Charles Glasscock v. Jeri Taylor

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 22, 2018
• Docket: 17-35390
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION OCT 22 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES FRANKLIN GLASSCOCK, No. 17-35390

Petitioner-Appellant, D.C. No. 2:14-cv-00016-SI

v. MEMORANDUM* JERI TAYLOR,

Respondent-Appellee.

Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding

Submitted October 11, 2018** Portland, Oregon

Before: FISHER, CLIFTON and CALLAHAN, Circuit Judges.

Charles Glasscock appeals the judgment of the district court dismissing his

28 U.S.C. § 2254 federal habeas petition. We have jurisdiction under 28 U.S.C. §

1291, we review de novo, see Hasan v. Galaza, 254 F.3d 1150, 1153 (9th Cir.

2001), and we affirm.

* 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). 1. The district court properly rejected Glasscock’s claim that trial

counsel rendered ineffective assistance of counsel by failing to present expert

testimony to rebut the state’s medical evidence. The state court reasonably applied

Strickland v. Washington, 466 U.S. 668 (1984), in concluding that trial counsel

performed adequately by failing to call a psychological expert to testify about the

reasons children may misreport child abuse. Because the jury had adequate

information to assess the victim’s credibility without this additional testimony,

counsel’s decision fell “within the wide range of reasonable professional

assistance.” Id. at 689.

In light of the doubly deferential standard of review, moreover, we cannot

say the state court unreasonably applied Strickland by concluding counsel

performed adequately by failing to call a psychological expert to opine regarding

the effects of confirmatory bias on medical examinations. See Knowles v.

Mirzayance, 556 U.S. 111, 123 (holding both AEDPA and Strickland’s deferential

standards apply when a federal court reviews a state court’s Strickland

determination under AEDPA).

The state court also reasonably concluded trial counsel permissibly elected

not to call a medical expert to rebut the state’s evidence that the victim had injuries

consistent with sexual abuse. Glasscock has not shown how such testimony would

2 have supported the defense or offered alternative explanations for the victim’s

injuries. See Gallegos v. Ryan, 820 F.3d 1013, 1035 (9th Cir. 2016) (sustaining the

state court’s determination that trial counsel was not ineffective where the

petitioner did not adduce any expert testimony in state post-conviction proceedings

to undermine the state’s medical expert).

2. The district court properly rejected Glasscock’s claim that trial

counsel rendered ineffective assistance of counsel by failing to seek curative action

in response to alleged prosecutorial misconduct during closing argument.

Even if the prosecutor’s remarks urging the jury to “protect” the victim were

improper, the failure to object to them was within the range of professional

conduct. See Cunningham v. Wong, 704 F.3d 1143, 1159 (9th Cir. 2013)

(“Because many lawyers refrain from objecting during opening statement and

closing argument, absent egregious misstatements, the failure to object during

closing argument and opening statement is within the ‘wide range’ of permissible

professional legal conduct.”).

The prosecution, moreover, did not improperly vouch for the victim’s

credibility. The prosecutor simply asked the jury to infer from the evidence that

the prosecution’s witnesses were credible. See United States v. Molina, 934 F.2d

1440, 1444 (9th Cir. 1991) (“[T]he prosecution must have reasonable latitude to

3 fashion closing arguments. Inherent in this latitude is the freedom to argue

reasonable inferences based on the evidence.”). Given the context, the

prosecutor’s remarks were comments on the evidence rather than assertions of

personal belief. See United States v. Garcia-Guizar, 160 F.3d 511, 521 (9th Cir.

1998).

As to the prosecution’s remarks about what children typically know and

disclose about sexual abuse, prosecutors may properly refer to matters not in the

record if they are “within the common knowledge of all reasonable people.”

United States v. Candelaria, 704 F.2d 1129, 1132 (9th Cir. 1983) (holding the

prosecutor’s remarks that the defendant would likely not have been joking about a

bomb threat “in this day [and] age,” were about matters within common knowledge

and thus not improper). Moreover, although trial counsel did not object to the

remarks during the prosecution’s presentation, he addressed them during his own

closing. See Demirdjian v. Gipson, 832 F.3d 1060, 1072 (9th Cir. 2016) (holding

the state court reasonably could have presumed that trial counsel “made a strategic

decision to address the prosecution’s comments directly [in his rebuttal] instead of

objecting”). Accordingly, we cannot conclude trial counsel performed deficiently

under Strickland. At minimum, we cannot say the state court unreasonably applied

Strickland in concluding counsel performed adequately.

4 3. Because there was no error, the district court properly rejected

Glasscock’s claim of cumulative error.

AFFIRMED.