Anthony Leon McCLAIN, Petitioner-Appellant, v. Dora B. SCHRIRO; et al., Respondents-Appellees, 369 F. App'x 849

MEMORANDUM Arizona state prisoner Anthony Leon McClain appeals from the district court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm. McClain contends that his aggravated sentence violates the Sixth Amendment because the trial court relied on judge-found aggravating factors to sentence him above the presumptive sentencing range. As an initial matter, we reject the State’s contention that McClain has failed to exhaust this claim. See Scott v. Schriro, 567 F.3d 573, 583 (9th Cir.2009) (per curiam).

Because the state trial judge relied on at least one permissible factor in enhancing McClain’s sentence, the Arizona Supreme Court’s decision rejecting this claim was neither contrary to, nor an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1); see also Butler v. Curry, 528 F.3d 624, 643 (9th Cir.2008). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.