Michael Smith v. Jean Hill

Filing

FILED OPINION (ALEX KOZINSKI, MARSHA S. BERZON and ANDREW D. HURWITZ) 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. Each party is to bear its own costs.. Judge: AK Dissenting, Judge: ADH Authoring. FILED AND ENTERED JUDGMENT. [8878383]

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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-01020MO

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

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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.

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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

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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

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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

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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).

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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
separately requires 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.

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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.
Citing Nitschke 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

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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.

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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.

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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

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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

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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 of this
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.

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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

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Court did not deny without 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).

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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

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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

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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

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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 category of
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

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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 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.

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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.