Travis Easter v. Steve Franke

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 19, 2017
• Docket: 16-35286
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 19 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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.