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SMITH v. OREGON BD. OF PAROLE AND POST-PRISON

No. 11-35338.

736 F.3d 857 (2013)

Michael SMITH, Petitioner-Appellant, v. OREGON BOARD OF PAROLE AND POST-PRISON SUPERVISION, Superintendent, Respondent-Appellee.

United States Court of Appeals, Ninth Circuit.

Filed November 26, 2013.

Attorney(s) appearing for the Case

Anthony D. Bornstein (argued), Assistant Federal Public Defender, Portland, OR, for Petitioner-Appellant.

Ellen F. Rosenblum , Attorney General, Anna M. Joyce , Solicitor General, and Inge D. Wells (argued), Senior Assistant Attorney General, Salem, OR, for Respondent-Appellee.

Before: ALEX KOZINSKI, Chief Judge, and MARSHA S. BERZON and ANDREW D. HURWITZ, Circuit Judges.

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

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