Jonathon William-Durand Neuhard v. United States of America

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0242p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JONATHON WILLIAM-DURAND NEUHARD,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
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No. 22-2120
Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
Nos. 2:15-cr-20425-1; 2:20-cv-13119—Gershwin A. Drain, District Judge.
Decided and Filed: October 25, 2024
Before: SUTTON, Chief Judge; LARSEN and MURPHY, Circuit Judges.
_________________
COUNSEL
ON BRIEF: J. Vincent Aprile II, LYNCH, COX, GILMAN & GOODMAN, P.S.C., Louisville,
Kentucky, John R. Minock, CRAMER, MINROCK & SWEENEY, Ann Arbor, Michigan, for
Appellant. Jessica Currie, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for
Appellee.
_________________
OPINION
_________________
LARSEN, Circuit Judge. A jury convicted Jonathon Neuhard of producing, receiving,
and possessing child pornography. A panel of this court affirmed his convictions. Neuhard then
sought to vacate his sentence under 28 U.S.C. § 2255, arguing ineffective assistance of trial and
appellate counsel. The district court denied the motion but granted Neuhard a certificate of
appealability. For the reasons outlined below, we AFFIRM.
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I.
For years, Neuhard sexually assaulted his two minor nieces while babysitting them at
their grandmother’s house. The older girl, MV1, who was nine years old when the abuse began,
described multiple occasions when Neuhard had shown her pornographic videos, molested her,
and photographed her naked in her grandmother’s basement.
After MV1’s mother reported the abuse, law enforcement obtained a warrant, searched
Neuhard’s trailer, and seized a laptop and memory card which contained two downloaded videos
of child pornography and four deleted images. Metadata revealed that the images had been taken
at the grandmother’s house using a cell phone of the same make and model as Neuhard’s. MV1
identified herself as the naked minor in the deleted images and testified that Neuhard was the
photographer.
Neuhard was indicted on counts of producing, receiving, and possessing child
pornography in violation of 18 U.S.C. §§ 2251(a), 2252A2, and 2552A(5)(B). The district court
appointed Richard Korn as Neuhard’s trial counsel after prior counsel withdrew. When meeting
with his client, Korn noticed that Neuhard exhibited awkward behaviors when answering
questions. Korn also noticed that Neuhard had reacted in a flat, emotionless manner in his
recorded police interrogation. So, Korn sought more information. He discussed the issue with
prior counsel, Neuhard’s parents, and Neuhard himself. Korn also considered the opinions of
two expert examiners. One had already concluded that Neuhard had autism, whereas the other
found that Neuhard presented an inconclusive case. Korn further reviewed all of Neuhard’s
school records, including medical records, and read books and articles on autism and sexual
crimes. Korn concluded it was a “close call” but decided that introducing evidence of Neuhard’s
autism at trial would be more harmful than helpful. R. 200, PageID 1969–70. Korn worried
that, regardless of what an expert might caution, the jury would view Neuhard as a mentally ill
sexual deviant who lacked control over his impulses. So, he decided that he would introduce
autism evidence only if “absolutely necessary.” R. 200, PageID 1959–60; R. 184-2, PageID
1766.

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Korn laid out the defense’s theory in his opening statement to the jury: three other
individuals who lived at or frequented the grandmother’s house had committed the crimes
alleged. During the government’s case, Agent Lisa Keith testified that she had interviewed
Neuhard as well as these three other men. When asked by the prosecution about the other three’s
demeanor, Keith said that “[t]hey were cooperative, helpful, offered to take lie detector
tests . . . .” R. 126, PageID 981. Korn immediately asked for a sidebar and objected to the
reference to polygraph tests because it breached a pretrial agreement the parties had negotiated
not to introduce such evidence.
During the sidebar, the government admitted error and supported a curative instruction.
Korn noted the likely inadvertent nature of the comment and suggested remedying the error by
introducing evidence that Neuhard had also offered to take a polygraph. (Neuhard had originally
offered to take a polygraph while unrepresented, but Korn had later withdrawn that offer.) The
court opted for the government’s remedy, struck the remark from the record, and admonished the
jury twice not to consider Keith’s testimony “about other people offering to go take a
polygraph.” R. 126, PageID 982–85.
After the government rested, Korn moved for a mistrial, arguing that the instruction was
insufficient to remedy the damage done. Keith’s comment, Korn argued, completely
undermined his theory of the case. If the court disagreed about a mistrial, Korn asked the court
to at least permit him to introduce Neuhard’s offer to take a polygraph to balance the bias caused
by the comment. The court denied both requests but offered to reiterate its jury instruction.
Korn declined the offer to avoid further highlighting the polygraph comment for the jury. The
jury convicted Neuhard on all three charges.
Neuhard obtained new counsel, who raised six issues on appeal. See United States v.
Neuhard, 770 F. App’x 251, 252–59 (6th Cir. 2019). This court affirmed, rejecting several
arguments relevant to this appeal. Specifically, we held that the district court had not abused its
discretion in rejecting Neuhard’s polygraph offer and instead giving a limiting instruction, and
that the alleged cumulative errors did not “warrant a retrial.” Id. at 255–56.

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Neuhard then pursued habeas relief under § 2255. He argued that Korn had performed
deficiently by failing to adequately investigate and present evidence of his autism at trial and
failing to immediately request an evidentiary hearing to determine whether Keith had
intentionally mentioned a polygraph. Neuhard also argued that his appellate counsel had
performed deficiently by failing to appeal the denial of his mistrial motion. After holding an
evidentiary hearing, the district court denied habeas relief but granted Neuhard’s motion for a
certificate of appealability on these three issues.
II.
We review a district court’s decision denying habeas relief under § 2255 de novo and its
factual findings for clear error. Greer v. United States, 938 F.3d 766, 770 (6th Cir. 2019). To
prevail on an ineffective assistance claim, “the defendant must show that counsel’s
representation fell below an objective standard of reasonableness” and “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceedings would have
been different.” Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984). This “is a most
deferential standard even under de novo review.” Kendrick v. Parris, 989 F.3d 459, 468 (6th Cir.
2021) (cleaned up) (quoting Harrington v. Richter, 562 U.S. 86, 105 (2011)). To prove that
counsel’s “[r]epresentation [was] constitutionally ineffective,” a defendant must show that “it so
undermined the proper functioning of the adversarial process that [he] was denied a fair trial.”
Id. at 470 (citation and quotation omitted). Courts also “must make ‘every effort’ to ‘eliminate
the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at the time.’” Id. at 468
(quoting Strickland, 466 U.S. at 689).
A.
Neuhard first contends that Korn performed deficiently by failing to sufficiently
investigate and present expert evidence concerning Neuhard’s autism. We disagree.
An attorney making a strategic decision must adequately “investigate his [or her] options
and make a reasonable choice between them.” Towns v. Smith, 395 F.3d 251, 258 (6th Cir.
2005). A strategy is reasonable if it falls “within the range of logical choices an ordinarily

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competent attorney . . . would assess as reasonable to achieve a specific goal.” Miller v. Francis,
269 F.3d 609, 616 (6th Cir. 2001) (quotation omitted). Strickland demands “a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” 466 U.S. at 689. And “the range of reasonable applications is substantial” and
“wide.” Kendrick, 989 F.3d at 468 (quoting Harrington, 562 U.S. at 105).
The record shows that Korn adequately investigated Neuhard’s autism and developed a
reasonable strategy not to introduce autism evidence at trial. Neither party argues that producing
evidence of autism would have been a defense to liability. Instead, any value from presenting
such evidence would have been to explain Neuhard’s atypical demeanor. Korn immediately
noticed Neuhard’s “unusually slow,” “rigid,” and “awkward” responses to his questions and,
after reviewing Neuhard’s interrogation recordings several times, became aware of his flat affect.
R. 184-2, PageID 1765–66; R. 200, PageID 1957–58, 1966. Korn’s concern was that a jury
might infer guilt from Neuhard’s emotionless response to police questioning.
Korn took reasonable steps to investigate this issue. He consulted with prior counsel and
had several discussions with Neuhard’s parents. He reached out to prior counsel’s expert witness
who had diagnosed Neuhard with autism. He also contacted a second psychologist who had
previously evaluated Neuhard but found it inconclusive whether Neuhard had autism. Counsel
also obtained all Neuhard’s school records including his psychological assessments, though they
contained “no mention of autism.” R. 184-2, PageID 1766, R. 200, PageID 1958. Still, Korn
“accepted the fact that [Neuhard] was autistic,” and he researched the relationship between
“autism and criminal sexual conduct cases” by reviewing relevant books and articles. R. 200,
PageID 1964; R. 184-2, PageID 1766.
Based on this evidence, Korn, after several consultations with Neuhard, decided that
presenting autism evidence entailed “the risk that the jury would perceive him as a mentally ill
‘monster’ who could not control his impulses to sexually abuse children.” R. 184-2, PageID
1766–67. Korn took into account that “an expert would testify that such a conclusion is not
valid,” but thought that such caution would “not matter” to a jury. Id. at 1767. The risk, counsel
concluded, “outweighed” any benefit to be gained. Id. at 1766. This strategic decision, based on
sufficient investigation, fell well within the range of reasonable representation.

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Nothing at trial suggested Korn should have changed course. In Korn’s experience,
Neuhard’s awkwardness displayed itself only during conversation, and Korn knew that Neuhard
had elected not to testify. During the proceedings, Neuhard sat at counsel table and “comported
himself well, took notes during the testimony, and consulted with trial counsel in an
appropriately subdued manner.” R. 184-2, PageID 1767. The only negative evidence of
Neuhard’s comportment consisted of his unemotional demeanor during the six-minute
interrogation recordings and the interviewing agent’s testimony that he perceived Neuhard as
“robotic,” “reserved,” “unemotional,” and “short.” R. 125, PageID 840–42. After hearing this
testimony, Korn again considered whether he should put on an expert to explain the potential
cause of Neuhard’s demeanor but determined that calling an expert would only highlight
Neuhard’s atypical mannerisms for the jury. Drawing attention to the issue, Korn reasoned,
would likely do more harm than good. And Korn deployed other tactics to combat the agent’s
testimony. He carefully cross-examined the agent, attacking his credibility, highlighting
Neuhard’s cooperativeness, and reiterating all of this in his closing statement. Korn’s decision
not to introduce autism evidence was thus well within the range of reasonable representation.
Neuhard’s arguments to the contrary are unavailing. He argues that Korn should have
done more research. For example, he says Korn should have consulted more sources, such as the
National Autism Association, to learn how to present autism evidence. But counsel did research
this issue and made the professional judgment that it would not be in his client’s best interest to
present autism evidence. “The test for ineffectiveness is not whether counsel could have done
more;” it is merely whether counsel did enough. Waters v. Thomas, 46 F.3d 1506, 1518 (11th
Cir. 1995).
Neuhard suggests that it should have been obvious to Korn that he needed to perform
more research and introduce autism evidence because a new expert report, commissioned in
conjunction with habeas proceedings, concluded that Neuhard was more seriously affected by
autism than the prior experts had opined. Indeed, the post-trial expert said that Neuhard
functioned in many ways like a ten-year-old child without autism. Neuhard does not clearly
explain why having a more-severe diagnosis would have mattered. But, in any event, “simply
introducing the contrary opinion of another mental health expert during habeas review is not

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sufficient to demonstrate the ineffectiveness of trial counsel.” McGuire v. Warden, Chillicothe
Corr. Inst., 738 F.3d 741, 758 (6th Cir. 2013); see also Black v. Bell, 664 F.3d 81, 105 (6th Cir.
2011). The question is whether record evidence supports the conclusion that Korn “should have
been aware at the time of [Neuhard’s] trial” that additional investigation would produce more
favorable evidence than the previous experts had provided. Black, 664 F.3d at 105 (emphasis
omitted). No such evidence exists here. Korn interacted with Neuhard personally, consulted
with his parents, obtained his school records, which did not mention autism, and consulted two
experts. One expert diagnosed him with autism but the other could not confidently conclude,
based on “borderline” test results, that Neuhard met the requirements for an autism diagnosis. R.
200, PageID 1964. Counsel still accepted that Neuhard was autistic but had no reason to suspect
that yet another expert would provide a more severe diagnosis.1 See Mammone v. Jenkins, 49
F.4th 1026, 1052 (6th Cir. 2022). Korn’s investigation was reasonable.
Neuhard next says that counsel should have prepared materials regarding Neuhard’s
autism in case the need to present them arose at trial. But counsel is not ineffective for failing to
prepare for eventualities that do not materialize. This argument, in other words, is just another
way of asking whether counsel reasonably assessed the need to introduce expert testimony
before and during trial. As explained above, the answer is “yes.”
In sum, Neuhard’s claim fails on Strickland’s first prong because Korn acted reasonably
when investigating Neuhard’s autism and deciding not to introduce autism evidence at trial.
B.
Neuhard next contends that Korn provided ineffective assistance by not requesting “an
immediate evidentiary hearing” to determine whether Agent Keith acted deliberately when she
testified concerning polygraphs. We again disagree.
Here, Neuhard fails on the prejudice prong, so we need not consider deficient
performance. Smith v. Mitchell, 348 F.3d 177, 199–200 (6th Cir. 2003). Under Strickland’s
prejudice prong, Neuhard must show that “[t]he likelihood of a different result” absent Korn’s
1Indeed, it bears mentioning that an additional expert, retained before sentencing, described Neuhard’s
autism as “mild.” R. 200, PageID 1882.

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error was “substantial, not just conceivable.” Harrington, 562 U.S. at 112. He doesn’t. Instead,
as the district court correctly explained, he speculates that, had Korn sought an evidentiary
hearing, he would have uncovered malfeasance by the prosecution and the court would have
granted a mistrial on that basis. See United States v. Neuhard, 2022 WL 10613160, at *5–6
(E.D. Mich. Oct. 18, 2022). The evidence suggests otherwise.
The parties disagree about the legal standard governing a district court’s decision to grant
a mistrial. The government says that, when the issue is improper reference to a polygraph, a
mistrial is proper when an inference about the polygraph result was essential to assessing the
credibility of a critical witness. See United States v. Walton, 908 F.2d 1289, 1293 (6th Cir.
1990). Neuhard says that Zuern v. Tate, 336 F.3d 478, 485 (6th Cir. 2003), applies instead.
Zuern held that when determining whether an improper reference to inadmissible evidence
merits a mistrial, courts should consider “(1) whether the remark was unsolicited, (2) whether the
government’s line of questioning was reasonable, (3) whether the limiting instruction was
immediate, clear, and forceful, (4) whether any bad faith was evidenced by the government, and
(5) whether the remark was only a small part of the evidence against the defendant.” Id. We
need not resolve this dispute because Neuhard cannot show a reasonable probability that the
district court would have granted a mistrial here, even under Neuhard’s preferred test.
To begin, the prosecution did not solicit Agent Keith’s polygraph testimony. Neuhard’s
brief admits as much. After an instruction from the trial court not to discuss hearsay, the
prosecution asked Keith about the three other suspects’ “attitude, the demeanor, how they
presented to you as a federal agent asking them questions?” R. 126, PageID 980–81. In
response, Keith testified that the three were “cooperative, helpful, offered to take lie detector
tests.” Id. at 981. Korn immediately asked for a sidebar. He objected to the polygraph
testimony; the government admitted error; and Korn asked for permission to introduce evidence
that Neuhard had also offered to take a polygraph. The government’s question, which asked
only about demeanor, cannot be construed as soliciting testimony concerning polygraph offers.
The prosecution’s questioning was also reasonable. The defense focused on the other
potential perpetrators who had access to Neuhard’s phone and laptop. By asking about their
demeanor under questioning, the government sought relevant evidence aimed at rebutting the

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defense’s principal theory. Cf. Jamison v. Collins, 291 F.3d 380, 385 (6th Cir. 2002) (holding
evidence concerning other suspects was relevant).
The district court also issued an immediate, clear, and forceful jury instruction. As soon
as the sidebar ended, the court instructed the jury that:
the reference here through the witness about other people offering to go take a
polygraph is something that should not have come in and so I’m going to order
that that be stricken, and so it’s something you cannot consider when you discuss
the case and deliberate on the case. So that testimony about other people offering
to take a polygraph is to be stricken and not considered by you.
R. 126, PageID 984–85. The court issued this instruction before the presentation of further
evidence and the directive made clear to jurors they could not consider the polygraph comments.
And “[j]urors are presumed to follow instructions.” United States v. Harvey, 653 F.3d 388, 396
(6th Cir. 2011). See also Neuhard, 770 F. App’x at 255 (holding on direct appeal that the district
court acted within its discretion by giving this instruction).
The record, furthermore, reveals no grounds on which to upset the district court’s
determination that the government did not deliberately introduce the polygraph evidence.
Neuhard argued in the evidentiary hearing on the § 2255 motion that Keith’s mention of the
polygraphs could not have been inadvertent. After all, the prosecutor had told her not to mention
them and the court had just instructed her not to recount hearsay. See Neuhard, 2022 WL
10613160 at *6. But Keith testified that, despite her experience as an agent, Neuhard’s trial was
her first time testifying, that she mistakenly made the polygraph remark, and that she
immediately felt “like an idiot” afterward. R. 197, PageID 1864; R. 200, PageID 1978–79. The
court found Keith’s explanation credible and we “give great deference to the district court’s
credibility determinations.” United States v. Prigmore, 15 F.4th 768, 777 (6th Cir. 2021)
(quotations and citation omitted). Neuhard points to no other evidence that the polygraph
testimony was intentional. We thus defer to the district court’s credibility determination in favor
of the government.
Finally, the remark was, at best, “only a small part of the evidence against the defendant.”
Zuern, 336 F.3d at 485. The credibility of the three men who offered to take polygraphs was not
vital to the case. As the court explained, these three lived in and had access to the home between

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2012 and 2013. Yet, whoever took the child pornography pictures did so in January 2014.
Neuhard, 2022 WL 10613160, at *6. Moreover, MV1 testified that Neuhard took the pictures
while molesting her in her grandmother’s basement. Id. The pictures’ metadata confirmed her
testimony, showing that they were taken at the grandmother’s house by a Samsung phone
identical to Neuhard’s. And police found the laptop and memory card containing these images—
alongside other downloaded child pornography videos—in Neuhard’s trailer.
In sum, Neuhard has not demonstrated a reasonable probability that the district court
would have granted a mistrial had Korn immediately requested an evidentiary hearing after the
polygraph comments. So, he has not shown prejudice as required by Strickland.
C.
Finally, Neuhard contests appellate counsel’s performance, arguing that she should have
appealed the denial of the mistrial motion based on bias from the polygraph evidence, rather than
appealing the court’s ruling refusing to introduce Neuhard’s polygraph offer. Once more, we
disagree.
At the outset, Neuhard’s presentation of the issues suggests that his direct appeal had
only two possible claims. That’s hardly the case. Neuhard’s appellate counsel actually raised
six sophisticated arguments on appeal, including a Fourth Amendment challenge to the search
warrant, a prosecutorial misconduct challenge to closing arguments, a sentencing enhancement
challenge concerning Neuhard’s state law convictions, a challenge to the causation standards for
restitution, and an overall cumulative error challenge. Brief for Appellant at ii–iii, Neuhard, 770
F. App’x 251 (Mem.). She is not at fault merely for not raising a seventh. See Ruggerio
Aldisert, Winning on Appeal 129 (2d ed. 2003) (“The most important decision you make in
writing a brief is to limit the issues to about three, no more.”). Indeed, appellate counsel “need
not (and should not) raise every nonfrivolous claim, but rather may select from among them in
order to maximize the likelihood of success on appeal.” Smith v. Robbins, 528 U.S. 259, 288
(2000); Hand v. Houk, 871 F.3d 390, 410 (6th Cir. 2017) (same). So appellate counsel fails the
performance prong only when the “ignored issues are clearly stronger than those presented.”
Hoffner v. Bradshaw, 622 F.3d 487, 505 (6th Cir. 2010) (quoting Robbins, 528 U.S. at 259).

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To meet this standard, “it is not enough that the ignored claim was stronger than one of
the claims actually presented; to overcome the presumption of effectiveness, the ignored claim
must have been stronger than all of those other claims that were actually presented.” Sullivan v.
United States, 587 F. App’x 935, 944–45 (6th Cir. 2014); see also Houston v. Phillips, 2022 WL
3371349, at *4 n.3 (6th Cir. Aug. 16, 2022) (“Houston does not argue that this defaulted claim
was ‘clearly stronger’ than the twelve other ineffective-assistance claims that his postconviction
counsel did raise”); Hutton v. Mitchell, 839 F.3d 486, 501 (6th Cir. 2016) (comparing two
omitted claims to the five claims raised on appeal), rev’d on other grounds, 582 U.S. 280 (2017);
Mapes v. Tate, 388 F.3d 187, 192 (6th Cir. 2004) (comparing the omitted issue to the twelve
assignments of error raised on appeal). The government does not raise this argument, however,
so we do not reject Neuhard’s arguments on this basis.
Focusing just on the two issues Neuhard has selected, we disagree that the mistrial denial
provided grounds for appeal that were “clearly stronger” than the polygraph issue. A court can
admit evidence that a party offered to take a polygraph if the evidence is relevant and the risk of
unfair prejudice or jury confusion does not outweigh its probative value. United States v. Harris,
9 F.3d 493, 501–02 (6th Cir. 1993). Neuhard’s appellate counsel advanced colorable arguments
that his uncounseled offer to take a polygraph showed that he lacked knowledge of the child
pornography on his devices, even though counsel later withdrew that offer. Brief for Appellant
at 41, Neuhard, 770 F. App’x 251 (Mem.). Appellate counsel also argued that, since the
government first breached the agreement not to introduce polygraph information, admitting
evidence that Neuhard offered to take a polygraph examination would not have resulted in
prejudice to either party because the damage was done. Id. at 41–42. These were reasonable
arguments to make on appeal.
Neuhard’s mistrial claim, meanwhile, had little chance of success on appeal. As we
explained above, even applying Neuhard’s preferred test, Zuern, 336 F.3d at 485, Neuhard fails
each of its prongs. See supra II.2. We can’t say that this claim was “clearly stronger” than the
one counsel raised.
Neuhard resists this conclusion, pointing to this court’s reasoning rejecting his appeal.
See Neuhard, 770 F. App’x at 255. But Neuhard relies exclusively on information that arose

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after his appellate counsel made her strategic decisions to argue that those decisions were
unreasonable. As the Supreme Court has explained, “[t]he Sixth Amendment guarantees
reasonable competence, not perfect advocacy judged with the benefit of hindsight.” Yarborough
v. Gentry, 540 U.S. 1, 8 (2003). “Once we eliminate the distorting effects of hindsight,”
Neuhard cannot “overcome the presumption that” his appellate counsel provided adequate
representation. Kendrick, 989 F.3d at 474.
In sum, Neuhard’s appellate counsel did not perform inadequately by failing to raise the
mistrial issue on appeal.
* * *
We AFFIRM the district court’s denial of Neuhard’s § 2255 habeas motion.

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