FILED: July 15, 2009

IN THE COURT OF APPEALS OF THE STATE OF OREGON

JEFFREY JOHN FRIAS,
aka Jeffery John Frias,
aka Jeff Frias,

Petitioner-Appellant,

v.

RICK COURSEY,
Superintendent,
Eastern Oregon Correctional Institution,

Defendant-Respondent.

Umatilla County Circuit Court
CV081391
A140134

Christopher R. Brauer, Judge.

Submitted on June 22, 2009.

James N. Varner filed the brief for appellant.

John R. Kroger, Attorney General, Erika L. Hadlock, Acting Solicitor General, and Denis M. Vannier, Assistant Attorney General, filed the brief for respondent.

Before Wollheim, Presiding Judge, and Brewer, Chief Judge, and Deits, Senior Judge.

PER CURIAM

Affirmed.

PER CURIAM

Petitioner was convicted of various sexual offenses and was sentenced to a total of 360 months in prison.  In a petition for post-conviction relief, petitioner argued that his sentences, which included an upward departure sentence based on judicial factfinding, violated his right to a jury trial under the Sixth Amendment to the United States Constitution as set forth in Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), and Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000).  The post-conviction court dismissed the petition as untimely and successive under ORS 138.550(3), and petitioner appeals.

On appeal, petitioner argues that the trial court erred in dismissing his petition because Blakely and Apprendi apply retroactively on collateral review.  Petitioner concedes that the Oregon Supreme Court has previously held to the contrary.  Miller v. Lampert, 340 Or 1, 125 P3d 1260 (2006) (adhering to its conclusion in Page v. Palmateer, 336 Or 379, 84 P3d 133 (2004), that Apprendi does not apply retroactively). Nonetheless, he contends that Miller was wrongly decided in light of the United States Supreme Court's decision in Danforth v. Minnesota, 552 US ___, 128 S Ct 1029, 169 L Ed 2d 859 (2008).  In petitioner's view, Danforth specifically calls into question the reasoning in Miller and PageSee Danforth, 128 S Ct at 1039 n 14 (describing the decision in Page as "misguided").  Whatever the merits of petitioner's argument, it is properly addressed to the Oregon Supreme Court.

Affirmed.


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