FILED
NOT FOR PUBLICATION
OCT 28 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL DAVID BENSON, Sr., No. 15-35455
Petitioner-Appellant, D.C. No. 2:12-cv-01099-MA
v.
MEMORANDUM*
JERI TAYLOR,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Oregon
Malcolm F. Marsh, District Judge, Presiding
Argued and Submitted October 6, 2016
Portland, Oregon
Before: THOMAS, Chief Judge, and CLIFTON and NGUYEN, Circuit Judges.
Michael Benson appeals the district court’s denial of his 28 U.S.C. § 2254
habeas petition challenging his felony murder conviction. We affirm the judgment
of the district court for the reasons set forth in detail in the district court’s opinion
dated June 8, 2015.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
We agree with the district court that (1) Benson’s claims are not
procedurally defaulted given the objections at trial and the fact that the Oregon
Court of Appeals did not expressly invoke a procedural bar, see Smith v. Or. Bd. of
Parole & Post-Prison Supervision, 736 F.3d 857, 860 (9th Cir. 2013); (2) the state
trial court’s admission of certain statements was contrary to, or an unreasonable
application of the Supreme Court’s decisions in Bruton v. United States, 391 U.S.
123 (1968) and Gray v. Maryland, 523 U.S. 185 (1998); and (3) the constitutional
error was harmless given Benson’s own testimony, the testimony of Frank Perotte,
and other corroborating evidence, see Brecht v. Abrahamson, 507 U.S. 619, 637
(1993).
AFFIRMED.
2