Glenn Elliott Leonard v. STATE OF OREGON; FRANKIE, Superintendent

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GLENN ELLIOTT LEONARD,
Petitioner-Appellant,
v.
STATE OF OREGON; FRANKIE,
Superintendent,
Respondents-Appellees.
No. 16-35225
D.C. No. 2:13-cv-01865-YY
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Submitted March 9, 2018**
Portland, Oregon
Before: N.R. SMITH, CHRISTEN, and HURWITZ, Circuit Judges.
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
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
MAR 13 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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 (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. 137 S. Ct. 2058, 2062–63 (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, 218 P.3d 104
(Or. 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, 657 P.2d 1215, 1221 (Or. 1983), with State v. Sanchez-Cruz, 33 P.3d
1037, 1038–39, 1045 (Or. Ct. App. 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).

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AFFIRMED.

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