F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

M I C H A E L S M I T H ,

Petitioner-Appellant
,

v

.

O R E G O N B O A R

D O F P A R O L E A N D P O S T -P R

I S O N S U P E R

V I S I O N , Superintendent,

Respondent-Appellee

. N o. 11-35338

D.C. No. 3:09-cv-01020- MO

OPI NI ON

A ppeal from the United States District Court for the District of Oreg on Michael W . Mosman, District J udg e, Presiding

Arg ued and Submitted May 1 0, 2013—Portland, Oreg on

F iled November 26, 2013

B efore: Alex Koz inski, Chief J udg e, and Marsha S. B erz on and Andrew D. Hurwitz
, Circuit J udg es.

Opinion by

J udg e Hurwitz ; Dissent by

Chief J udg e Koz inskiS M I T H V

. O R E G O N B O A R

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SUMMARY *

Habeas Corpus

T h e panel vacated the district court’s dismissal o f a 28 U.S .C. § 2254 habeas c orpus petition, holding that petitioner’s claim was not procedurally defaulted.

Petitioner challenged c ertain trial testimony on hearsay
g rounds, but d id not raise a Confrontation Clause objection until his direct appeal. The state appellate cou rt s u m marily affirmed the conviction, and the supreme court affirmed. The panel held that, under Chambers v. McDaniel
, 549 F

. 3d 1191 (9th Cir. 2008), it was plausible to c onstrue the state appellate court’s ambig uous response as acti n g o n the merits o f petitioner’s Confrontation Clause claim.

Chief J udg e Koz ins k i dissented. H e would affirm the district c ourt’s denial of habeas relief on th e gr ound that peti t ioner’s Confrontation Clause c laim is procedurally defaulted and petitioner has failed to show cause a nd prejudice to ex cuse the default.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.S M I T H V

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O L E 3

COUNSEL

Anthony D. B ornst e i n (arg ued), Assistant F ederal Public Defender, Portland, Oreg on, for Petitioner-Appellant.

Ellen F

. Rosenblum, Atto r n e y General, Anna M. J oy ce, S o licitor General, and I n g e D

. W ells (arg ued), Senio r Assistant Attorney General, Salem, Oreg on, for RespondentAppellee.

OP INION

HURW I TZ , Circuit J udg e:

The central issue before us is whe t her Smith, an O reg on state prisoner, procedurally d efaulted a federal habeas c laim. I n Harris v. Reed
, the Supreme Court instruc t e d t h a t “a procedural default does not bar consideration o f a federal claim

. . . unless the last state court rendering a judg ment in the c ase clearly and ex pressly states that its judg ment rests on

a state procedural bar.” 489 U.S. 255, 2 6 3 (1989) (internal quotation omitted). Apply ing H arris and its Ninth Circuit
prog e ny , we hold that Smith did not default his cl a im a nd vacate the district court’s dismissal of his habeas petition.

I.

A.

W h ile on patrol, Officer J ason Coy le received a report o f

an altercation. He responded a nd t ook statements from two witnesses at the scene, Coli n Fi s h er and Keir Mellor. Mellor’s statement inculpat e d Michael Smith, w ho wasS M I T H V

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c h a r ge d w i t h f

irst- and second-degree k id n a p p i n g, t hird-deg r ee robbery
, and second-deg ree assault. The ca s e was tried to a judg e in a one-day trial.

F isher did not testify at t r i al. Mellor was scheduled to testify but did not appear on the morning of trial. The judg e recessed the pro ceeding s for several hours to allow the state to locate her. W hen the trial reconvened, the state ex p lained that it was unable to secure Mellor’s presence and arg u ed that she was unav a i l a b l e

. The state then soug ht to admit her
statement to Coy le under th r ee hearsay ex ceptions in Oreg on’s Evidence Code (OEC): ex cited utter ance ( OEC 803(2)), statement of emotional or phy sical c o n d ition ( OEC 803(3)), and statement of domestic v iolence (OEC 803(26)). Smith objected to the admission of the statements on hearsay
g rounds, b ut did not raise a Confrontation Clause o bjection. The judg e admitted the statements wi thout identify ing the applicable hearsay

ex ception.

Coy le then recounted statements by Mellor that: ( 1 ) s he and F isher entered Smith’s residence when he was not home; (2) when Smith arrived, he punched, k i c ked, and hit F isher

w ith a h and dolly ; and (3) Smith took her key s and p h o n e when he left. The judg e fo u n d Smith g uilty of third-deg r ee robbery and second-deg

ree assault.

B.

Smith’s direct appeal raised a Confrontation Clause challeng e to the introduction of the Mellor statements, rely ing

on Crawford v. W

a shington , 541 U .S. 36 (2004), which was decided a fte r t h e trial. The Oreg o n Court of Appeals

su m marily affirmed the convictions, stating : “W e reject without d iscussion defendant’s arg u ments r eg arding hisS M I T H V

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convictions.” State v. Smith
, 129 P.3d 208, 208 (Or. Ct. App. 2006) (per c u r iam). However, the court v acated Smith’s
sentences and remanded f o r resentencing
, finding that the trial judg e had improperly imposed a n upward departure. Id.
at 208-09. The Oreg o n Supreme Court denied review. State

v. Smith
, 135 P.3d 319 (Or. 2 006). After the state filed a motion for reconsid e ration, the Court of Appeals reinstated the orig inal sentences in a o ne-sentence opinion: “Motion for relief from default g ranted; reconsid eration allowed; f ormer disposition withdrawn; affirmed.” S tate v. Smith
, 140 P.3d 1196, 1196 (Or. C t

. App. 2006) (per curiam). The O reg on Supreme Court ag ain denied review. State v. Smith
, 155 P.3d 52 (Or. 2007).

C.

Smith’s federal habeas petition asserted that the admission o f Mellor’s out-of-court state m e nts violated the Six th 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 th e c u r s o r y rejection o f Smith’s appeal by the Oreg on Court of A ppeals did not preserve the constitut i onal issue for habeas review, because the state court did not make a written finding of plain error.

Smith arg ued that the contemporaneous o bjection r ule should not apply because Crawfor d w as decided after his trial. The district court re j e c t e d that arg ument, finding Smith’s trial counsel c ould at least hav e made a Confrontation Clause challeng e under the then-cont r o l ling precedent, Ohio v

. R oberts
, 448 U .S. 5 6 (1980). The district
court also found Crawford n ot sufficiently novel to ex cuseS M I T H V

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t h e absence of a contemporaneous Confrontation Clau s e challeng e.

II.

The app el l e e Oreg on B oard o f Parole and Post-Prison Supervision (the “state” or “Oreg on”) arg ues that because the Oreg on Court of Appeals did not ex pressly indicate t h a t it

was eng ag ing in discretionary plain error review, the court’s

o pinion cannot be construed to have reached t h e Confrontation Clause claim. Oreg o n arg u es that we therefore
must a ffirm the distri ct court, because w e only “construe an ambig uous state court response as acting on the merits of a claim, if such a construction is p l a u s i ble.” Chambers v

. McDaniel
, 5 49 F .3d 1 191, 1197 (9th Cir. 2008). We r eview de n ovo the district court’s conclusion that the state court decisio n c o uld not plausibly be r ead as acting on the merits. Leavitt v. Arave , 383 F

. 3 d 809, 815 (9th Cir. 2004).

A.

I n Oreg on, an arg ument conce r ning the introduction o f evidence is g enerally barre d on a p peal if not preserved by a contemporaneous object i o n a t trial. Or. R. App. P. 5.45(1). Under Oreg on’s plain error doctri n e , however, an appellate
court may address a d efaulted arg ument if the trial court

c o m m i t t e d error apparent on the face o f the record. State v. Ramirez
, 173 P.3d 817, 821 (Or. 2007). Even if the appellate
court f inds plain error, it must decide whether to ex ercise its discretion to consider that error. Id. I f the appellate court reaches the issue, it must “articulate its reasons for doing so.” State v. Fults
, 173 P.3d 822, 826 (Or. 2007) (en banc) (internal quotation omitted).S M I T H V

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I n Chambers
, w e held that “unless a court ex pressly (not implicitl y ) s t a t es that it is r ely ing u pon a procedural b ar, we must construe an ambig uous state court response as acting on th e m e rits of a c laim, if such a construction is plausible.” 549 F .3d at 1197. T here i s n o warrant to depart from the Chambers rule here. 1 Althoug h an Oreg on court may be required under state law to detail its reasons for ex ercising its discretion to treat an o bjection not raised at trial, the O reg on Court of Appeals mig ht have d eclined to ex ercise that discretion in Smith’s c ase either because of the l a c k o f a contemporaneous objection o r because it concluded that the trial court had not committed plain error.

I ndeed, the cursory reje c t i o n of Smith’s appeal makes it quite p lausible that the Oreg o n Court of Appeals reached the merits of h is Six th Amendme n t c laim. The court treated Smith’s unpreserved Confrontation Clause claim in precisely the same manner as h is plainly preserved state hearsay c laim. Smith’s brief to that court raised onl y the Confrontation Clause and hearsay issues with respect to his convictions, a nd
t he Court of Appeals rejected b oth identically –“with o u t discussion.” Smith
, 1 29 P.3d a t 208. B ecause the Court o f Appeals thus rejected the state hearsay claims on the merits, its failure to treat the federal constitutional arg ume n t separately requires that under Chambers
, we p resume that the

1 T h e d i s sen t co n ten d s t

h at w e “ o v er- read []” Ch a mb ers

. Dissen t at 1 2

. T o t h e c o n t

rary , it is ou r co lleag u e w h o in co rrectly read s Ch a m b ers as d ep artin g f

ro m Nin th Circ u i t p reced en t

. In Ch amb ers , w e co n stru ed an

am b i g u o u s Nev ad a Su

p rem e Co u rt o rd er d en

y in g a h a b e a s p etitio n as a d ecisio n o n t he m erits. 5 4 9 F.3 d at 11 9 8

– 9 9

. In so d o in g , th e p an el

ex p ressly cited an d ap p l ied t h e settled ru le f

i rst a n n ou n ced in Ha rris v. S u p erio r Co u rt , 5 0 0 F.2 d 1 1 2 4, 1 1 2 8 (9 th Cir. 1 9 7 4 ) (en b an c), th at “ w e

m u st co n stru e an a m

b ig u o u s s tate co u rt resp on se as actin g on th e m erits

o f a claim .” C

h a mb ers , 5 4 9 F.3 d at 1 1 9 7

. W e ag ain ap p ly th at ru le to d ay

.S M I T H V

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federal c laim was also rejected on the merits. See Johnson v

. W illiams
,

_ __ U.S. ___, 133 S. Ct. 1088, 1096 (2013) (“W h en

a state court rej e c t s a federal claim without ex pressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits—but that presumption can i n some limited circumstances be rebutted.”).

The d issent’s sug g e stion that w e t o day depart from the teaching of Coleman v. Thompson
, 501 U.S. 722, 736 (1991), is misplaced. Coleman held that the Harris presumption did

n o t a pply when the Virg inia Supreme Court dismissed a n appeal in direct response to a state motion contending that it had been u ntimely filed. Id

. at 740. That dismissal ex pressly indicated that the state court had not treated any federal constitutional issues. Id

. ( “The Virg inia Supreme Court stated plainly that it was g ranti n g the Commonwealth’s motion to dismiss the petition for appeal. T h at m otion was b a s ed solely o n Coleman’s failure to meet the Supreme Court’s time requirements.”). Here, in co ntrast, the O reg on Court o f A ppeals affirmed the denial of post-conviction relief wi thout intimating that its disposition rested on state procedural g

rounds.

B.

Citing Nitschke v. Belleque
, 680 F .3d 1105, 1111 (9th Cir. 2012), Oreg on arg ues that in co n d ucting a plain error analy sis, a state court would simply have determined whether federal law was c lear at the time of Smith’s trial, a nd would
not have independently e valuated the merits o f Smith’s Crawford claim. B ut, in Nitschke the O reg on court ex pressly cited a previous Oreg on opinion holding that an unpreserved federal constitutional claim did n ot q ualify for plain errorS M I T H V

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review. State v. Nitschke , 33 P.3d 1027, 1027 ( Or. Ct. App. 2001) (per c u r i a m) (citing State v. Crain
, 33 P.3d 1050 (Or. Ct. App. 2 001)). W e relied on t h a t citation in d etermining th at the state court acted on procedural g rounds. Nitschke
, 680 F .3d at 1112.

I n contrast, the O r e g on Court of Appeals here rejected Smith’s claim without any d iscussion or c itation. I t is precisely this lack of c larity that invokes the settled Chambers rule: “ where the [state court] includes no citation and simply states that the petition is d enied, that absence o f

a citation coupled with the cur sory statement deny ing the petition satisfie s t h e ex haustion requirement.” 549 F .3d at 1197–98.

C.

F inally
, Oreg on arg ues that the Chambers rule should not apply because its appellate courts reach the me rits o f unpreserved claims only in rare instances. That statement, o f
course, c ould be made about virtually al l s t a te appellate courts; elsewise, the u niversal c o ntempor aneous objection rule w ould be of little conseq u e n c e

. Accepting the state’s
arg ument would effectively r e nder Harris to the dustbin, a s every other state surely c o u ld a lso claim that treatment o f unpreserved constitutional issues o n d irect a p p eal is the infrequent ex ception, rather than the rule. W e are not free to disreg ard the clear g uidance of the Supreme Court, let alone vitiate its opinion in Harris , and reject this g ambit.S M I T H V

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III.

F or the reasons a b o v e, we VACATE the district court’s dismissal of the Petitioner’s habeas petition and R EMAND for further proceeding s consistent with this opinion. 2

Each party

is to bear its own costs.

Chief J udg e KOZ I

NSKI
, dissenting :

The Oreg on Court of Appeals affirmed Smith’s conviction in a o n e -sentence o rder. The majority deploy s a presumption that such a summary disposition const i t u tes a d e c i s ion on the merits of Smith’s f ederal claim unless th e state court “clearly and ex pressly states that its judg ment rests

on a state proc e d

ural bar.” Maj. op. at 3 (quoting H a rris v. Reed
, 48 9 U

. S. 255, 263 ( 1 989)). B ut this presumption

a p plies only when the state court’s ruling fairly appears t o rest primarily on the resolution o f federal claims, o r t o be i n t e rw oven with such claims, neither o f which is the c as e here. W e are therefore bound to conclude that the state court d e cided the c ase o n state-law g rounds, precluding federal relief.

2 B ecau se w e h o ld t h a t Sm ith ’ s f ed eral h ab eas claim w as n o t p ro ced u rally d ef

au lted
, u n lik e o u r d i ssen tin g co lleag u e, w e d o n o t ad d ress

w h eth er th ere is cau se a n d p r e j u d ice to ex cu se a d ef

au lt. S ee Dissen t at 1 7

– 2 0

.S M I T H V

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I

B e fore seeking r elief from a state conviction i n f e deral

co u r t , a prisoner must ex haust all available state remedies. 28 U.S.C. § 2254(b)(1). I f the state court denies relief on an

a d e q u a t e a n d i n d e p e n d e n t s t a t e gr o u n d
, s u c h a s noncompliance with a state procedural r ule, the federal claim is procedurally defaulted and a f ederal court cann o t g rant relief u n l e ss petitioner shows cause for the default a nd prejudice resulting from the alleg ed constitutional violation. W ainwright v. Sykes , 433 U.S. 72, 90–91 (1977).

To de t e r m i ne whether a conviction rests on an adequate and independent state g round, we look to the l ast reasoned decision of the state courts. Y lst v. Nunnemaker
, 501 U.S. 797, 803 (1991). Here there is no reasone d decision: The trial court made no decision because petitioner didn’t object

on Confrontation Clause g rounds, and t h e court of appeals issued o nly summary affirmances. T he ques t i on is, what
must we infer about the basis for the stat e c o u rt’s decision when it mentions no law at all, state or federal?

A

Under Oreg on’s contemporaneous objection rule, Smith

was r e q u i r e d to raise h is Confrontation Clause claim at trial in o rder to preserve it for appeal. Or. R. App. P. 5.45(1). His failure to do s o p r ovides an adequate and independent state g round on which the O reg on Court of Appeals c ould have affirmed his conviction. B u t Oreg on appellate courts have discr et i o n t o consider a defaulted claim if (1) the trial court committed an error of law, (2) that is o bvious, and (3) on the record, if ( 4) doing so i s j u s t ified. Ailes v. Portland Meadows, I

nc. , 823 P.2d 956, 959 (Or. 1991). T o a d d aS M I T H V

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further lay er o f c o m p l e x ity
, a court’s decision to eng ag e in plain-error review d o esn’t neces s a r ily mean that its affirmance rests on r e solution of the federa l claim. This is because the second prong of the plain-error analy s i s—the determination that an er r o r of law is obvious —is itself a question of state law, reliance on which precludes f ed e r al review. See Nitschke v. Belleque , 680 F .3d 1105, 1 112 (9th Cir. 2012).

Althoug h an Oreg on c ourt must articula t e its r easoning when it overturns a trial c ourt decision on plain-error review, it’s not required to do so if it considers the four p rong s a nd finds one of them unsatisfied. Ailes
, 823 P.2d at 9 59. I n such circumstances, we can’t tell w h e ther the state court rejected the claim for failu re to comply with an a dequate a nd independent state rule (a stat e

- l aw ruling ), based on an

assessm e n t of the merits (a f ederal-law ruling ) o r because it found one or more of the four plain-error prong s unsatisfied ( e i t h er a state or federal-law ruling ). This is the situation Smith finds himself in.

B

The majority cites Harris and Chamber s v. McDaniel
, 549 F .3d 1 191 (9th Cir. 2008), for the proposition that a state court’s decision is presumed to rest on federal g rounds unless that co u r t e x pressly states that it’s rely ing on a state procedural bar. B ut this o ver-reads Harris and Chambers
, and contradicts the letter and log ic of our precedent.

Harris presented an ineffective assistance of counsel

c l a im in a state petition f or postconviction relief. The s t a t e court observed that the c l a i m wa s not properly before it because Harris had f

ailed to raise it on direct appeal, b u tS M I T H V

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proceeded to evaluate the merits of the claim and r e jected it. Harris
, 489 U. S

. at 258. The Supreme Court held that “ if it fairly appears th a t t h e state court rested its decision
p r i m arily on federal law
, this Court may reach the fed e ra l question o n review unless the state court’s opinion c onta i n s

a plain statement that [ i ts] decision rests upon adequate a nd ind e pendent state g rounds.” Id

. at 261 (quotation marks omitted) (emphas is added). I n cases like Harris
, where the
state court discusses both fe d e r a l and state law, “[ r] e quiring

a state court to be ex p licit in i t s r e l iance on a procedural default does not interfere unduly with state judicial decisionmaking .” I

d . at 264.

Harris d i d n ’ t f

ocus much on whether the state court’s

o p inion appeared to rest primarily on federal law. B ec a u s e the state court discussed the merits o f Harris’s federal claim

ex tensively
, even thoug h it acknowledg ed that the claim was procedurally d efaulted, nobody doubted i t s reliance on federal-law g rounds. W hat, after all, would be t h e p oint o f discussing federal law if the default was dispositive?

B u t the Supreme Court underscored the importance o f t h is antecedent question two y ears later in Coleman v. Thompson
, 501 U.S. 722 (1991). Coleman soug ht state postconviction relief on numerous federal g round s

. After briefing on the merits, the V i r ginia Supreme Court issued a summary disposition g ranti n g t h e state’s motion to d ismiss. Id

. at 727–28. On habeas review, th e S u p reme Court rejected petitioner’s arg ument that it should a p p l y the Harris presumpti o n i n all cases where f ederal claims are presented
to the state court. Id

. at 736. I nstead, the Court held that the presumption applies only where the state court’s disposition

“ f airly appeared to rest primarily on resolution of t h o s e [ federal] claims, or to be interwoven w ith those claims.” Id

.S M I T H V

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at 735. The state court in Coleman
, u n like that in Harris
, didn’t discu s s either f

ederal o r state-law claims. The Supreme Court held that it would be too intrusive to require the state court to clearly state its reliance on state law in such circumstances: “[ W ]e wi ll not impose on state courts the responsibility for usin g particular lang uag e in every case in which a state prisoner presents a federal claim.” Id . at 739.

The only rule w e c a n reasonably derive from these two

cases is t h a t when a state court discusses both federal a nd
state g rounds in an o pinion, either of which would independently dispose of the c ase, a federal court should
presume that the court relied on th e federal g round. I n such situations, the state court h as already analy z e d t h e merits o f the federal claim, a

n d it would be n o great imposition to require it to tell us if it c onsidered some other g r ound dispositive. B ut when the state court d iscusses the merits o f neither federal nor state-law c laims, as in Coleman
, a pply ing such a presumption as a matter of course trenches on the state judicial process.

As the Supreme Court observed in an analog ous contex t, “requiring a statemen t of reasons could undercut state practices desig ned to p r e serve the integ rity of the case-law
t r a dition. The issuance of summary dispositions in many collateral attack case s c a n enable a state judiciary to concentrate its resources o n the cases where o p inions a re most needed.” Harrington v. Richter
, 131 S. Ct

. 7 7 0
, 784 (2011).

Our own cases, including Chambers
, reflect this approach. Althoug h th e s t at e c ourt in Chambers issued a

c u r s o r y o n e -s e n t e n c e o p i n i o n a ff i r m i n g p e t i t i o n er’s conviction, we were careful to note that “the Nevada SupremeS M I T H V

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Court d id not deny without comment or opinion.” Chambers
, 549 F

. 3d at 1196. I nstead, the state court’s opinion stated that it “considered” all materials filed by the p arties a nd “concluded” that intervention wasn’t appropriate. Id

. B ecause the f

iled materi al s d isclosed that petitioner h ad presented federal claims to the state c ourt, we concluded that the state court “did more than issue a postcard denial,” a nd instead specific ally evaluated and issued a judg ment on the federal claims. Id

. at 1198. This d idn’t announce a rule that all summary adjudications are p resumed to rest on federal
g rounds u nless the state court ex p ressly states to the contrary , as the majority claims. Rather, it stands for the more limited proposition that a federal court may look to the wording a

nd
contex t o f a s tate court’s cursory adjudication to determine whether it fairly appears to rest on t h e resolution of federal claims.

C

There is nothing in Smith’s case supporting an inference that the state c ourt resolved the fed er a l claim. The O reg on Court of Appeals had two opportuniti es to consider Smith’s Confrontation Clause claim. The first time, it remanded for resentencing after briefly affirming h is co n v i ction: “W e reject witho u t d i s c u s s i on d efendant’s arg uments reg arding his convictions.” State v. Smith
, 129 P.3d 208, 208 (Or. Ct. App. 2006) (per c uriam)

. The state moved for reconsideration o f the sentencing r u l ing
, which the c ourt g ranted in one terse sentence: “Motion for relief from default g ranted; reconsideration a l lowed; former disposition withdrawn; affirmed.” S

tate v. Smith
, 140 P.3d 1196, 1196 (Or. Ct. App. 2006) (per curiam).S M I T H V

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Neither of these dispositions remotely sug g ests that it rested on, o r w a s interwoven w ith, Confrontation Clause
g rounds. The state court made no mention of state or federal claims and, unlike the state court in Chambers
, the court here used no lang uag e permitt i ng a plausible inference that it relied on federal rather than state g rounds.

The majority infers that the state court resolved the merits of Smith’s Confrontation Clause claim b e cause it rejected his hearsay claim in the same disposition, and that c laim must have been rejected on the merits, h a v i n g clearly been preserved. B ut Smith’s hearsay claims presented no issue o f f ederal law. T hat the state court rejected Smith’s hearsay claim b ased on state law tells u s nothing ab o u t w h e ther it

r elied on federal law in rejecting his Confrontation C l a u s e claim. There’s no reason t o doubt that the state court resolved both claims on state-law g rounds.

Drawing such a strained inference is particularly dubious when there’s no reason to believe that the O r eg on courts normally decide such matters on feder al g rounds. Ordinary
state practice mig ht not be re l e v ant where the Harris presumption applies, but there’s n o presumption whe n the
state c ourt’s disposit i o n doesn’t fairly appear to rest on a f e d e ral g round. W hen, as here, the state court g ives no indication o f w hat g rounds it’s rely ing on, the fact that it seldom eng ag es in pl ain-error review counsels ag ainst inferring that it did so.

The Supreme Court of Oreg on has held that “ [ i ] t is only in rare and ex ceptional cases that this court w i l l n o t i ce an alleg ed e rror [ on plain-error review] where no ruling has been
soug h t from the trial judg e.” State v. G ornick
, 130 P.3d 780, 783 ( O r. 2006). A nd, even when a court does e n g a ge inS M I T H V

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plain-error analy sis, that d oesn’t ne c essarily mean that it reached the federal g r o unds because the o bviousness prong o f the inquiry is a matter of state law. Nitschke
, 680 F .3d at 1111–12.

II

Procedural default doesn’t alway s bar habeas relief. The
state procedural rule must b e adequate and independent; and,

even where it is, habeas revi e w may still be available if petitioner can show cause and prejudice. Bennett v. Mueller
, 322 F .3d 5 73, 580 (9th Cir. 2003). None of this helps Smith.

A

Smith concedes that Oreg on ’ s c o n t e m p o r a n e o u s o b j e c t i o n rule is independent of f

e d eral law, but claims that it provides

an inadequate basis o n which to deny rel i e f

. As a g eneral

m a t t er, a state procedural rule is a dequate “if it was ‘firmly established and reg ularly followed’ at the time it was a pplied by the state court.” Poland v. S tewart , 169 F .3d 5 73, 577 (9th Cir. 1998) (quoting F ord v. Georgia
, 498 U.S. 411, 424 (1991)). Althoug h Oreg o n courts c an eng ag e in discretionary plain-error r e v i ew, “judicial discretion may be a pplied consistently when it entails ‘ the e x ercise of judg ment according to standard s t h a t , at least over time, can become known a nd understood within reasonable operating limits.’” W ood v. Ha ll
, 130 F .3d 3 7 3, 377 (9th Cir. 1997) (quoting Morales v. Calderon , 85 F .3d 1387, 1392 (9th Cir. 1996)).

Smith doesn’t dispute that O r eg o n’s contemporaneous objection rule satisfies this test. Nevertheless, he claims the rule is still inadequate because of a chang e in Confrontation Clause jurisprudence following his conviction. A t the time o fS M I T H V

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Smith’s trial, Ohio v. R o berts held that out-of-cou rt statements could be introduced at trial if the declarant is unavailable and t he statements bear adequate indicia o f reliability

. 448 U.S. 56, 66 (1980). Crawford v. W a shington
, which was d ecided while Smith’s direct appeal was p ending
, o v e r r uled Roberts and held that the Confrontation Clause precludes the introduction of out-of-court stat e ments unless the declarant is unavailable and the d efendant had a prior opportunity

to cross-ex amine him. 541 U.S. 36, 59 (2004).

Smith arg ues that Crawford effected a chang e in law that he “could not have reasonably fo r e s een,” rendering appli c ation of Oreg on’s contemporaneous objection rule inadequate as applied to his case. B ut this g oes to c ause for the default, see infra Part I I .B
, not adequacy of the defaulted
state rule. See Reed v

. Ross
, 468 U .S. 1, 13 n .9 (1984) (collecting cases evaluating the failure to make novel le gal claims under the cause-and-prejudice framework). Adequacy focuses on the mine r

un o f cases, not o n particular d efects in individual applications. See Lee v. Kemna
, 534 U.S. 362, 376 (2002).

Nor i s this one of those “ex ceptional cases in which

ex o rbitant application o f a g enerally sound rule r enders the
state g round inadequate to stop c o n s i deration of a federal question.” Id

. F or ex a mple, th e p e titioner in Lee orally requested a continuance of his murder trial after subpoenaed alibi witnesses failed to appear, b ut the trial court denied the motion d ue to scheduling conflicts. Two a nd a half y ears later, when the case was on direct review, the state f o r the first time invoked a ru l e requiring that motions f or a continuance be submitted in writing along with an affidavit. Id

. at 372, 380. T he appellate court relied on this r u le in deny ing petitioner relief. Th e Supreme Court f ound thisS M I T H V

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inadequate, citin g “ ‘ the g eneral principle that an objection which is a mp l e and timely to bring the alleg ed federal error to the a ttention of th e trial court and enable it to take appropriate corrective action is sufficient to serve leg itimate
state interests, and therefore sufficie n t to preserve the claim f o r r e v iew here.’” Id

. at 378 (quoting Osborne v. Ohio
, 495 U.S. 103, 124

– 2 5 (1990) ( f inding a contemporaneous objection rule inadequate to b a r habeas review bec ause the defense “pressed the issue [ in an ear l i e r motion to dismiss]

. . . [ and] nothing would b e g ained by requiring O s b o r ne’s lawy er to objec t a second time, specifically to the jury instruction.”)). There is no u n f airness, irreg ularity o r injustice in a state a p pellate court’s insistence that a defendant fi rs t p r esent an objection to the trial judg e, w ho mig ht w ell h ave corrected the error, had it been broug ht to his attention.

The alleg e d unforeseeability of the Supreme Court’s decision in Crawford is insufficient to bring O r e go n ’s contemporaneous objection rule w ithin “the small categ ory o f

cases in which asserted state g rounds a re inadequate to block adjudication of a federal claim. ” I d

. at 381. Rather, this contention must b e considered under the cause-and-prejudice rubric.

B

The Supreme Court has held th a t a petitioner can show

cause for a procedural d efault “where a constitutional cl a im is so novel that i ts leg al basis is not reasonably available to counsel.” Reed
, 468 U.S. at 16. B ut “[ w] here the basis of a constitutional claim is available, and oth e r d e fense counsel ha v e p e rceived and litig a ted that claim, the demands o f comity and finality c ounsel a g ainst labeling alleg edS M I T H V

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unawareness of the objection as cause for a procedural default.” Engle v. Isaac , 456 U.S. 107, 134 (1982).

The Supreme Court g r anted c e rtiorari in Crawford three

w e eks prior to Smith’s trial, certify ing the question a s

w h e ther it should “reevaluate [ the] Confrontation Clause framework established in [ Roberts ] and hold that the Clause unequivo ca lly prohibits the admission of o ut-of-court
statement s i n s ofar as they are contained in ‘testimonial materials.’” G iven this timing
, we cannot “assume t h at [ counsel was] sufficiently unaware of the question’s latent

ex istence that w e cannot attribute to him strateg ic motives o f
any sort.” R e e d
, 468 U .S. a t 15. And when the Supreme Court has already announ c e d its intention to consider an i ssue, it is no long er the case that “[ r] a ising such a c l ai m i n state court

. . . would not p romote either the fairness or the efficiency o f

the state criminal justice sy stem.” Id

.
Moreover, Smith could have o bjected u n d e r R oberts

. W h ile Crawford is likely more f a v orable to Smit h
, a key indicium of r eliabi l i t y under Roberts was whether the ch a lleng e d evidence f

ell within a f

irmly rooted hearsay

ex c e ption. Roberts
, 4 48 U.S. at 66. Smith did challeng e the testimony on hearsay g rounds, raising a claim that tracks closely the Confrontation Clause claim he co u l d h a ve made under Roberts

. Counsel’s failure to make a C o n fr o ntation Clause objection was either an oversig ht or a tactical decision
not to pursue what counsel ju d ge d to be a weak c laim. W h atever the reason, the fact remains that counsel could have raised a Confrontation Clause claim, and so his failure to do

so provides no cause f

or Smith’s procedural defaul t

. A n y prejudice he suffered is thus immaterial. Engle
, 456 U.S. at 134 n.43.S M I T H V

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III

I would affirm the district court’s denial of petitione r’ s habeas p etition on the g roun d that his Confrontation Clause claim is p rocedurally de faulted and h e has failed to show cause and prejudice to ex cuse this default.