                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                        MAR 13 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

GLENN ELLIOTT LEONARD,                          No.    16-35225

                Petitioner-Appellant,           D.C. No. 2:13-cv-01865-YY

 v.
                                                MEMORANDUM*
STATE OF OREGON; FRANKIE,
Superintendent,

                Respondents-Appellees.

                  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).
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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