                                                                              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                           NOT FOR PUBLICATION                                 JUL 10 2014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.
