FILED
NOT FOR PUBLICATION JUL 10 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TYREE DUANE HARRIS, No. 13-35579
Petitioner - Appellee, D.C. No. 3:09-cv-01190-ST
v.
MEMORANDUM*
JEFF PREMO, Superintendent, Oregon
State Penitentiary,
Respondent - Appellant.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted July 7, 2014**
Portland, Oregon
Before: PREGERSON, PAEZ, and WATFORD, Circuit Judges.
Tyree Harris’ claim that his sentence violated the rule of Apprendi v. New
Jersey, 530 U.S. 466 (2000), is not procedurally defaulted. The Oregon Court of
Appeals rejected Harris’ claim without discussion or citation. “[T]hat absence of a
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Page 2 of 2
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, 33 P.3d 1050 (Or. Ct. App. 2001),
overruled on other grounds by State v. Caldwell, 69 P.3d 830 (Or. Ct. App. 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.