Corey Weidner v. Jeri Taylor

Opinion

FILED NOT FOR PUBLICATION JUN 28 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

COREY IAN WEIDNER, No. 17-35132

Petitioner-Appellant, D.C. No. 2:13-cv-01973-YY

v. MEMORANDUM* JERI TAYLOR,

Respondent-Appellee.

Appeal from the United States District Court for the District of Oregon Michael W. Mosman, Chief Judge, Presiding

Argued and Submitted May 7, 2018 Portland, Oregon

Before: RAWLINSON and NGUYEN, Circuit Judges, and SILVER,** District Judge.

Petitioner-Appellant Corey Weidner (Weidner) appeals the district court’s

denial of his petition for a writ of habeas corpus. “We review de novo a district

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Roslyn O. Silver, United States District Judge for the District of Arizona, sitting by designation. court’s denial of a habeas petition.” Demirdjian v. Gispson, 832 F.3d 1060, 1065

(9th Cir. 2016), cert. denied, 138 S.Ct. 71 (2017) (citation omitted).

Weidner’s claims of ineffective assistance of counsel are governed by the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and habeas

relief may be granted only if the last reasoned decision from the state court

“resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States” or “resulted in a decision that was 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); see also Weeden v. Johnson, 854

F.3d 1063, 1069 (9th Cir. 2017). “The standard set forth in § 2254(d) is difficult

to meet” and “reflects the view that habeas corpus is a guard against extreme

malfunctions in the state criminal justice systems, not a substitute for ordinary

error correction through appeal.” Yun Hseng Liao v. Junious, 817 F.3d 678, 689

(9th Cir. 2016) (citations omitted). Here, the last reasoned state court decision is

the December 23, 2011, judgment of Umatilla County.

Strickland v. Washington, 466 U.S. 668 (1984), provides the clearly

established law governing Weidner’s ineffective assistance of counsel claims. See

Demirdjian, 832 F.3d at 1066. To prevail, Weidner must demonstrate that the

2 performance of his counsel “fell below an objective standard of reasonableness,”

and that “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland, 466

U.S. at 688, 694. Under AEDPA, “our review [of claims of ineffective assistance

of counsel] is doubly deferential” and we must deny habeas relief “[i]f there is any

reasonable argument that counsel satisfied Strickland’s deferential standard.”

Demirdjian, 832 F.3d at 1066 (citations and internal quotation marks omitted).

Weidner contends that his trial counsel was ineffective when she failed to

object to the vouching testimony, the diagnosis of child abuse, and the prosecutor’s

remarks during closing arguments. The state court’s determination that there was

“insufficient evidence of any inadequacy or of any prejudice” was not “contrary

to” nor did it “involve[] an unreasonable application” of Strickland. Weeden, 854

F.3d at 1069 (citation omitted). Counsel’s decision to counter the vouching

testimony and diagnosis of child abuse with expert testimony was a reasonable trial

strategy entitled to deference. See Demirdjian, 832 F.3d at 1072-73. Because the

prosecutor’s remarks fell within permissible limits, defense counsel was not

ineffective for withholding objection. See id.

Weidner’s argument that his appellate counsel was ineffective for not raising

a claim under State v. Southard, 218 P.3d 104 (Or. 2009), in a second petition for

3 reconsideration also fails. The state court ruled that the time for raising a Southard

claim in a petition for reconsideration had expired, and that ruling is binding on

this court. See Butler v. Curry, 528 F.3d 624, 642 (9th Cir. 2008) (“We are bound

to accept a state court’s interpretation of state law, except in the highly unusual

case in which the interpretation is clearly untenable and amounts to a subterfuge to

avoid federal review of a constitutional violation.”) (citation and internal quotation

marks omitted). Accordingly, appellate counsel’s performance did not fall below

an objective standard of reasonableness when she did not file a second, untimely

petition for reconsideration. The state court’s decision denying relief on this claim

was neither “contrary to,” nor “an unreasonable” application of, clearly established

law. Delgado v. Lewis, 223 F.3d 976, 979 (9th Cir. 2000) (citation omitted).

AFFIRMED.