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Mesta v. Myrick

United States District Court, D. Oregon

September 25, 2017

LUIS ARMANDO MESTA, Petitioner,
v.
JOHN MYRICK, Respondent.

          OPINION AND ORDER

          Ann Aiken United States District Judge

         Petitioner, an inmate at Two Rivers Correctional Institution, filed an amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner alleges that his appellate counsel provided ineffective assistance by failing to raise a meritorious argument during direct appeal proceedings. Respondent argues that petitioner is not entitled to relief because his claim was denied in a state court decision entitled to deference. For the reasons explained below, the petition is denied.

         BACKGROUND

         In March 2007, petitioner was tried before a jury on five counts of First Degree Sexual Abuse. Mesta v. Franke, 261 Or.App. 759, 761, 322 P.3d 1136 (2014). The State alleged that petitioner touched the breasts of five children while he worked as a receptionist at a children's health clinic. Id. The children testified at trial, and the State introduced the testimony of Dr. Oddo, a pediatrician who had examined the children. Petitioner's trial counsel objected to Dr. Oddo's testimony and argued that the jury would give his testimony undue weight in the absence of supporting physical evidence. Id. at 773-76, 322 P.3d 1136. The trial court overruled petitioner's objection. Dr. Oddo testified and rendered diagnoses of sex abuse with respect to three of the five children. Id. at 761-63, 322 P.3d 1136. Dr. Oddo admitted that he detected no physical signs of abuse and his diagnoses and testimony were based on interviews with the children and their caregivers. Id. at 762-63, 322 P.3d 1136.

         The jury convicted petitioner of four counts of Sexual Abuse in the First Degree and acquitted petitioner of the fifth count. Id. at 766, 322 P.3d 1136.

         The trial court sentenced petitioner to consecutive and concurrent sentences totaling 150 months' imprisonment. Resp't Ex. 101. Petitioner appealed his convictions and asserted that the trial court erred by admitting Dr. Oddo's testimony and the diagnoses of sexual abuse. Specifically, petitioner argued that Dr. Oddo's diagnoses of sex abuse impermissibly commented on and vouched for the credibility of the victims in the absence of supporting physical evidence. Resp't Ex. 104.

         Shortly after petitioner filed his opening brief in the Oregon Court of Appeals, the Oregon Supreme Court accepted review in State v. Southard, 347 Or. 127, 218 P.2d 104 (2009). Similar to petitioner's case, Southard involved child sex abuse allegations supported by the testimony of a physician who diagnosed sexual abuse in the absence of corroborating physical evidence. The defendant in Southard unsuccessfully appealed his conviction, and the Oregon Supreme Court accepted review of the case on three grounds:

(1) Whether a medical diagnosis of child sexual abuse based on the child's claim of abuse and his behavior, without confirming physical evidence, is scientifically valid ....
(2) Whether a medical diagnosis of child sexual abuse in the absence of corroborating physical evidence is unfairly prejudicial.
(3) Whether a diagnosis of child sexual abuse that is based on the evaluator's detailed explanation as to why the child's statement is truthful is an impermissible comment on the credibility of the alleged victim.

Mesta, 261 Or.App. at 777, 322 P.3d 1136. The second ground implicated Oregon Evidence Code (OEC) 403, which provides that relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." Or. R. Evid. 403. The third ground was the same argument raised by petitioner's appellate counsel. Petitioner's counsel did not seek to amend his opening brief to raise OEC 403 after the Oregon Supreme Court granted review in Southard.

         On March 25, 2009, the Oregon Court of Appeals affirmed petitioner's convictions without opinion, and petitioner sought review with the Oregon Supreme Court. Resp't Ex. 107; State v. Mesta, 227 Or.App. 289, 205 P.3d 890 (2009). The Oregon Supreme Court held the petition for review in abeyance pending its decision in Southard. Resp't Ex. 110 at 2.

         On October 1, 2009, the Oregon Supreme Court decided Southard and held that "where, as here, that diagnosis [of sex abuse] does not tell the jury anything that it could not have determined on its own, the diagnosis is not admissible under OEC 403." Southard, 347 Or. at 142, 218 P.3d 104. The Court explained that a diagnosis of sex abuse "based primarily on the assessment of the [child's] credibility" was "particularly problematic, " because the diagnosis "posed the risk that the jury will not make its own credibility determination, which it is fully capable of doing, but will instead defer to the expert's implicit conclusion that the victim's reports of abuse are credible." Id. at 141, 218 ...


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