
    Tyree Duane HARRIS, Petitioner-Appellee, v. Jeff PREMO, Superintendent, Oregon State Penitentiary, Respondent-Appellant.
    No. 13-35579.
    United States Court of Appeals, Ninth Circuit.
    Submitted July 7, 2014.
    
    Filed July 10, 2014.
    Robert A. Weppner, Portland, OR, for Petitioner-Appellee.
    Anna Joyce, Oregon Department of Justice, Paul L. Smith, Assistant Attorney General, AGOR-Office of the Oregon Attorney General, Salem, OR, for Respondent-Appellant.
    Before: PREGERSON, PAEZ, and WATFORD, Circuit Judges.
    
      
       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Tyree Harris’ claim that his sentence violated the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is not procedurally defaulted. The Oregon Court of Appeals rejected Harris’ claim without discussion or citation. “[T]hat absence of a citation coupled with the cursory statement denying the [appeal] satisfies the exhaustion requirement.” Smith v. Oregon Bd. of Parole & Post-Prison Supervision, Superintendent, 736 F.3d 857, 861 (9th Cir.2013). Even if the state court could have relied upon State v. Crain, 177 Or.App. 627, 33 P.3d 1050 (2001), overruled on other grounds by State v. Caldwell, 187 Or.App. 720, 69 P.3d 830 (2003), to reject the claim, the court did not “clearly and expressly base[ ] its decision on state-law grounds.” Nitschke v. Belleque, 680 F.3d 1105, 1112 (9th Cir.2012).

AFFIRMED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
     