Hernandez-Hernandez v. Hill

81 F. App'x 950

Opinion

MEMORANDUM

*

The prosecution’s final question to its expert witness did not inquire about the typicality of recantations as permitted by state law. See State v. Middleton, 294 Or. 427, 438, 657 P.2d 1215 (1983). Instead, by alleging that the recantation surfaced because the appellant was “at large,” the prosecution impermissibly vouched for the victim’s subsequent disavowal of her recantation. See id. Defense counsel’s failure to object to this question fell below an objective standard of reasonableness. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

However, the evidence supporting the guilty verdict was such that confidence in the outcome is not undermined. See Griffey v. Lindsey, 345 F.3d 1058, 1070 (9th Cir.2003). Both the appellant and the victim were infected with the same sexually transmitted disease, the victim’s recantation did not address the fact that she had been penetrated prior to her tenth birthday, and testimony indicated that the victim’s mother was aware of the abuse. Because the appellant is unable to show a reasonable probability of prevailing had an objection been made, he is not entitled to habeas relief. See Strickland, 466 U.S. at 694.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.