Travis Easter v. Steve Franke , 694 F. App'x 540 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRAVIS MICHAEL EASTER, No. 16-35286
Petitioner-Appellant, D.C. No. 2:11-cv-00906-JE
v.
MEMORANDUM*
STEVE FRANKE,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, Chief Judge, Presiding
Submitted July 14, 2017**
Portland, Oregon
Before: WATFORD and OWENS, Circuit Judges, and NAVARRO,*** Chief
District Judge.
Travis Easter, an Oregon state prisoner, appeals from the dismissal with
prejudice of his 28 U.S.C. § 2254 habeas petition alleging ineffective assistance of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Gloria M. Navarro, Chief United States District Judge
for the District of Nevada, sitting by designation.
counsel. As the parties are familiar with the facts, we do not recount them here.
We affirm.
Easter’s claim that trial counsel provided ineffective assistance of counsel by
failing to object to the father’s vouching testimony is procedurally defaulted, and
thus Easter must show cause and prejudice. Martinez v. Ryan, 566 U.S. 1, 10
(2012). To do so, counsel must be deficient and there must be a reasonable
probability that the outcome would be different absent the deficient counsel.
Strickland v. Washington, 466 U.S. 668, 687, 694 (1984).
Trial counsel’s decision not to object to the father’s vouching testimony was
a valid strategic decision, and thus trial counsel was not deficient. See Clabourne
v. Lewis, 64 F.3d 1373, 1383 (9th Cir. 1995) (stating that “reasonably competent
counsel might have many valid reasons for failing to object”). Because trial
counsel had a valid trial strategy and did not merely offer a post-hoc rationalization
of his decision-making process, his assistance fell within the “wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 689. Furthermore,
Easter does not show prejudice as there is not a reasonable probability that the
result of the proceeding would have been different had trial counsel objected. See
Cunningham v. Wong, 704 F.3d 1143, 1159 (9th Cir. 2013).
Easter also asserts ineffective assistance of counsel when trial counsel failed
to object to a portion of the mother’s alleged vouching testimony. Easter argues
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that this is a new claim that the Oregon Court of Appeals did not consider below.
However, the Oregon Court of Appeals already considered the entirety of the
mother’s testimony and rejected Easter’s claim, and thus this claim is subject to the
“highly deferential standards” of the Antiterrorism and Effective Death Penalty
Act. Runningeagle v. Ryan, 825 F.3d 970, 978 (9th Cir. 2016) (citation omitted).
The Oregon Court of Appeals’ rejection of this claim was neither contrary to, nor
based upon an unreasonable application of, clearly established federal law, nor an
unreasonable determination of the facts in light of the evidence presented in state
court. See 28 U.S.C. § 2254(d). Accordingly, this claim fails.
Easter’s claim of ineffective assistance of appellate counsel fails under the
Supreme Court’s recent decision in Davila v. Davis, 137 S. Ct. 2058, 2062-63
(2017). Davila holds that federal habeas courts cannot hear procedurally defaulted
claims of ineffective assistance of appellate counsel. Id. Thus, regardless of
whether this claim is entitled to equitable tolling, this claim is procedurally
defaulted and it fails under Davila.
AFFIRMED.
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