Jeremy Hall v. John Myrick ( 2018 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
OCT 25 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JEREMY SHANE HALL, No. 17-35709
Petitioner-Appellant, D.C. No. 3:15-cv-00060-MO
v.
MEMORANDUM*
JOHN M. MYRICK, Superintendent, Two
Rivers Corr. Institution,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, Chief Judge, Presiding
Argued and Submitted October 9, 2018
Portland, Oregon
Before: FISHER and CALLAHAN, Circuit Judges, and BENCIVENGO,**
District Judge.
Jeremy Shane Hall appeals the district court’s denial of his 28 U.S.C. § 2254federal habeas petition based on ineffective assistance of counsel. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Cathy Ann Bencivengo, United States District Judge for the
Southern District of California, sitting by designation.
jurisdiction under 28 U.S.C. § 1291, we review de novo, see Lambert v. Blodgett,
393 F.3d 943, 964 (9th Cir. 2004), and we affirm.
1. Hall argues his trial counsel was ineffective for failing to object to a
sexual abuse diagnosis notwithstanding a lack of physical evidence to support that
diagnosis. The claim rests on State v. Southard, 218 P.3d 104 (Or. 2009), decided
by the Oregon Supreme Court two years after Hall’s trial. Before Southard,
decisions by the Oregon Court of Appeals allowed admission of the testimony at
issue. See, e.g., State v. Wilson, 855 P.2d 657 (Or. Ct. App. 1993); State v.
Sanchez-Cruz, 33 P.3d 1037 (Or. Ct. App. 2001). In light of the doubly deferential
standard of review, the state post-conviction review (PCR) court reasonably
concluded trial counsel was not ineffective. See 28 U.S.C. § 2254(d)(1);
Sophanthavong v. Palmateer, 378 F.3d 859, 870 (9th Cir. 2004) (“Strickland does
not mandate prescience, only objectively reasonable advice under prevailing
professional norms.”); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994) (holding
counsel “cannot be required to anticipate our decision in this later case, because his
conduct must be evaluated for purposes of the performance standard of Strickland
as of the time of counsel’s conduct” (internal quotation marks and citation
omitted)).
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2. Hall also argues trial counsel was ineffective for failing to object to
expert testimony highlighting the indicia of truth in the victim’s statements to
investigators. This claim rests on State v. Lupoli, 234 P.3d 117 (Or. 2010), decided
by the Oregon Supreme Court three years after Hall’s trial. Before Lupoli, a
decision by the Oregon Supreme Court allowed the admission of the testimony at
issue. See State v. Middleton, 657 P.2d 1215 (Or. 1983); see also State v. Remme,
23 P.3d 374 (Or. Ct. App. 2001). Again, the PCR court reasonably concluded
Strickland did not require prescience here. Moreover, even if trial counsel had a
legal basis to object, the PCR court reasonably concluded that trial counsel’s
failure to object was strategic because an objection may have complicated Hall’s
attempts to present similar testimony attacking the credibility of the victim. See
Cullen v. Pinholster, 563 U.S. 170, 196 (2011).
3. Trial counsel was not ineffective for failing to object to an alleged
Griffin error in the prosecution’s closing. The PCR court reasonably concluded
that trial counsel had valid, strategic reasons for not objecting because he did not
want to draw further attention to the damaging statement, and he wanted to avoid a
mistrial. See Demirdjian v. Gipson, 832 F.3d 1060, 1072-73 (9th Cir. 2016).
AFFIRMED.
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