Tyree Harris v. Jeff Premo, Superintendent

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NOT FOR PUBLICATION JUL 10 2014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.