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