Tyree Harris v. Jeff Premo, Superintendent

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.