United States District Court, D. Oregon
OPINION AND ORDER
Aiken United States District Judge
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.
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.
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.
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.
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
(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
(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.
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.
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 ...