Joshua Jake White v. Mark Nooth

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSHUA JAKE WHITE,
Petitioner-Appellee,
v.
MARK NOOTH,
Respondent-Appellant.
No. 18-35562
D.C. No. 2:16-cv-00323-SB
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted May 13, 2019
Portland, Oregon
Before: N.R. SMITH, WATFORD, and R. NELSON, Circuit Judges.
The State appeals the district court’s grant of Joshua White’s petition for
habeas corpus under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C.
§ 1291, and we reverse and remand with instructions to deny White’s petition.
White has not demonstrated cause to excuse the procedural default
FILED
MAY 21 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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stemming from his post-conviction counsel’s failure to assert an ineffective
assistance of trial counsel (IATC) claim based on trial counsel’s failure to object to
testimony that a nurse recommended the victim receive “counseling to deal with
the issue of sexual abuse.”1
Procedural default bars federal habeas review “unless the prisoner can
demonstrate cause for the default and actual prejudice as a result of the alleged
violation of federal law.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). To
show cause, White must demonstrate that post-conviction counsel “was ineffective
under the standards of Strickland.” Martinez v. Ryan, 566 U.S. 1, 14 (2012) (citing
Strickland v. Washington, 466 U.S. 668 (1984)). In evaluating the performance of
post-conviction counsel, the court must recognize that the “process of ‘winnowing
out weaker arguments on appeal and focusing on’ those more likely to prevail, far
from being evidence of incompetence, is the hallmark of effective . . . advocacy.”
Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes, 463 U.S.
745, 751–52 (1983)).
1White concedes that his claim is procedurally defaulted. See Beaty v.
Stewart, 303 F.3d 975, 987 (9th Cir. 2002); Or. Rev. Stat. § 138.550(3).
2

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Here, White has failed to show that post-conviction counsel was ineffective
in failing to raise the IATC claim, as it was reasonable for post-conviction counsel
to conclude that the claim was unlikely to succeed.
This court has emphasized that trial counsel cannot “be required to
anticipate” a change in the law, “because [counsel’s] conduct must be evaluated for
purposes of the performance standard of Strickland ‘as of the time of counsel’s
conduct.’” Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994) (quoting Strickland,
466 U.S. at 690). At the time of White’s trial, the nurse’s statement was admissible
under binding Oregon appellate caselaw. See State v. Sanchez-Cruz, 33 P.3d 1037,
1045 (Or. Ct. App. 2001); State v. Wilson, 855 P.2d 657, 661 (Or. Ct. App. 1993).
Thus, post-conviction counsel could have reasonably determined that trial counsel
was not required to make a fruitless objection, see Miller v. Keeney, 882 F.2d
1428, 1434–35 (9th Cir. 1989), or to anticipate a subsequent change in the law, see
Lowry, 21 F.3d at 346.2
2Although the district court determined that “it was the prevailing
professional norm, at the time of [White’s] trial, to object . . . to the admissibility
of diagnoses of child sexual abuse absent physical evidence,” such “[p]revailing
norms of practice . . . are guides to determining what is reasonable, but they are
only guides.” See Strickland, 466 U.S. at 688 (emphasis added).
3

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Additionally, because White was convicted in a bench trial, post-conviction
counsel could reasonably “assume that any questionable evidence [was]
disregarded.” State v. Cafarelli, 456 P.2d 999, 1001 (Or. 1969); see also United
States v. Caudle, 48 F.3d 433, 435 (9th Cir. 1995) (“[I]t would be most surprising
if [allegedly improper evidence] had any significance in a bench trial.”).3 Indeed,
there is no indication in the record that the trial court relied on the nurse’s
testimony in reaching its conclusions, and the probative value of the testimony is
questionable. The nurse testified only that she recommended “counseling to deal
with the issue of sexual abuse,” and she ultimately assessed the victim only as
“highly concerning for sexual abuse,” which, as explained by White, means that
the “evaluator does not have enough information to conclude that a child has been
sexually abused.” Accordingly, post-conviction counsel could have reasonably
determined that White’s IATC claim had little likelihood of success and winnowed
it out in favor of those more likely to prevail.
3Oregon’s appellate courts have found the admission of vouching testimony
by an abuse evaluator during a bench trial to be prejudicial on a few occasions. See
State v. Potts, 255 P.3d 614, 615 (Or. Ct. App. 2011) (per curiam); State v. Davilia,
244 P.3d 855, 860 (Or. Ct. App. 2010); State v. Marrington, 73 P.3d 911, 916–17
(Or. 2003). However, post-conviction counsel could have reasonably determined
that those cases are distinguishable, because the trial court here never referred to
the nurse’s medical recommendation or asked the nurse questions about it, and
none of the nurse’s testimony directly addressed the victim’s credibility.
4

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REVERSED and REMANDED.
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