MICHAEL BENSON, SR. V. JERI TAYLOR, No. 15-35455 (9th Cir. 2016)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS OCT 28 2016 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MICHAEL DAVID BENSON, Sr., Petitioner-Appellant, No. 15-35455 D.C. No. 2:12-cv-01099-MA v. MEMORANDUM* JERI TAYLOR, Respondent-Appellee. Appeal from the United States District Court for the District of Oregon Malcolm F. Marsh, District Judge, Presiding Argued and Submitted October 6, 2016 Portland, Oregon Before: THOMAS, Chief Judge, and CLIFTON and NGUYEN, Circuit Judges. Michael Benson appeals the district court’s denial of his 28 U.S.C. § 2254 habeas petition challenging his felony murder conviction. We affirm the judgment of the district court for the reasons set forth in detail in the district court’s opinion dated June 8, 2015. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. We agree with the district court that (1) Benson’s claims are not procedurally defaulted given the objections at trial and the fact that the Oregon Court of Appeals did not expressly invoke a procedural bar, see Smith v. Or. Bd. of Parole & Post-Prison Supervision, 736 F.3d 857, 860 (9th Cir. 2013); (2) the state trial court’s admission of certain statements was contrary to, or an unreasonable application of the Supreme Court’s decisions in Bruton v. United States, 391 U.S. 123 (1968) and Gray v. Maryland, 523 U.S. 185 (1998); and (3) the constitutional error was harmless given Benson’s own testimony, the testimony of Frank Perotte, and other corroborating evidence, see Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). AFFIRMED. 2
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