FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL SMITH,

Petitioner-Appellant,

v.

OREGON BOARD OF PAROLE AND

POST-PRISON SUPERVISION,

Superintendent,

Respondent-Appellee.

No. 11-35338

D.C. No.

3:09-cv-01020-

MO

OPINION

Appeal from the United States District Court

for the District of Oregon

Michael W. Mosman, District Judge, Presiding

Argued and Submitted

May 10, 2013—Portland, Oregon

Filed November 26, 2013

Before: Alex Kozinski, Chief Judge, and Marsha S. Berzon

and Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Hurwitz;

Dissent by Chief Judge Kozinski
2 SMITH V. OREGON BOARD OF PAROLE

SUMMARY*

Habeas Corpus

The panel vacated the district court’s dismissal of a

28 U.S.C. § 2254 habeas corpus petition, holding that

petitioner’s claim was not procedurally defaulted.

Petitioner challenged certain trial testimony on hearsay

grounds, but did not raise a Confrontation Clause objection

until his direct appeal. The state appellate court summarily

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 construe the state appellate

court’s ambiguous response as acting on the merits of

petitioner’s Confrontation Clause claim.

Chief Judge Kozinski dissented. He would affirm the

district court’s denial of habeas relief on the ground that

petitioner’s Confrontation Clause claim is procedurally

defaulted and petitioner has failed to show cause and

prejudice to excuse the default.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
SMITH V. OREGON BOARD OF PAROLE 3

COUNSEL

Anthony D. Bornstein (argued), Assistant Federal Public

Defender, Portland, Oregon, for Petitioner-Appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce,

Solicitor General, and Inge D. Wells (argued), Senior

Assistant Attorney General, Salem, Oregon, for RespondentAppellee.

OPINION

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 (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.

I.

A.

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
4 SMITH V. OREGON BOARD OF PAROLE

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.

B.

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 (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
SMITH V. OREGON BOARD OF PAROLE 5

convictions.” State v. Smith, 129 P.3d 208, 208 (Or. Ct. App.

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, 135 P.3d 319 (Or. 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, 140 P.3d

1196, 1196 (Or. Ct. App. 2006) (per curiam). The Oregon

Supreme Court again denied review. State v. Smith, 155 P.3d

52 (Or. 2007).

C.

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 (1980). The district

court also found Crawford not sufficiently novel to excuse
6 SMITH V. OREGON BOARD OF PAROLE

the absence of a contemporaneous Confrontation Clause

challenge.

II.

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 court’s conclusion that the state court

decision could not plausibly be read as acting on the merits. 

Leavitt v. Arave, 383 F.3d 809, 815 (9th Cir. 2004).

A.

In Oregon, an argument concerning the introduction of

evidence is generally barred on appeal if not preserved by a

contemporaneous objection at trial. Or. R. App. P. 5.45(1). 

Under Oregon’s plain error doctrine, however, an appellate

court may address a defaulted argument if the trial court

committed error apparent on the face of the record. State v.

Ramirez, 173 P.3d 817, 821 (Or. 2007). Even if the appellate

court finds plain error, it must decide whether to exercise its

discretion to consider that error. Id. If 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).
SMITH V. OREGON BOARD OF PAROLE 7

In Chambers, we held that “unless a court expressly (not

implicitly) states that it is relying upon a procedural bar, we

must construe an ambiguous state court response as acting on

the merits of a claim, if such a construction is plausible.”

549 F.3d at 1197. There is no warrant to depart from the

Chambers rule here.1 Although an Oregon court may be

required under state law to detail its reasons for exercising its

discretion to treat an objection not raised at trial, the Oregon

Court of Appeals might have declined to exercise that

discretion in Smith’s case either because of the lack of a

contemporaneous objection or because it concluded that the

trial court had not committed plain error.

Indeed, the cursory rejection of Smith’s appeal makes it

quite plausible that the Oregon Court of Appeals reached the

merits of his Sixth Amendment claim. The court treated

Smith’s unpreserved Confrontation Clause claim in precisely

the same manner as his plainly preserved state hearsay claim. 

Smith’s brief to that court raised only the Confrontation

Clause and hearsay issues with respect to his convictions, and

the Court of Appeals rejected both identically–“without

discussion.” Smith, 129 P.3d at 208. Because the Court of

Appeals thus rejected the state hearsay claims on the merits,

its failure to treat the federal constitutional argument

separatelyrequires that under Chambers, we presume that the

1 The dissent contends that we “over-read[]” Chambers. Dissent at 12. 

To the contrary, it is our colleague who incorrectly reads Chambers as

departing from Ninth Circuit precedent. In Chambers, we construed an

ambiguous Nevada Supreme Court order denying a habeas petition as a

decision on the merits. 549 F.3d at 1198–99. In so doing, the panel

expressly cited and applied the settled rule first announced in Harris v.

Superior Court, 500 F.2d 1124, 1128 (9th Cir. 1974) (en banc), that “we

must construe an ambiguous state court response as acting on the merits

of a claim.” Chambers, 549 F.3d at 1197. We again apply that rule today.
8 SMITH V. OREGON BOARD OF PAROLE

federal claim was also rejected on the merits. See Johnson v.

Williams, ___ U.S. ___, 133 S. Ct. 1088, 1096 (2013) (“When

a state court rejects a federal claim without expressly

addressing that claim, a federal habeas court must presume

that the federal claim was adjudicated on the merits—but that

presumption can in some limited circumstances be

rebutted.”).

The dissent’s suggestion that we today depart from the

teaching of Coleman v. Thompson, 501 U.S. 722, 736 (1991),

is misplaced. Coleman held that the Harris presumption did

not apply when the Virginia Supreme Court dismissed an

appeal in direct response to a state motion contending that it

had been untimely filed. Id. at 740. That dismissal expressly

indicated that the state court had not treated any federal

constitutional issues. Id. (“The Virginia Supreme Court

stated plainly that it was granting the Commonwealth’s

motion to dismiss the petition for appeal. That motion was

based solely on Coleman’s failure to meet the Supreme

Court’s time requirements.”). Here, in contrast, the Oregon

Court of Appeals affirmed the denial of post-conviction relief

without intimating that its disposition rested on state

procedural grounds.

B.

CitingNitschke v. Belleque, 680 F.3d 1105, 1111 (9th Cir.

2012), Oregon argues that in conducting a plain error

analysis, a state court would simply have determined whether

federal law was clear at the time of Smith’s trial, and would

not have independently evaluated the merits of Smith’s

Crawford claim. But, in Nitschke the Oregon court expressly

cited a previous Oregon opinion holding that an unpreserved

federal constitutional claim did not qualify for plain error
SMITH V. OREGON BOARD OF PAROLE 9

review. State v. Nitschke, 33 P.3d 1027, 1027 (Or. Ct. App.

2001) (per curiam) (citing State v. Crain, 33 P.3d 1050 (Or.

Ct. App. 2001)). We relied on that citation in determining

that the state court acted on procedural grounds. Nitschke,

680 F.3d at 1112.

In contrast, the Oregon Court of Appeals here rejected

Smith’s claim without any discussion or citation. It is

precisely this lack of clarity that invokes the settled

Chambers rule: “where the [state court] includes no citation

and simply states that the petition is denied, that absence of

a citation coupled with the cursory statement denying the

petition satisfies the exhaustion requirement.” 549 F.3d at

1197–98.

C.

Finally, Oregon argues that the Chambers rule should not

apply because its appellate courts reach the merits of

unpreserved claims only in rare instances. That statement, of

course, could be made about virtually all state appellate

courts; elsewise, the universal contemporaneous objection

rule would be of little consequence. Accepting the state’s

argument would effectively render Harris to the dustbin, as

every other state surely could also claim that treatment of

unpreserved constitutional issues on direct appeal is the

infrequent exception, rather than the rule. We are not free to

disregard the clear guidance of the Supreme Court, let alone

vitiate its opinion in Harris, and reject this gambit.
10 SMITH V. OREGON BOARD OF PAROLE

III.

For the reasons above, we VACATE the district court’s

dismissal of the Petitioner’s habeas petition and REMAND

for further proceedings consistent with this opinion.2

Each party is to bear its own costs.

Chief Judge KOZINSKI, dissenting:

The Oregon Court of Appeals affirmed Smith’s

conviction in a one-sentence order. The majority deploys a

presumption that such a summary disposition constitutes a

decision on the merits of Smith’s federal claim unless the

state court “clearly and expressly states that its judgment rests

on a state procedural bar.” Maj. op. at 3 (quoting Harris v.

Reed, 489 U.S. 255, 263 (1989)). But this presumption

applies only when the state court’s ruling fairly appears to

rest primarily on the resolution of federal claims, or to be

interwoven with such claims, neither of which is the case

here. We are therefore bound to conclude that the state court

decided the case on state-law grounds, precluding federal

relief.

2 Because we hold that Smith’s federal habeas claim was not

procedurally defaulted, unlike our dissenting colleague, we do not address

whether there is cause and prejudice to excuse a default. See Dissent at

17–20.
SMITH V. OREGON BOARD OF PAROLE 11

I

Before seeking relief from a state conviction in federal

court, a prisoner must exhaust all available state remedies. 

28 U.S.C. § 2254(b)(1). If the state court denies relief on an

adequate and independent state ground, such as

noncompliance with a state procedural rule, the federal claim

is procedurally defaulted and a federal court cannot grant

relief unless petitioner shows cause for the default and

prejudice resulting from the alleged constitutional violation. 

Wainwright v. Sykes, 433 U.S. 72, 90–91 (1977).

To determine whether a conviction rests on an adequate

and independent state ground, we look to the last reasoned

decision of the state courts. Ylst v. Nunnemaker, 501 U.S.

797, 803 (1991). Here there is no reasoned decision: The

trial court made no decision because petitioner didn’t object

on Confrontation Clause grounds, and the court of appeals

issued only summary affirmances. The question is, what

must we infer about the basis for the state court’s decision

when it mentions no law at all, state or federal?

A

Under Oregon’s contemporaneous objection rule, Smith

was required to raise his Confrontation Clause claim at trial

in order to preserve it for appeal. Or. R. App. P. 5.45(1). His

failure to do so provides an adequate and independent state

ground on which the Oregon Court of Appeals could have

affirmed his conviction. But Oregon appellate courts have

discretion to consider a defaulted claim if (1) the trial court

committed an error of law, (2) that is obvious, and (3) on the

record, if (4) doing so is justified. Ailes v. Portland

Meadows, Inc., 823 P.2d 956, 959 (Or. 1991). To add a
12 SMITH V. OREGON BOARD OF PAROLE

further layer of complexity, a court’s decision to engage in

plain-error review doesn’t necessarily mean that its

affirmance rests on resolution of the federal claim. This is

because the second prong of the plain-error analysis—the

determination that an error of law is obvious—is itself a

question of state law, reliance on which precludes federal

review. See Nitschke v. Belleque, 680 F.3d 1105, 1112 (9th

Cir. 2012).

Although an Oregon court must articulate its reasoning

when it overturns a trial court decision on plain-error review,

it’s not required to do so if it considers the four prongs and

finds one of them unsatisfied. Ailes, 823 P.2d at 959. In such

circumstances, we can’t tell whether the state court rejected

the claim for failure to comply with an adequate and

independent state rule (a state-law ruling), based on an

assessment of the merits (a federal-law ruling) or because it

found one or more of the four plain-error prongs unsatisfied

(either a state or federal-law ruling). This is the situation

Smith finds himself in.

B

The majority cites Harris and Chambers v. McDaniel,

549 F.3d 1191 (9th Cir. 2008), for the proposition that a state

court’s decision is presumed to rest on federal grounds unless

that court expressly states that it’s relying on a state

procedural bar. But this over-reads Harris and Chambers,

and contradicts the letter and logic of our precedent.

Harris presented an ineffective assistance of counsel

claim in a state petition for postconviction relief. The state

court observed that the claim was not properly before it

because Harris had failed to raise it on direct appeal, but
SMITH V. OREGON BOARD OF PAROLE 13

proceeded to evaluate the merits of the claim and rejected it. 

Harris, 489 U.S. at 258. The Supreme Court held that “if it

fairly appears that the state court rested its decision

primarily on federal law, this Court may reach the federal

question on review unless the state court’s opinion contains

a plain statement that [its] decision rests upon adequate and

independent state grounds.” Id. at 261 (quotation marks

omitted) (emphasis added). In cases like Harris, where the

state court discusses both federal and state law, “[r]equiring

a state court to be explicit in its reliance on a procedural

default does not interfere unduly with state judicial

decisionmaking.” Id. at 264.

Harris didn’t focus much on whether the state court’s

opinion appeared to rest primarily on federal law. Because

the state court discussed the merits of Harris’s federal claim

extensively, even though it acknowledged that the claim was

procedurally defaulted, nobody doubted its reliance on

federal-law grounds. What, after all, would be the point of

discussing federal law if the default was dispositive?

But the Supreme Court underscored the importance ofthis

antecedent question two years later in Coleman v. Thompson,

501 U.S. 722 (1991). Coleman sought state postconviction

relief on numerous federal grounds. After briefing on the

merits, the Virginia Supreme Court issued a summary

disposition granting the state’s motion to dismiss. Id. at

727–28. On habeas review, the Supreme Court rejected

petitioner’s argument that it should apply the Harris

presumption in all cases where federal claims are presented

to the state court. Id. at 736. Instead, the Court held that the

presumption applies only where the state court’s disposition

“fairly appeared to rest primarily on resolution of those

[federal] claims, or to be interwoven with those claims.” Id.
14 SMITH V. OREGON BOARD OF PAROLE

at 735. The state court in Coleman, unlike that in Harris,

didn’t discuss either federal or 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 will not impose on state courts the

responsibility for using particular language in every case in

which a state prisoner presents a federal claim.” Id. at 739.

The only rule we can reasonably derive from these two

cases is that when a state court discusses both federal and

state grounds in an opinion, either of which would

independently dispose of the case, a federal court should

presume that the court relied on the federal ground. In such

situations, the state court has already analyzed the merits of

the federal claim, and it would be no great imposition to

require it to tell us if it considered some other ground

dispositive. But when the state court discusses the merits of

neither federal nor state-law claims, as in Coleman, applying

such a presumption as a matter of course trenches on the state

judicial process.

As the Supreme Court observed in an analogous context,

“requiring a statement of reasons could undercut state

practices designed to preserve the integrity of the case-law

tradition. The issuance of summary dispositions in many

collateral attack cases can enable a state judiciary to

concentrate its resources on the cases where opinions are

most needed.” Harrington v. Richter, 131 S. Ct. 770, 784

(2011).

Our own cases, including Chambers, reflect this

approach. Although the state court in Chambers issued a

cursory one-sentence opinion affirming petitioner’s

conviction, we were careful to note that “the Nevada Supreme
SMITH V. OREGON BOARD OF PAROLE 15

Court did not denywithout comment or opinion.” Chambers,

549 F.3d at 1196. Instead, the state court’s opinion stated that

it “considered” all materials filed by the parties and

“concluded” that intervention wasn’t appropriate. Id. 

Because the filed materials disclosed that petitioner had

presented federal claims to the state court, we concluded that

the state court “did more than issue a postcard denial,” and

instead specifically evaluated and issued a judgment on the

federal claims. Id. at 1198. This didn’t announce a rule that

all summary adjudications are presumed to rest on federal

grounds unless the state court expressly 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 and

context of a state court’s cursory adjudication to determine

whether it fairly appears to rest on the resolution of federal

claims.

C

There is nothing in Smith’s case supporting an inference

that the state court resolved the federal claim. The Oregon

Court of Appeals had two opportunities to consider Smith’s

Confrontation Clause claim. The first time, it remanded for

resentencing after briefly affirming his conviction: “We

reject without discussion defendant’s arguments regarding his

convictions.” State v. Smith, 129 P.3d 208, 208 (Or. Ct. App.

2006) (per curiam). The state moved for reconsideration of

the sentencing ruling, which the court granted in one terse

sentence: “Motion for relief from default granted;

reconsideration allowed; former disposition withdrawn;

affirmed.” State v. Smith, 140 P.3d 1196, 1196 (Or. Ct. App.

2006) (per curiam).
16 SMITH V. OREGON BOARD OF PAROLE

Neither of these dispositions remotely suggests that it

rested on, or was interwoven with, Confrontation Clause

grounds. The state court made no mention of state or federal

claims and, unlike the state court in Chambers, the court here

used no language permitting a plausible inference that it

relied on federal rather than state grounds.

The majority infers that the state court resolved the merits

of Smith’s Confrontation Clause claim because it rejected his

hearsay claim in the same disposition, and that claim must

have been rejected on the merits, having clearly been

preserved. But Smith’s hearsay claims presented no issue of

federal law. That the state court rejected Smith’s hearsay

claim based on state law tells us nothing about whether it

relied on federal law in rejecting his Confrontation Clause

claim. There’s no reason to doubt that the state court

resolved both claims on state-law grounds.

Drawing such a strained inference is particularly dubious

when there’s no reason to believe that the Oregon courts

normally decide such matters on federal grounds. Ordinary

state practice might not be relevant where the Harris

presumption applies, but there’s no presumption when the

state court’s disposition doesn’t fairly appear to rest on a

federal ground. When, as here, the state court gives no

indication of what grounds it’s relying on, the fact that it

seldom engages in plain-error review counsels against

inferring that it did so.

The Supreme Court of Oregon has held that “[i]t is only

in rare and exceptional cases that this court will notice an

alleged error [on plain-error review] where no ruling has been

sought from the trial judge.” State v. Gornick, 130 P.3d 780,

783 (Or. 2006). And, even when a court does engage in
SMITH V. OREGON BOARD OF PAROLE 17

plain-error analysis, that doesn’t necessarily mean that it

reached the federal grounds because the obviousness prong of

the inquiry is a matter of state law. Nitschke, 680 F.3d at

1111–12.

II

Procedural default doesn’t always bar habeas relief. The

state procedural rule must be adequate and independent; and,

even where it is, habeas review may still be available if

petitioner can show cause and prejudice. Bennett v. Mueller,

322 F.3d 573, 580 (9th Cir. 2003). None of this helps Smith.

A

Smith concedes that Oregon’s contemporaneous objection

rule is independent of federal law, but claims that it provides

an inadequate basis on which to deny relief. As a general

matter, a state procedural rule is adequate “if it was ‘firmly

established and regularly followed’ at the time it was applied

by the state court.” Poland v. Stewart, 169 F.3d 573, 577

(9th Cir. 1998) (quoting Ford v. Georgia, 498 U.S. 411, 424

(1991)). Although Oregon courts can engage in discretionary

plain-error review, “judicial discretion may be applied

consistently when it entails ‘the exercise of judgment

according to standards that, at least over time, can become

known and understood within reasonable operating limits.’”

Wood v. Hall, 130 F.3d 373, 377 (9th Cir. 1997) (quoting

Morales v. Calderon, 85 F.3d 1387, 1392 (9th Cir. 1996)).

Smith doesn’t dispute that Oregon’s contemporaneous

objection rule satisfies this test. Nevertheless, he claims the

rule is still inadequate because of a change in Confrontation

Clause jurisprudence following his conviction. At the time of
18 SMITH V. OREGON BOARD OF PAROLE

Smith’s trial, Ohio v. Roberts held that out-of-court

statements could be introduced at trial if the declarant is

unavailable and the statements bear adequate indicia of

reliability. 448 U.S. 56, 66 (1980). Crawford v. Washington,

which was decided while Smith’s direct appeal was pending,

overruled Roberts and held that the Confrontation Clause

precludes the introduction of out-of-court statements unless

the declarant is unavailable and the defendant had a prior

opportunity to cross-examine him. 541 U.S. 36, 59 (2004).

Smith argues that Crawford effected a change in law that

he “could not have reasonably foreseen,” rendering

application of Oregon’s contemporaneous objection rule

inadequate as applied to his case. But this goes to cause for

the default, see infra Part II.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 legal

claims under the cause-and-prejudice framework). Adequacy

focuses on the mine run of cases, not on particular defects in

individual applications. See Lee v. Kemna, 534 U.S. 362, 376

(2002).

Nor is this one of those “exceptional cases in which

exorbitant application of a generally sound rule renders the

state ground inadequate to stop consideration of a federal

question.” Id. For example, the petitioner in Lee orally

requested a continuance of his murder trial after subpoenaed

alibi witnesses failed to appear, but the trial court denied the

motion due to scheduling conflicts. Two and a half years

later, when the case was on direct review, the state for the

first time invoked a rule requiring that motions for a

continuance be submitted in writing along with an affidavit. 

Id. at 372, 380. The appellate court relied on this rule in

denying petitioner relief. The Supreme Court found this
SMITH V. OREGON BOARD OF PAROLE 19

inadequate, citing “‘the general principle that an objection

which is ample and timely to bring the alleged federal error

to the attention of the trial court and enable it to take

appropriate corrective action is sufficient to serve legitimate

state interests, and therefore sufficient to preserve the claim

for review here.’” Id. at 378 (quoting Osborne v. Ohio,

495 U.S. 103, 124–25 (1990) (finding a contemporaneous

objection rule inadequate to bar habeas review because the

defense “pressed the issue [in an earlier motion to dismiss]

. . . [and] nothing would be gained by requiring Osborne’s

lawyer to object a second time, specifically to the jury

instruction.”)). There is no unfairness, irregularity or

injustice in a state appellate court’s insistence that a

defendant first present an objection to the trial judge, who

might well have corrected the error, had it been brought to his

attention.

The alleged unforeseeability of the Supreme Court’s

decision in Crawford is insufficient to bring Oregon’s

contemporaneous objection rule within “the small categoryof

cases in which asserted state grounds are inadequate to block

adjudication of a federal claim.” Id. at 381. Rather, this

contention must be considered under the cause-and-prejudice

rubric.

B

The Supreme Court has held that a petitioner can show

cause for a procedural default “where a constitutional claim

is so novel that its legal basis is not reasonably available to

counsel.” Reed, 468 U.S. at 16. But “[w]here the basis of a

constitutional claim is available, and other defense counsel

have perceived and litigated that claim, the demands of

comity and finality counsel against labeling alleged
20 SMITH V. OREGON BOARD OF PAROLE

unawareness of the objection as cause for a procedural

default.” Engle v. Isaac, 456 U.S. 107, 134 (1982).

The Supreme Court granted certiorari in Crawford three

weeks prior to Smith’s trial, certifying the question as

whether it should “reevaluate [the] Confrontation Clause

framework established in [Roberts] and hold that the Clause

unequivocally prohibits the admission of out-of-court

statements insofar as they are contained in ‘testimonial

materials.’” Given this timing, we cannot “assume that

[counsel was] sufficiently unaware of the question’s latent

existence that we cannot attribute to him strategic motives of

any sort.” Reed, 468 U.S. at 15. And when the Supreme

Court has already announced its intention to consider an

issue, it is no longer the case that “[r]aising such a claim in

state court . . . would not promote either the fairness or the

efficiency of the state criminal justice system.” Id.

Moreover, Smith could have objected under Roberts. 

While Crawford is likely more favorable to Smith, a key

indicium of reliability under Roberts was whether the

challenged evidence fell within a firmly rooted hearsay

exception. Roberts, 448 U.S. at 66. Smith did challenge the

testimony on hearsay grounds, raising a claim that tracks

closely the Confrontation Clause claim he could have made

under Roberts. Counsel’s failure to make a Confrontation

Clause objection was either an oversight or a tactical decision

not to pursue what counsel judged to be a weak claim. 

Whatever the reason, the fact remains that counsel could have

raised a Confrontation Clause claim, and so his failure to do

so provides no cause for Smith’s procedural default. Any

prejudice he suffered is thus immaterial. Engle, 456 U.S. at

134 n.43.
SMITH V. OREGON BOARD OF PAROLE 21

III

I would affirm the district court’s denial of petitioner’s

habeas petition on the ground that his Confrontation Clause

claim is procedurally defaulted and he has failed to show

cause and prejudice to excuse this default.