Argued and Submitted May 10, 2013.
Anthony D. Bornstein (argued), Assistant Federal Public Defender, Portland, OR, for Petitioner-Appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Inge D. Wells (argued), Senior Assistant Attorney General, Salem, OR, for Respondent-Appellee.
Appeal from the United States District Court for the District of Oregon, Michael W. Mosman, District Judge, Presiding. D.C. No. 3:09-cv-01020-MO.
Before: ALEX KOZINSKI, Chief Judge, and MARSHA S. BERZON and ANDREW D. HURWITZ, Circuit Judges.
HURWITZ, Circuit Judge:
The central issue before us is whether Smith, an Oregon state prisoner, procedurally defaulted a federal habeas claim. In Harris v. Reed, the Supreme Court instructed that " a procedural default does not bar consideration of a federal claim ... unless the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar."
489 U.S. 255, 263, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (internal quotation omitted). Applying Harris and its Ninth Circuit progeny, we hold that Smith did not default his claim and vacate the district court's dismissal of his habeas petition.
While on patrol, Officer Jason Coyle received a report of an altercation. He responded and took statements from two witnesses at the scene, Colin Fisher and Keir Mellor. Mellor's statement inculpated Michael Smith, who was charged with first- and second-degree kidnapping, third-degree robbery, and second-degree assault. The case was tried to a judge in a one-day trial.
Fisher did not testify at trial. Mellor was scheduled to testify but did not appear on the morning of trial. The judge recessed the proceedings for several hours to allow the state to locate her. When the trial reconvened, the state explained that it was unable to secure Mellor's presence and argued that she was unavailable. The state then sought to admit her statement to Coyle under three hearsay exceptions in Oregon's Evidence Code (OEC): excited utterance (OEC 803(2)), statement of emotional or physical condition (OEC 803(3)), and statement of domestic violence (OEC 803(26)). Smith objected to the admission of the statements on hearsay grounds, but did not raise a Confrontation Clause objection. The judge admitted the statements without identifying the applicable hearsay exception.
Coyle then recounted statements by Mellor that: (1) she and Fisher entered Smith's residence when he was not home; (2) when Smith arrived, he punched, kicked, and hit Fisher with a hand dolly; and (3) Smith took her keys and phone when he left. The judge found Smith guilty of third-degree robbery and second-degree assault.
Smith's direct appeal raised a Confrontation Clause challenge to the introduction of the Mellor statements, relying on Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which was decided after the trial. The Oregon Court of Appeals summarily affirmed the convictions, stating: " We reject without discussion defendant's arguments regarding his convictions." State v. Smith, 204 Or.App. 113, 129 P.3d 208, 208 (2006) (per curiam). However, the court vacated Smith's sentences and remanded for resentencing, finding that the trial judge had improperly imposed an upward departure. Id. at 208-09. The Oregon Supreme Court denied review. State v. Smith, 340 Or. 484, 135 P.3d 319 (2006). After the state filed a motion for reconsideration, the Court of Appeals reinstated the original sentences in a one-sentence opinion: " Motion for relief from default granted; reconsideration allowed; former disposition withdrawn; affirmed." State v. Smith, 207 Or.App. 318, 140 P.3d 1196, 1196 (2006) (per curiam). The Oregon Supreme Court again denied review. State v. Smith, 342 Or. 474, 155 P.3d 52 (2007).
Smith's federal habeas petition asserted that the admission of Mellor's out-of-court statements violated the Sixth Amendment's Confrontation Clause. The district court found the Confrontation Clause claim procedurally defaulted because Smith's hearsay objection at trial did not preserve the claim. The court also found that the cursory rejection of Smith's appeal by the Oregon Court of Appeals did not preserve the constitutional issue for habeas review,
because the state court did not make a written finding of plain error.
Smith argued that the contemporaneous objection rule should not apply because Crawford was decided after his trial. The district court rejected that argument, finding Smith's trial counsel could at least have made a Confrontation Clause challenge under the then-controlling precedent, Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). The district court also found Crawford not sufficiently novel to excuse the absence of a contemporaneous Confrontation Clause challenge.
The appellee Oregon Board of Parole and Post-Prison Supervision (the " state" or " Oregon" ) argues that because the Oregon Court of Appeals did not expressly indicate that it was engaging in discretionary plain error review, the court's opinion cannot be construed to have reached the Confrontation Clause claim. Oregon argues that we therefore must affirm the district court, because we only " construe an ambiguous state court response as acting on the merits of a claim, if such a construction is plausible." Chambers v. McDaniel, 549 F.3d 1191, 1197 (9th Cir.2008). We review de novo the district ...