Hall v. Myrick
Filing
80
OPINION AND ORDER. The Amended Petition for Writ of Habeas Corpus 16 is denied. The court grants a Certificate of Appealability only as to the issues addressed in Section III (B) & III (C) of this Opinion. IT IS SO ORDERED. Signed on 8/30/2017 by Judge Michael W. Mosman. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JEREMY SHANE HALL,
Case No. 3:15-cv-00060-MO
Petitioner,
OPINION AND ORDER
v.
JOHN MYRICK,
Respondent.
Nell Brown
Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
Frederick M. Boss, Deputy Attorney General
Kristen E. Boyd, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent
1 - OPINION AND ORDER
MOSMAN, District Judge.
Petitioner brings
U.S.C.
§
this
habeas
corpus
case pursuant
to
28
2254 challenging the legality of his 2007 state-court
convictions for Sexual Abuse and Unlawful Sexual Penetration. For
the reasons that follow,
the Amended Petition for Writ of Habeas
Corpus (#16) is denied.
BACKGROUND
On
September
2,
2005,
13-year-old
LK
was
babysitting
petitioner's children while he was out on a date. When petitioner
returned home,
he
inappropriate
touched LK several
times.
The
next day, LK told a friend what had happened but did not disclose
the
abuse
to
her
parents
until
October.
When
LK's
father
confronted petitioner with the allegations, petitioner initially
denied any inappropriate conduct, but later admitted that he had
a drinking problem, had taken off his pants and gotten into bed
with LK,
could not remember what he had done due to his heavy
drinking that night, and asked for forgiveness. Trial Transcript,
pp. 952-53.
LK's parents reported the abuse to the police on December 9,
2005, and LK appeared for an interview the following month at the
"Kids Center," a child advocacy organization.
Glesne and physician Michelle Kyriakos
Interviewer Paula
conducted the
interview
where LK recounted the incidents of abuse. Dr. Kyriakos postponed
the
physical
examination
until
May
2006
because
LK
was
not
feeling well on the day of her interview and indicated that she
did
not
wish
to
continue.
2 - OPINION AND ORDER
Id
at
1255-56.
When
Dr.
Kyriakos
conducted the
physical
examination
in May
2006,
she
found
no
abnormalities. Id at 1368.
On
January
18,
2006,
the
Deschutes
County
Grand
Jury
indicted petitioner on five counts of Sexual Abuse in the First
Degree and one count of Unlawful Sexual Penetration in the First
Degree.
Respondent's
testified that,
able
to
reach
Exhibit
following
a
the
diagnosis
to
102.
At
January
a
trial,
interview,
reasonable
Kyriakos
Dr.
she had been
degree
of medical
certainty that LK had been sexually abused. Id at 1329. She based
her diagnosis on the manner in which LK related the events during
the
course
of
the
interview.
Dr.
(1) verbal description of events,
a
reference
details;
Id
at
and
focused
on
LK's:
(2) ability to use her body as
to
indicate
(4)
the consistency of her core details over time.
1333-34.
She
what
Kyriakos
admitted
happened;
on
(3)
use
of
cross-examination
multiple
that
the
validity of her diagnosis was "dependent upon the truthfulness of
what
[LK)
said about whether she was sexually abused or not [.]"
Id at 1368. Glesne testified that she looked to many of the same
cues from LK to also conclude that LK was the victim of sexual
abuse. Id at 1226-33.
During
closing
argument,
the
prosecutor
focused
on
the
consistency of the victim's accounts, as well as the testimony of
Glesne and Kyriakos.
He also claimed that petitioner's behavior
indicated a man with a guilty conscience and made the following
statement about the circumstances of his arrest:
And
when
he
is
arrested,
how
he
is
indifferent? Never denies. Talked about the
3 - OPINION AND ORDER
jail tape. Talks to his mom. He talks to his
ex-wife. Never once as he testified yesterday
did he deny. He said it really wasn't my main
focus because he was trying to get people not
to talk. Wouldn't that have been the time
that he would have said I didn't do this.
This is a big misunderstanding.
Id at 1876.
By
a
count
of
11-1
on
petitioner on all counts,
each
charge,
the
jury
convicted
and the trial court sentenced him to
225 months in prison. Id at 1902-03, 1932.
Petitioner took a direct appeal challenging the imposition
of
his
consecutive
sentences
in
the
absence
of
specific
jury
findings. The State initially conceded this issue in light of the
Oregon Supreme Court's decision in State v. Ice, 343 Or. 248, 170
P.3d 1049
(2007),
when the U.S.
Ice,
555
Appeals
but later successfully sought reconsideration
Supreme Court reversed that decision in Oregon v.
U.S.
160
affirmed
(2009).
the
As
trial
a
result,
court's
the
Oregon
decision,
and
Court
the
of
Oregon
Supreme Court denied review. State v. Hall, 227 Or. App. 504, 206
P.3d
282,
rev.
346
denied,
Or.
364,
213
P.3d
578
(2008).
Petitioner's Appellate Judgment became effective on September 18,
2009.
Approximately
two
weeks
later,
on
October
1,
Oregon Supreme Court issued its decision in State v.
344 Or.
401,
164 P.3d 351
(2008),
2009,
the
Southard,
wherein it concluded that a
medical diagnosis of sexual abuse in the absence of corresponding
physical
evidence
of
sexual
abuse
"does
not
tell
the
jury
anything that it could not have determined on its own" such that
the diagnosis is inadmissible under OEC 403 because its risk of
4 - OPINION AND ORDER
prejudice outweighs the probative value of the diagnosis. 347 Or.
at 142. On June 4,
2010, the Oregon Supreme Court addressed how
the admission of such a diagnosis,
purposes
of
appeal,
can
even where not preserved for
nevertheless
result
in
a
finding
of
improper vouching stemming from statements that might otherwise
be admissible. State v. Lupoli, 348 Or. 346, 234 P.3d 117 (2010).
On August 12,
post-conviction
alleged,
2010,
relief
in part,
petitioner filed his petition seeking
("PCR")
in
Umatilla
County
where
he
that his trial attorney was constitutionally
ineffective for failing to object to the testimony of Glesne and
Kyriakos because the testimony contained improper vouching,
and
because
not
Dr.
Kyriakos's
diagnosis
of
sexual
abuse
was
supported by any physical evidence. Respondent's Exhibit 111. The
PCR
court
denied
relief
on
all
of
his
claims.
Respondent's
Exhibit 136. The Oregon Court of Appeals affirmed the PCR court's
decision without
opinion,
and the
Oregon Supreme Court
denied
review. Respondent's Exhibits 140, 141.
Petitioner filed this 28 U.S.C.
January 12,
2015.
abuse
statements
in
2254 habeas corpus case on
He argues that trial counsel was ineffective
for failing to object to:
sexual
§
the
offered
(1) Dr. Kyriakos' medical diagnosis of
absence
by
Glesne
of
physical
and
findings;
Kyriakos
(2)
the
addressing
the
characteristics or attributes that a truthful child displays; and
(3) the prosecutor's comments in closing on petitioner's exercise
of his right to silence.
He also argues that direct appellate
counsel was ineffective for failing to assign as plain error on
appeal a challenge to the court's admission of an expert medical
5 - OPINION AND ORDER
diagnosis
in
the
absence
of
corroborative
physical
evidence.
Respondent asks the court to deny relief on these claims because
the
claim
defaulted,
pertaining
to
appellate
counsel
is
procedurally
and the state-court decisions denying relief on the
claims regarding trial counsel's performance did not unreasonably
apply clearly established federal law.
DISCUSSION
I.
Unargued Claims
With the assistance of appointed counsel,
petitioner filed
an Amended Petition in which he raises three grounds for relief
containing 1 7 claims.
In his supporting memorandum,
petitioner
chooses to argue the four claims pertaining to the performance of
trial
and
appellate
counsel
correspond to Grounds 2(A),
as
2(B),
noted
above.
2(C) (9),
These
claims
and 3 in the Amended
Petition.
Petitioner
does
not
argue
the
merits
of
his
remaining
claims, nor does he address any of respondent's arguments as to
why relief on these claims should be denied. As such, petitioner
has
not
carried
unargued claims.
Cir. 2002)
II.
his
burden
See Silva v.
of
proof
with
respect
279 F.3d 825,
Woodford,
to
these
835
(9th
(petitioner bears the burden of proving his claims).
Exhaustion and Procedural Default
A petitioner seeking habeas relief must exhaust his claims
by fairly presenting them to the state's highest court,
through
a
direct
appeal
or
collateral
proceedings,
either
before
a
federal court will consider the merits of habeas corpus claims
pursuant to 28 U.S.C.
§
2254.
6 - OPINION AND ORDER
Rose v.
Lundy,
455 U.S.
509,
519
(1982). A petitioner must also present his claims in a procedural
context
in
which
its
merits
can
be
considered.
Peoples,
489 U.S. 346, 351 (1989). A petitioner is deemed to have
Castille
v.
"procedurally defaulted" his claim if he failed to comply with a
state procedural rule, or failed to raise the claim at the state
level at all.
Edwards v.
529 U.S.
Carpenter,
446,
451
(2000);
Coleman v. Thompson, 501 U.S. 722, 750 (1991).
As Ground 3, petitioner asserts that his appellate attorney
should
have
challenged
the
admission
of
Dr.
Kyriakos'
sexual
abuse diagnosis where there was no physical evidence to support
the diagnosis.
claim
in
He concedes that he failed to raise his Ground 3
Oregon's
state
courts,
but
argues
that
his
PCR
attorney's failure to raise the claim of ineffective assistance
of appellate counsel excuses his procedural default.
assistance
of
excuse
default
trial
the
post-conviction
counsel
However,
claim.
the
involving
excuse
Martinez
of
alleged
errors
the
his
substantial
holding
137 S.Ct.
Davis,
of a
counsel
2058
and
of
cause
to
ineffective assistance
of
Ryan,
Martinez
(2017).
default,
v.
may
establish
Inadequate
566 U.S.
does
not
appellate
1,
4
(2012).
apply
to
claims
counsel.
Davila
v.
Petitioner is therefore unable to
his
alternative
request
for
an
evidentiary hearing is denied.
III. The Merits
A.
Standard of Review
An
application
for
a
writ
of habeas
corpus
shall not
be
granted unless adjudication of the claim in state court resulted
in
a
decision
that
was:
7 - OPINION AND ORDER
( 1)
"contrary
to,
or
involved
an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States;'' or
(2)
''based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.'' 28 U.S.C.
§
2254(d). A state court's findings of fact are presumed correct,
and petitioner bears the burden of rebutting the presumption of
correctness
§
by
clear
and
convincing
evidence.
u.s.c.
28
2254 (e) (1).
A
state
court
decision
established precedent
if
is
the
"contrary
state
court
to
clearly
applies
a
rule
that
contradicts the governing law set forth in [the Supreme Court's]
cases" or "if the state court confronts a set of facts that are
materially
indistinguishable
from
a
decision
of
[the
Supreme]
Court and nevertheless arrives at a result different from [that]
precedent."
Under
the
Williams
v.
529
Taylor,
"unreasonable
U.S.
application"
362,
clause,
405-06
federal
a
(2000).
habeas
court may grant relief "if the state court identifies the correct
governing legal principle from
[the Supreme Court's]
but
principle
unreasonably
prisoner's
clause
case.''
requires
applies
that
at
413.
Id
the
incorrect or erroneous.
state
The
court
to
the
facts
''unreasonable
decision
to
decisions
of
the
application"
be
more
Id at 410. Twenty-eight U.S.C.
§
than
2254(d)
"preserves authority to issue the writ in cases where there is no
possibility
fairminded
jurists
could
disagree
that
the
state
court's decision conflicts with [the Supreme] Court's precedents.
It
goes
no
farther."
Harrington
(2011).
8 - OPINION AND ORDER
v.
Richter,
562
U.S.
86,
102
Grounds 2(A) & 2(B): Failure to Object to Expert
Testimony
B.
Petitioner argues
that
his
trial
attorney was
ineffective
for failing to object to the testimony of Glesne and Kyriakos on
two bases:
sexual
( 1)
Dr.
abuse
Kyriakos predicated her medical diagnosis of
only
upon
disclosure,
not
Glesne
Kyriakos
and
testified that
attributes
any
the
physical
credibility
evidence
engaged
in
of
improper
of
the
victim's
and
(2)
both
when
they
abuse;
vouching
the victim displayed certain characteristics or
that
a
truthful
child displays.
Al though petitioner
argues these claims together, the court takes them in turn.
1.
Sexual Abuse Diagnosis Absent Physical Evidence
Because no Supreme Court precedent is directly on point that
corresponds to the facts of this case, the court uses the general
two-part
whether
test
established
petitioner
Knowles
v.
by
received
Mirzayance,
556
the
Supreme
ineffective
U.S.
111,
Court
to
assistance
122-23
determine
of
counsel.
(2009).
First,
petitioner must show that his counsel's performance fell below an
objective standard of reasonableness.
466
U.S.
668,
686-87
(1984).
evaluating counsel's performance,
presumption
that
the
conduct
Due
Strickland v.
to
the
difficulties
courts must
falls
within
Washington,
indulge a
the
"wide
in
strong
range
of
reasonable professional assistance." Id at 689.
Second, petitioner must show that his counsel's performance
prejudiced
whether
the
the
defense.
The
appropriate
petitioner
can
show
probability that,
but
for
9 - OPINION AND ORDER
"that
counsel's
test
for
there
is
unprofessional
prejudice
a
is
reasonable
errors,
the
result of the proceeding would have been different." Id at 694. A
reasonable probability is one which is sufficient to undermine
confidence
in
the
outcome
Strickland's general
of
the
standard is
trial.
Id
at
696.
When
combined with the standard of
review governing 28 U.S.C. § 2254 habeas corpus cases, the result
is a "doubly deferential judicial review." Mirzayance,
556 U.S.
at 122.
Petitioner's trial attorney testified during petitioner's
PCR
proceedings
Kyriakos'
and
explained
why
he
did
not
object
to
Dr.
sexual abuse diagnosis where it was unsupported by any
physical evidence.
"[M]y understanding is that I tried the case
according to the law as
it existed in January of '07.
If
I'm
wrong about that, please let me know. But I believe in January of
2007 you were allowed to do that." Respondent's Exhibit 135, p.
68.
He "thought the law was bad" but "did not anticipate there
was going to be anytime soon a change in that law." Id at 69. The
PCR court resolved the issue as follows:
The case was tried in 2007.
State vs.
Southard was decided in 2009. At the time of
trial, case law allowed experts from Kids
Care to testify to a diagnosis of child
sexual abuse. Any objection to that testimony
would have been overruled so it was not an
error by the attorney not to make a useless
objection. It would also have been allowed to
examine and cross examine the witnesses as to
the basis for the diagnosis.
Respondent's Exhibit 136, p. 2.
Petitioner asserts that Southard was simply an application
of decades of prior Oregon Supreme Court precedent,
but this is
not the case. At the time of petitioner's trial, the Oregon Court
10 - OPINION AND ORDER
of
Appeals
had
clearly
prevailed in Southard.
rejected
See,
the
argument
e.g., State v.
460, 855 P. 2d 657, rev. denied,
that
Wilson,
ultimately
121 Or. App.
318 Or. 61, 865 P. 2d 1267 (1993)
(medical diagnosis of sexual abuse without physical evidence was
an
opinion
"direct
that
might
comment
on
sway
the
jurors,
child's
but
did
not
credibility.")
amount
to
(italics
a
in
original). As the Oregon Court of Appeals explained in the wake
of
Southard,
diagnosis
of
child
regarding
sexual
absence
abuse
testimony
was
as
to
exemplified
a
in
a medical expert's diagnosis of sexual abuse in
of
supporting
permissible testimony in Oregon.
Although
Appeals'
expert
(2009), rev. denied, 348 Or. 13 (2010). That is to say,
until Southard,
the
rule
" Umberger v. Czerniak, 232 Or. App. 563, 564, 222
[Wilson].
P.3d 751
"the
petitioner
physical
evidence
constituted
Id.
asserts
that
the
Oregon
decisions pre-Southard were wrongly decided,
Court
of
it is not
the province of a federal habeas court to interfere with a statecourt interpretation of state law.
U.S. 62, 67-68
See Estelle v.
McGuire,
502
(1991). For this reason, the court is also not in
a position to disagree with the PCR court's conclusion that an
objection
would
have
context of this case.
been
"overruled"
and
"useless"
in
the
Given this state-court interpretation of
state law, the PCR trial court's decision is neither contrary to,
nor an unreasonable application of,
law.
Ill
Ill
11 - OPINION AND ORDER
clearly established federal
2.
Impermissible Vouching
Petitioner
next
asserts
that
trial
counsel
should
have
objected to various statements from Glesne and Kyriakos because
they
focused
on
whether
LK's
report
of
abuse
displayed
the
characteristics of a reliable, credible disclosure. As recounted
in
the
Background
of
this
Opinion,
these
two
experts
both
testified regarding the manner in which LK described the abuse
she
suffered,
leading them to
conclude that
she
had been
the
victim of sexual abuse.
Counsel did not believe that
the
statements warranted an
objection. Respondent's Exhibit 135, pp. 122-23.
Dr.
Kyriakos'
detailed
time,
testimony that
account
and was
counsel said,
able
consistent
in
to provide a
her
core
"I don't like it at all,
the laws that existed then,
coming close to saying,
truth.
LK was
With respect to
highly
details
over
but I think under
it was probably admissible. She was
'I -
I think this child is telling the
'" Id at 126-27. Counsel stated that he understood
that under Oregon law at the time of petitioner's trial, "clearly
a witness could not vouch and say,
telling the truth or they' re
however,
this
'I believe another witness is
lying.'"
Id at
127.
He was
not,
of the opinion that the testimony at issue amounted to
kind of direct statement on credibility,
but was
instead
"sort of borderline" such that "an objection made in front of the
jury,
it
would
draw
attention
to
this
testimony
and
quite
possibly make things worse." Id at 128.
The PCR court found petitioner's strategy to be a reasonable
one:
12 - OPINION AND ORDER
Both sides questioned witnesses and argued
how an abused child would behave.
Pet's
attorney argued that if really abused, Child
would have gone to her grandmother's instead
of spending the night, would have reported it
immediately, wouldn't have babysat again for
pet., would not have called him for a ride or
accepted a ride. These were all necessary
defense points. The attorney could not have
objected to that line of questioning from the
DA and then expected to get it in for the
Pet.
No inadequacy on the part of the
attorney. Reasonable strategy.
Respondent's Exhibit 136, p. 2.
It
is
not
clear
that
trial
counsel
needed
to
allow
the
expert statements at issue in order to make the defense points
the PCR court identifies,
expert sources.
all of which were available from non-
Nevertheless, given the state of the law at the
time of petitioner's trial,
counsel reasonably believed that an
objection was not warranted.
In State v. Middleton, 294 Or.
Supreme
Court
stated,
"We
427,
expressly
438
hold
(1983), the Oregon
that
in
Oregon
a
witness, expert or otherwise, may not give an opinion on whether
he
believes
a
witness
is
telling
the
truth."
However,
this
holding did not constitute a total ban against expert testimony
regarding the indicia of reliability of a victim's statements. In
Middleton,
the Oregon Supreme Court provided that "if a witness
is accepted as an expert by the trial court, it is not error to
allow
victim
victim
testimony
of
describing
familial
sexual
the
reaction
abuse
and
. reacted in the typical manner.
13 - OPINION AND ORDER
of
the
whether
typical
a
" Id.
child
testifying
In the wake of Middleton, Oregon courts continued to allow
indirect comments on the credibility of a victim in child sexual
abuse cases.
See,
e.g.,
State v.
775 P.2d 876
Hilaire,
(1989)
(police officer testifying to typical behavior of child sex abuse
victim);
State
(changing
v.
874
Butterfield,
explanations
for
P.2d
injures
1339,
a
1345-46
"classis
diagnostic
indicator"); State v. Arnold, 893 P.2d 1050, 1053 (1995)
was "spontaneous" and "eager to disclose");
P.3d 374, 383 (2001)
information
drawn").
2009
from
Thus,
(1994)
State v.
(victim
Remme,
23
(expert could provide "useful, nonconclusive
which
inferences
as
to
the Oregon Supreme Court's
credibility
may
be
Southard decision in
constituted a significant shift in the law when it forbade
the admission of medical diagnoses of sexual abuse based only on
whether the expert believed the victim was telling the truth.
One year after
Southard,
the Oregon Supreme Court went a
step further when it again addressed the admissibility of expert
statements touching on credibility in the
context of a
sexual
abuse conviction. In Lupoli, the Oregon Supreme Court stated that
it would ordinarily be proper for experts to testify as to:
whether
a
victim's
for her age;
demeanor;
and
(2)
( 3)
found
the victim's demeanor and any changes in that
details;
suggestibility
regarding
her
that
developmentally appropriate
whether the disclosure contained any spontaneous
descriptive
child's
statements were
(1)
and
or
allegations.
this
kind
of
(4) circumstances
the
348
possibility
Or.
testimony
at
362.
could
indicating
she
was
However,
assist
a
the
coached
while
it
jury,
it
concluded that such testimony would not be proper where it was
14 - OPINION AND ORDER
intertwined with an expert medical diagnosis of sexual abuse in
the absence of corroborating physical evidence.
In other words,
in a post-Southard world, indirect comments on the credibility of
the accuser that would ordinarily be proper would no longer be
admissible
in cases
that
also
involved a medical diagnosis of
sexual abuse in the absence of supporting physical evidence.
Petitioner's claim of ineffective assistance of counsel must
be viewed through a pre-Southard lens because "Strickland does
not mandate prescience, only objectively reasonable advice under
prevailing professional norms."
F.3d 859,
870
(9th Cir.
Sophanthavong v.
Palma teer,
37 8
2004). Glesne and Kyriakos testified as
to LK's verbal description of events, how she used her body as a
reference,
consistency
the fact
of
the
that
she gave a detailed account,
core
details
over
time.
Where
and the
the
Oregon
Supreme Court had not decided Southard, even in the context of a
sexual abuse diagnosis without any supporting physical evidence,
these were
the
kinds
of permissible,
properly pertained to credibility.
indirect
statements
that
As the Oregon Supreme Court
recognized in Middleton, "Much expert testimony will tend to show
that another witness is telling the truth. This, by itself, will
not
render
evidence
inadmissible."
294
Or.
at
435
(internal
citation omitted).
Trial
counsel testified that he believed these
statements
were admissible at the time of petitioner's trial, and his belief
is supported by Oregon law. 1 Consequently, without the benefit of
1
As petitioner points out, counsel did object in one instance when Glesne
testified that the victim's "verbal response adds to the reliability of the
child's statement. 0
Trial Transcript, p. 1230. Counsel successfully objected
15 - OPINION AND ORDER
the Southard and Lupoli decisions,
counsel was under no duty to
object.
court's
Accordingly,
the
PCR
decision
did
not
unreasonably apply clearly established federal law when it denied
relief on this claim.
C.
Ground 2(C) (9): Prosecutors Comments During Closing
As his final claim, petitioner alleges that the prosecutor's
comments
on his
silence
identified
in
the
Background of
this
Opinion were improper insofar as they highlighted for the jury
that petitioner did not assert his innocence at the time of his
arrest.
Petitioner
faults
trial
counsel
for
not
objecting
or
moving for a mistrial.
Trial counsel testified as to this issue during petitioner's
PCR hearing. He indicated that,
as a general matter, whether he
would object during a prosecutor's opening or closing arguments
"depends
on how egregious
things
are.
I
objected during final
arguments in cases that were lost. And I sometimes try to analyze
what happened. I thought that it hurt." Respondent's Exhibit 135,
p.
83.
With
respect
to
the
specifics
of
petitioner's
case,
counsel reviewed the relevant passage and explained as follows:
Huh. That is close. My judgment is that it
would have done more harm, to be effective at
that point, than it would have helped us,
especially - yeah, in that case.
If we had
let's say I were to object,
and
asked
for
a
curative
sustained
I
just
think it would be
instruction,
harmful.
"to this witness talking about the reliability of a person's statement." Id.
This objection to a direct opinion pertaining to reliability is consistent
with counsel's view of Oregon law at the time of petitioner's trial.
16 - OPINION AND ORDER
It was -- this was sort of just -- the jury
knew what had happened. They knew that, you
know, there'd been these phone calls and
said,
"Round up
[petitioner's daughter],
don't let her talk to the police." Obviously,
they knew he had made statements.
So in my judgment, it would have underscored
this. It would have made it look like it was
something that we thought was powerfully
damaging and had to control and therefore
should
in
fact
be
more
powerful
and
meaningful to the jury (inaudible).
Id at 85-86.
The PCR court agreed:
The
DA comment was that after his
arrest, pet didn't deny the charges. This is
much more likely to have been seen as a
comment on his right to remain silent and
would most
likely have
been
sustained.
Attorney testified that he did not wish to
call attention to it by making an objection
in
front
of
the
jury.
That
is
more
problematic, but if he had made the objection
and it had been sustained, then what? A
curative would have emphasized it to the
jury.
Attorney could have moved for
a
mistrial and it would have been arguable, but
there is nothing to indicate that attorney
wanted a mistrial in this case. It appears
that he thought it was going well and there
is no evidence to the contrary. His decision
not to object then becomes a reasonable one.
Respondent's Exhibit 136, p. 3.
Petitioner claims
comment on a
U.S.
610
that where
criminal defendant's
(1976),
improper
comments
downside
to
his
a
on
successful
his
defense.
it
is
silence,
objection
silence
However,
obviously improper to
would
Doyle
to
not
counsel's
the
v.
Ohio,
426
prosecutor's
have
posed
decision
not
any
to
object was based, in part, on his perception of the prosecutor's
17 - OPINION AND ORDER
comment
as "one o f
these th ings where it' s very mild
.
it
obvious ly wasn ' t a direct comment on its way to (inaudible) such
as what this guy got a lawyer or what
innocent person wou l d
do
135 ,
such
a
thing . u
Respondent ' s
Exhibit
p.
83.
Counsel
therefore believed that even a s uccessful objection might have
been amounted to a Pyrrh i c victory where it served to high l ight
the issue of petitioner's silence for t he j ury . This court views
counsel 's strategy as an appropriate one. Strickland, 466 U.S. at
689. At a minimum, petitioner has not shown that the PCR court's
decision was so clea rl y erroneous that no f airminded jurist could
agree with it.
Richter,
562 U. S.
at 102 .
Accordingly ,
the PCR
court ' s decis i on to deny relief on this c la im is neither contrary
to,
nor
an
unreas o nable
appl i cation
of,
clearl y
established
fede ral law.
CONCLUSION
For the reasons i dentif i ed above,
Writ
of
Habea s
Corpus
(#16)
is
the Amended Petition for
d enied.
The
court
grants
a
Certificate o f Appealability only as to the issues addressed in
Secti on II I (B) & II I (C) of this Opinion .
IT IS SO ORDERED .
DATED this
_]Q day
of August , 2017 .
Judge
18 - OPINION AND ORDER
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