Travis Easter v. Steve Franke ( 2017 )


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  •                            NOT FOR PUBLICATION                           FILED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
    2
    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.
    3
    

Document Info

Docket Number: 16-35286

Filed Date: 7/19/2017

Precedential Status: Non-Precedential

Modified Date: 4/17/2021