LEONARD v. OREGON (2018)

MEMORANDUM **

Glenn Leonard, an Oregon state inmate, appeals the district court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. We affirm.

1. Leonard failed to exhaust his ineffective assistance of appellate counsel claim in the state PCR proceedings. 28 U.S.C. § 2254(b)(1)(A). Thus, for a federal court to address this claim in a § 2254 proceeding, Leonard must establish both “cause” for that failure to exhaust and “prejudice” from the alleged constitutional violation. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Leonard asserts that the cause of his failure to exhaust was PCR counsel’s ineffectiveness. In Davila v. Davis, however, the Supreme Court held that PCR counsel’s ineffectiveness provides cause for failure to exhaust only a narrow type of claim: ineffective assistance of counsel at trial. ––– U.S. ––––, 137 S.Ct. 2058, 2062–63, 198 L.Ed.2d 603 (2017).

2. Leonard also argues that his trial counsel was ineffective for failing to object to a witness’s testimony. The claim rests on State v. Southard, 347 Or. 127, 218 P.3d 104 (2009), decided by the Oregon Supreme Court after Leonard’s trial. Before Southard, Oregon law was unsettled on whether the testimony at issue was admissible under Oregon’s expert witness evidence rule. Compare State v. Middleton, 294 Or. 427, 657 P.2d 1215, 1221 (1983), with State v. Sanchez-Cruz, 177 Or.App. 332, 33 P.3d 1037, 1038–39, 1045 (2001). The state PCR court’s ruling that trial counsel was not ineffective was therefore not unreasonable. 28 U.S.C. § 2254(d)(1); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994) (holding that 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).

AFFIRMED.