Tyree Harris v. Jeff Premo, Superintendent

582 F. App'x 771

Opinion

MEMORANDUM **

Tyree Harris’ claim that his sentence violated the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is not procedurally defaulted. The Oregon Court of Appeals rejected Harris’ claim without discussion or citation. “[T]hat absence of a citation coupled with the cursory statement denying the [appeal] satisfies the exhaustion requirement.” Smith v. Oregon Bd. of Parole & Post-Prison Supervision, Superintendent, 736 F.3d 857, 861 (9th Cir.2013). Even if the state court could have relied upon State v. Crain, 177 Or.App. 627, 33 P.3d 1050 (2001), overruled on other grounds by State v. Caldwell, 187 Or.App. 720, 69 P.3d 830 (2003), to reject the claim, the court did not “clearly and expressly base[ ] its decision on state-law grounds.” Nitschke v. Belleque, 680 F.3d 1105, 1112 (9th Cir.2012).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.