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NITSCHKE v. BELLEQUE

No. 10-36121.

680 F.3d 1105 (2012)

Michael Eric NITSCHKE, Petitioner-Appellant, v. Brian BELLEQUE, Respondent-Appellee.

United States Court of Appeals, Ninth Circuit.

Filed May 24, 2012.

Attorney(s) appearing for the Case

Robert Hamilton , Pacific Northwest Law LLP, Portland, OR, for petitioner-appellant Michael Eric Nitschke.

John R. Kroger , Attorney General; Mary H. Williams , Solicitor General; Erin G. Lagesen , Assistant Attorney General (argued), Oregon Department of Justice, Salem, OR, for respondent-appellee Brian Belleque.

Before: RAYMOND C. FISHER, RICHARD A. PAEZ, and RICHARD R. CLIFTON, Circuit Judges.

OPINION

PAEZ, Circuit Judge:

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(1).1 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 offender"

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