had Dr. True been called to

testify on his behalf.5 Accordingly, the district court concluded that Petitioner had failed to establish prejudice as the

result of Counsel’s failure to call Dr. True, and that the postconviction court’s rejection of his claim was not contrary to,

or an unreasonable application of, Supreme Court precedent.

The district court also declined to expand the record under

Rule 7 to include an affidavit from Dr. True because of Petitioner’s failure to make the showing required by 28 U.S.C.

§ 2254(e)(2). 

Finally, the district court denied Petitioner’s Apprendi

claim as meritless because the Apprendi decision has not been

made retroactive to collateral proceedings. 

(B) the facts underlying the claim would be sufficient to

establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found

the applicant guilty of the underlying offense. 

28 U.S.C. § 2254(e)(2). 

5

See 28 U.S.C. § 2254(e)(1) (requiring that state court factual findings

be presumed correct unless the habeas applicant rebuts that presumption

with clear and convincing evidence). 

COOPER-SMITH v. PALMATEER 1939
After the district court denied Petitioner’s habeas petition,

Petitioner received a Certificate of Appealability (“COA”) as

to the ineffective assistance of counsel claims from the district

court. In conjunction with these claims, Petitioner challenges

the district court’s refusal to expand the record under Rule 7.

Petitioner also presents his Apprendi claim as an uncertified

issue. With this procedural posture in mind, we now turn to

the relevant facts from Petitioner’s state court proceedings. 

B. Facts

Petitioner was indicted for four counts of rape, four counts

of sodomy, two counts of attempted sodomy, three counts of

kidnapping, and two counts of robbery in connection with a

string of sexual assaults that occurred in the Portland, Oregon

area during the summer of 1987. Prior to Petitioner’s arrest,

police seized clothing, jewelry, photographs, and a machete

pursuant to a search warrant covering Petitioner’s home and

car. Petitioner was arrested and counsel was appointed to represent him. 

Counsel filed motions to suppress the evidence seized from

Petitioner’s home and to suppress eyewitness identifications

from a photo montage.6 During the hearing on the motion to

suppress eyewitness identifications, three of the four victims

testified and a police officer summarized the information the

fourth victim provided. The victims recounted how they had

met Petitioner and detailed the sexual assaults. All three of the

victims identified Petitioner as their attacker. At the conclusion of the hearing, the judge approved the propriety of the

photo montage and denied the motion to suppress the eyewitness identification. 

After this hearing, Petitioner agreed to waive his right to a

jury trial on the rape charges and to try each of his cases to

6The montage included a photograph seized from Petitioner’s home during the execution of the search warrant. 

1940 COOPER-SMITH v. PALMATEER
the court upon stipulated facts. Because of the stipulation,

Counsel abandoned the outstanding motion to suppress evidence before the court held a hearing on that motion. In

exchange for the stipulation, the state agreed to dismiss the

other charges. Based upon the facts to which Petitioner stipulated, the court found Petitioner guilty of four counts of rape

in the first degree and ordered a dangerous offender evaluation for sentencing purposes. 

Prior to the sentencing hearing, doctors for both the state

and Petitioner evaluated Petitioner to determine whether he

should be classified a dangerous offender. The state’s doctor,

Dr. Colbach, concluded from his evaluation that petitioner

had an antisocial personality and met the requirements of the

dangerous offender statute. He testified to that effect at the

hearing. Petitioner’s doctor, Dr. True, concluded that although

Petitioner had the propensity to act dangerously under certain

environmental circumstances, he should not be considered a

dangerous person. Counsel did not call Dr. True as a witness,

although Counsel did submit his report to the court. Ultimately, the trial judge concluded that Petitioner met the definition of a dangerous offender for purposes of a sentencing

enhancement under Oregon Revised Statute § 161.725, which

provided for an enhanced sentence of 30 years.7 Accordingly,

7The statute, as it existed in 1987, set forth the following criteria for

imposing a dangerous offender sentence: 

[T]he maximum term of an indeterminate sentence of imprisonment for a dangerous offender is 30 years, if the court finds that

because of the dangerousness of the defendant an extended

period of confined correctional treatment or custody is required

for the protection of the public and if it further finds, as provided

in ORS 161.735, that one or more of the following grounds exist:

(1) The defendant is being sentenced for a Class A felony,

and the court finds that the defendant is suffering from

a severe personality disorder indicating a propensity

towards criminal activity. 

OR. REV. STAT. § 161.725. 

COOPER-SMITH v. PALMATEER 1941
the trial court imposed thirty-year sentences for all four rape

convictions. 

Petitioner pursued a direct appeal on unrelated issues. The

Oregon Court of Appeals denied the appeal without opinion,

and the Oregon Supreme Court denied review. 

Petitioner now argues that: (1) the district court improperly

declined to expand the record; (2) the Oregon post-conviction

trial court’s opinion was contrary to, or an unreasonable application of, clearly established Supreme Court precedent; and

(3) the trial court violated Petitioner’s constitutional rights

under the Fifth, Sixth and Fourteenth Amendments when it

imposed a dangerous offender sentence without the predicate

facts being proven to a jury. We disagree and affirm the district court. 

II. The District Court Properly Declined to Expand the

Record

[1] Rule 7 of the Rules Governing § 2254 cases allows the

district court to expand the record without holding an evidentiary hearing.8

 Petitioner argues that expansion of the record

under Rule 7 should be granted without regard for the requirements of 28 U.S.C. § 2254(e)(2). We conclude, however, that

those requirements do apply. 

[2] The Supreme Court recently made clear in Holland v.

Jackson,

9

 that the conditions of § 2254(e)(2) generally apply

to Petitioners seeking relief based on new evidence, even

when they do not seek an evidentiary hearing.10 An exception

to this general rule exists if a Petitioner exercised diligence in

8

28 U.S.C. foll. § 2254, R. 7. 

9

___ U.S. ___, 124 S. Ct. 2736 (2004). 

10Id. at 2738 (explaining that the restrictions of § 2254(e)(2) should

apply “when a prisoner seeks relief based on new evidence without an evidentiary hearing”) (emphasis in original). 

1942 COOPER-SMITH v. PALMATEER
his efforts to develop the factual basis of his claims in state

court proceedings.11 We hold that this exception does not

apply because, as discussed below, Petitioner did not exercise

the required diligence. Thus, under Holland, he must comply

with § 2254(e)(2) in order to expand the record under Rule 7.12

[3] Petitioner offered additional evidence in the district

court to bolster his ineffective assistance of counsel claims.

Specifically, Petitioner offered (1) his declaration that he

never would have entered into a stipulated agreement had he

known about a viable motion to suppress, and (2) Dr. True’s

affidavit regarding what he would have testified to if called as

a witness. Although Petitioner knew of the existence of the

information contained in the declaration and affidavit at the

time of his state court proceedings, he did not present it during those proceedings. As a result, Petitioner failed to develop

the factual basis for his claim diligently. “Diligence for purposes of the opening clause [of § 2254(e)(2)] depends upon

whether [Petitioner] made a reasonable attempt, in light of the

information available at the time, to investigate and pursue

claims in state court[.]”

13 The failure to investigate or develop

a claim given knowledge of the information upon which the

claim is based, is not the exercise of diligence.14 Consequently, the constraints of § 2254(e)(2) apply to Petitioner’s

attempt to introduce the evidence in the district court.15 Therefore, the district court correctly required Petitioner to make a

showing under § 2254(e)(2) in order to expand the record

under Rule 7. 

11See Williams v. Taylor, 529 U.S. 420, 437 (2000) (“Williams II”). 

12It is unclear whether a de novo or abuse of discretion standard should

apply to this issue. However, we need not decide this complex issue

because under either standard, the district court properly declined to

expand the record. 

13Williams II, 529 U.S. at 435. 

14See id. at 439-40. 

15See id. at 437. 

COOPER-SMITH v. PALMATEER 1943
[4] To meet the burden § 2254(e)(2) imposed, Petitioner

had to show that his claim was based either on a new retroactive rule of constitutional law, or on “a factual predicate that

could not have been previously discovered through the exercise of due diligence.”

16 Petitioner has not made either showing. Petitioner does not argue that a new retroactive rule of

constitutional law applies to his ineffective assistance of

counsel claim, nor could he. Additionally, as previously discussed, Petitioner was aware of the factual predicates for his

claim during his state court proceedings. Accordingly, Petitioner cannot make the showing § 2254(e)(2) requires. Therefore, the district court properly declined to expand the record

under Rule 7 in this case. 

III. Ineffective Assistance of Counsel

We may grant Petitioner’s application for a writ of habeas

corpus on his ineffective assistance of counsel claim only if

the Oregon post-conviction trial court’s decision17 was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court

of the United States.”

18 The only definitive source of clearly

established federal law under 28 U.S.C. § 2254(d) is Supreme

Court precedent at the time of the state court’s decision.19

1628 U.S.C. § 2254(e)(2). 

17“In conducting our review, we look to the last reasoned state-court

decision.” Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir. 2003), cert.

denied, ___ U.S. ___, 124 S. Ct. 2105 (2004). In this case, because the

Oregon Court of Appeals affirmed without opinion, and the Oregon

Supreme Court denied review, we review the Oregon post-conviction trial

court’s opinion. 

1828 U.S.C. § 2254(d)(1). We may also grant an application for a writ

of habeas corpus if the state court decision “was based on an unreasonable

determination of the facts in light of the evidence presented in the State

court proceeding.” 28 U.S.C. § 2254(d)(2). Petitioner does not invoke this

potential basis for relief. 

19Williams I, 529 U.S. at 412; Clark v. Murphy, 331 F.3d 1062, 1069

(9th Cir.), cert. denied, 540 U.S. 968 (2003). 

1944 COOPER-SMITH v. PALMATEER
Supreme Court precedent includes not only the bright-line

rules it establishes but also the legal principles and standards

flowing from it.20 We review the district court’s decision to

deny a 28 U.S.C. § 2254 habeas petition de novo.21

A. Failure to Pursue the Suppression Motion

To resolve Petitioner’s ineffective assistance claim based

on Counsel’s failure to pursue the suppression motion, we

must first decide whether the Oregon post-conviction trial

court’s decision was contrary to, or an unreasonable application of, Supreme Court precedent.22 If we conclude that it was,

then we must apply the correct law to the facts of the claim

to determine whether relief is warranted.23 We conclude that

the Oregon post-conviction trial court’s decision was contrary

to clearly established Supreme Court precedent. We also conclude that Petitioner’s ineffective assistance of counsel claim

based on Counsel’s failure to pursue a suppression motion

fails because Petitioner has failed to show that Counsel’s

competence fell below an “objective standard of reasonableness.”24

1. Contrary to clearly established Supreme Court

precedent 

[5] The Oregon post-conviction trial court decision was

contrary to clearly established Supreme Court precedent

because it applied “a rule that contradicts the governing law

set forth in [Supreme Court] cases.”

25 The Oregon postconviction trial court applied a “more probabl[e] than not”

20See Bradley v. Duncan, 315 F.3d 1091, 1101 (9th Cir. 2002). 

21Clark, 331 F.3d at 1067. 

22See Cooperwood v. Cambra, 245 F.3d 1042, 1046 (9th Cir. 2001). 

23See id. 

24Strickland, 466 U.S. at 688. 

25Williams I, 529 U.S. at 405. 

COOPER-SMITH v. PALMATEER 1945
standard in assessing whether the motion to quash the search

warrant would have been granted if Counsel had pursued the

motion. Although the Supreme Court has never spoken to

ineffective assistance of counsel standards in the stipulated

facts trial context, because the Court’s precedent includes not

only the bright-line rules it establishes but also the legal principles and standards flowing from it, Strickland applies to this

issue.26

[6] In Strickland, the Supreme Court held that “[w]hen a

convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness,”

27

and “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.”

28 Thus, Strickland established a twopronged test for ineffective assistance of counsel claims based

on a “reasonable probability” standard. Accordingly, because

the Oregon court used a “more probabl[e] than not” standard,

its decision on this issue was contrary to clearly established

Supreme Court precedent.29 Because the Oregon postconviction trial court’s decision was contrary to clearly established Supreme Court precedent, we are not bound by 28

U.S.C. § 2254(d)(1).30 Instead, we review de novo, utilizing

the correct legal standard to determine whether the case warrants habeas relief.31

2. Analysis 

In order to prevail on his ineffective assistance of counsel

26See Bradley, 315 F.3d at 1101. 

27Strickland, 466 U.S. at 687-88. 

28Id. at 694. 

29See Williams I, 529 U.S. at 405-06. 

30Id. at 406. 

31See Cooperwood, 245 F.3d at 1046. 

1946 COOPER-SMITH v. PALMATEER
claim, Petitioner has to show that his attorney’s competence

fell below an “objective standard of reasonableness.”

32 To

conduct that analysis, “Strickland requires a reviewing court

to ‘determine whether, in light of all the circumstances, the

identified acts or omissions were outside the wide range of

professionally competent assistance.’ ”

33 “Judicial scrutiny of

counsel’s performance must be highly deferential”

34 and “strategic choices made after thorough investigation of law and

facts relevant to plausible options are virtually unchallengeable[.]”35

In this case, the Oregon post-conviction trial court made the

following findings of fact:36

1. Trial counsel filed a motion to suppress on

petitioner’s behalf. Prior to the motion being heard,

petitioner decided to enter into a negotiated settlement. Trial counsel was prepared to pursue all of

petitioner’s challenges to the search, had not petitioner decided to enter into a stipulated agreement. 

32Strickland, 466 U.S. at 688; Kimmelman v. Morrison, 477 U.S. 365,

375, 383-87 (1986); Hill v. Lockhart, 474 U.S. 52, 57 (1985). 

33Kimmelman, 477 U.S. at 386 (quoting Strickland, 466 U.S. at 690).

The parties have argued that we must adopt one of two potentially applicable standards from Supreme Court precedent to decide this case. They are:

(1) the ineffectiveness standard for failure to pursue a Fourth Amendment

claim, see Kimmelman, 477 U.S. at 375, 383-87, or (2) the ineffectiveness

standard from the guilty plea context. See Hill, 474 U.S. at 57. We need

not decide which test to apply because under either approach, Petitioner

has to show that his attorney’s competence fell below an “objective standard of reasonableness.” Kimmelman, 477 U.S. at 375; Hill, 474 U.S. at

57. 

34Strickland, 466 U.S. at 689. 

35Id. at 690. 

36We presume these findings of fact to be correct and Petitioner has “the

burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). 

COOPER-SMITH v. PALMATEER 1947
2. Trial counsel adequately explained petitioner’s options and rights to him before he decided to

enter into the negotiated settlement. 

Petitioner has failed to rebut these facts.37 Moreover, the

record strongly suggests that Counsel’s decision not to pursue

the motion to suppress after Petitioner agreed to a stipulated

facts trial was a strategic decision. 

[7] Accordingly, we conclude that Counsel was prepared to

pursue the motion to suppress and that Counsel and Petitioner

made a strategic choice not to pursue that motion. That choice

falls within the broad range of constitutionally adequate representation. As a result, Petitioner’s claim fails the first prong

of the Strickland test.38 Accordingly, Petitioner is not entitled

to habeas relief based on this claim and we affirm. 

B. Failure to Call Dr. True at the Sentencing Hearing

[8] When the Supreme Court established the test for ineffective assistance of counsel claims in Strickland, the Court

expressly declined to “consider the role of counsel in an ordinary sentencing, which . . . may require a different approach

to the definition of constitutionally effective assistance.”

39

Since Strickland, the Supreme Court has not decided what

standard should apply to ineffective assistance of counsel

claims in the noncapital sentencing context. Consequently,

there is no clearly established law in this context. Because the

Supreme Court has not clearly established what constitutes

ineffective assistance in this context, other courts are free to

do so.40

37See 28 U.S.C. § 2254(e)(1). 

38Because Petitioner must meet both prongs to be entitled to habeas

relief, we do not reach the second prong. Strickland, 466 U.S. at 697. 

39Id. at 686. 

40See Williams I, 529 U.S. at 412-13. 

1948 COOPER-SMITH v. PALMATEER
[9] The Oregon post-conviction trial court appears to have

applied the two-prong Strickland analysis to Petitioner’s

claim for ineffective assistance of counsel based on Counsel’s

failure to call Dr. True at sentencing. In doing so, the court

concluded that Counsel’s decision not to call Dr. True to testify at the sentencing hearing did not constitute ineffective

assistance of counsel. Although the Supreme Court has not

expanded Strickland to this context, the Oregon postconviction trial court was free to do so. Accordingly, the Oregon post-conviction trial court’s conclusion was not “contrary

to”, or “an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the

United States.”

41 Consequently, Petitioner is not entitled to

habeas relief on this claim and we affirm. 

IV. Uncertified Issue

[10] Ninth Circuit Rule 22-1(e) directs that uncertified

issues raised on appeal “will be construed as a motion to

expand the COA and will be addressed by the merits panel to

such extent as it deems appropriate.”

42 “A merits panel may

. . . expand the issues for review to include issues that the

motions panel specifically rejected.”

43 “The required showing

for originally obtaining a COA on a claim remains the standard by which this court reviews the broadening of a COA.”

44

That standard requires Petitioner to make a “substantial showing of the denial of a constitutional right.”

45

Petitioner alleges a violation of his due process rights based

on Apprendi because his sentence was enhanced based on factual findings by a judge and not a jury. Petitioner relies on

4128 U.S.C. § 2254(d)(1). 

42NINTH CIR. R. 22-1(e). 

43Hiivala v. Wood, 195 F.3d 1098, 1104 (9th Cir. 1999) (per curiam).

44Id. 

4528 U.S.C. § 2253(c)(2). 

COOPER-SMITH v. PALMATEER 1949
Blakely v. Washington46 and Schriro v. Summerlin47 for the

proposition that recent Supreme Court cases establish that

Apprendi’s procedural rule must apply retroactively.

Although Petitioner recognizes our contrary ruling in United

States v. Sanchez-Cervantes,

48 he argues that intervening

Supreme Court authority has superseded Sanchez-Cervantes.

If higher court authority since a panel decision has “undercut

the theory or reasoning underlying the prior circuit precedent

in such a way that the cases are clearly irreconcilable,” we

may reject the prior opinion as having been effectively overruled.49 That has not occurred with respect to SanchezCervantes, however. 

[11] In Sanchez-Cervantes, we held that “Apprendi does

not apply retroactively to cases on initial collateral review.”

50

We explained that as a new rule of constitutional criminal

procedure, Apprendi did not fit under one of the exceptions

for retroactivity provided by Teague v. Lane.

51 Only if higher

court authority has undercut this reasoning in such a way that

the cases are clearly irreconcilable may we reject SanchezCervantes as effectively overruled.52 That determination

requires a review of recent Supreme Court cases. 

In Ring v. Arizona,

53 the Supreme Court held that “a sentencing judge, sitting without a jury, [may not] find an aggravating circumstance necessary for imposition of the death

penalty.”54 Rather, “the Sixth Amendment requires that [those

46___ U.S. ___, 124 S. Ct. 2531 (2004). 

47___ U.S. ___, 124 S. Ct. 2519 (2004). 

48282 F.3d 664 (9th Cir. 2002). 

49Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). 

50Sanchez-Cervantes, 282 F.3d at 671. 

51489 U.S. 288 (1989). Sanchez-Cervantes, 282 F.3d at 668-71. 

52Miller, 335 F.3d at 900. 

53536 U.S. 584 (2002). 

54Ring, 536 U.S. at 609. 

1950 COOPER-SMITH v. PALMATEER
circumstances] be found by a jury.”

55 In Summerlin, the Court

dismissed the argument that Ring should be retroactive

because it was not a “ ‘watershed rule of criminal procedure’

implicating the fundamental fairness and accuracy of the

criminal proceeding.”

56 Thus, Summerlin does not undermine

the reasoning of Sanchez-Cervantes. 

In Blakely, the Supreme Court reaffirmed the Apprendi rule

that “ ‘[o]ther than the fact of 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.’ ”

57 The Court did not discuss

retroactivity. We have held that “the Supreme Court has not

made Blakely retroactive to cases on collateral review.”

58

Thus, Blakely does not undermine the reasoning of SanchezCervantes. 

[12] Consequently, neither Summerlin nor Blakely undermine our reasoning in Sanchez-Cervantes that the Apprendi

rule is not retroactive and that rule stands. Because Apprendi

is not retroactive, Petitioner cannot make a substantial showing of the denial of a constitutional right that applies to his

case. Therefore, we deny Petitioner’s request to expand the

COA. 

V. Conclusion

For the foregoing reasons, the district court’s denial of petitioner’s habeas corpus petition is AFFIRMED. 

55Id. 

56Summerlin, 124 S. Ct. at 2524-26 (quoting Saffle v. Parkes, 494 U.S.

484, 495 (1990) and Teague, 489 U.S. at 311) (some internal quotation

marks omitted). 

57Blakely, 124 S. Ct. at 2536 (quoting Apprendi, 530 U.S. at 490). 

58Cook v. United States, 386 F.3d 949, 950 (9th Cir. 2004). 

COOPER-SMITH v. PALMATEER 1951