                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-3406
                        ___________________________

                                Robert V. Paulson, II

                       lllllllllllllllllllllPetitioner - Appellant

                                           v.

                      Newton Correctional Facility, Warden

                       lllllllllllllllllllllRespondent - Appellee
                                       ____________

                     Appeal from United States District Court
                  for the Southern District of Iowa - Des Moines
                                  ____________

                          Submitted: September 8, 2014
                            Filed: December 4, 2014
                                 ____________

Before BENTON, BEAM, and SHEPHERD, Circuit Judges.
                           ____________

SHEPHERD, Circuit Judge.

      This case returns to the court after remand to the district court to consider
whether the Iowa Court of Appeals’ decision in Paulson v. State, 759 N.W.2d 2, No.
07-1108, 2008 WL 4525476 (Iowa Ct. App. Oct. 1, 2008) (table) (unpublished) was
“contrary to” clearly established federal law. See Paulson v. Newton Corr. Facility,
703 F.3d 416 (8th Cir. 2013). On remand, the district court1 determined that the Iowa
Court of Appeals’ decision was contrary to federal law, and thus the district court
conducted a de novo review of Paulson’s claim of ineffective assistance of counsel,
determining Paulson did not suffer prejudice under Strickland v. Washington, 466
U.S. 668 (1984). Paulson again appeals the district court’s denial of his habeas
corpus petition filed pursuant to 28 U.S.C. § 2254. We now affirm.

                                           I.

       An Iowa jury convicted Robert Paulson of second-degree sexual assault for
sexually abusing his five-year-old daughter, M.P. The following evidence was
presented at trial. M.P. testified that Paulson touched her in the “wrong spot” and
told her to keep it a secret. When asked to identify on a diagram where her father
touched her, she identified her chest, but not vaginal area. M.P. further testified that
her father did not shower with her when she stayed at his house.

       Officer Suzanne Laurence testified that M.P. told her that her father touched
her vaginal area. M.P.’s therapeutic counselor, Lori Salsbury, testified that M.P. told
her that Paulson crept into her room while she was sleeping and touched her chest and
vaginal area. Salsbury also testified that, according to M.P., Paulson had a desire to
touch her because he did not have a wife. Officer David McDermott testified that
Paulson admitted that he became sexually aroused, thinking of his ex-wife, while
showering with M.P.

     The jury also heard from Shelly Piner, Paulson’s former wife and M.P.’s
mother. During Paulson’s trial, Piner testified as follows:



      1
        The Honorable James E. Gritzner, Chief Judge, United States District Court
for the Southern District of Iowa.

                                          -2-
       Well, I would tell Bob no because I was not interested or I wasn’t
       feeling good. Bob didn’t care. He would always force himself on top
       of me. And if he didn’t—if intercourse wasn’t that night, then it had to
       be in the morning or just whenever. And there would be times where I
       was in the shower and he would get in the shower and masturbate.

Additionally, Dana Wiley, Paulson’s former girlfriend, testified it “was not unusual”
for her to talk about sex with Paulson over the phone. According to Wiley, during
one telephone conversation, one of Paulson’s daughters was asleep next to him in his
bed as Paulson was masturbating and encouraging Wiley to do the same while talking
about sex. Although Wiley asked Paulson to stop, she testified that he continued,
thinking that she was teasing him, until she hung up.

       Heidi Buttars, who frequently cared for Paulson’s two daughters, testified that
she observed the girls engage in sexual behavior she considered unusual for children
their age,2 that the girls told her that they showered with their father daily, and that
the girls told her that they gave their father “Road Runner” kisses, where they would
touch their tongues together. Buttars also testified about one incident where she
observed Paulson rubbing M.P.’s neck and shoulders, and then moving to her chest
and pelvic area. Once Buttars and Paulson made eye contact, he stopped. When
Buttars later told M.P. that sort of touching was inappropriate, she told her that her
father does it all the time and says it is fine. Buttars also testified that Paulson’s other
daughter, C.P., asked Buttars if she thought that “Jesus could get my daddy to stop
hurting my bottom.”

      Paulson’s defense attempted to rebut the veracity of the government’s
witnesses, arguing that there was no direct, credible evidence that Paulson abused


       2
        Specifically, Buttars testified that M.P. simulated sexual acts by rubbing male
and female Barbie dolls together, rubbing her vaginal area, and touching her younger
sister’s vaginal area.

                                            -3-
M.P. Specifically, Dr. Ana Lopez-Dawson, a clinical psychologist, testified that the
method of questioning Salsbury employed when questioning M.P. was coercive.
Additionally, M.P.’s pediatrician and members of the community, including M.P.’s
teacher, testified that they observed no physical or emotional signs of sexual abuse.
The jury rejected Paulson’s defense, finding him guilty of second-degree sexual
abuse.

      Paulson filed a direct appeal of his conviction and sentence, and the Iowa Court
of Appeals affirmed his conviction. See State v. Paulson, 662 N.W.2d 370, No. 01-
0379, 2003 WL 118209, at *5 (Iowa Ct. App. Jan. 15, 2003) (table) (unpublished).
Subsequently, Paulson filed an application for postconviction relief, arguing 18
grounds of ineffective assistance of counsel by his trial and appellate counsel. The
Iowa district court dismissed Paulson’s postconviction application, but the Iowa
Court of Appeals remanded the case for an evidentiary hearing, concluding there were
“genuine issues of material fact underlying Paulson’s various ineffective assistance
of counsel claims.” Paulson v. State, 705 N.W.2d 340, No. 04-1321, 2005 WL
1963625, at *3 (Iowa Ct. App. Aug. 17, 2005) (table) (unpublished).

       On remand, the Iowa district court found that the attorneys’ performance was
“not deficient and did not result in prejudice.” Paulson, 2008 WL 4525476, at *1.
The Iowa district court explicitly addressed whether trial counsel was ineffective for
not objecting to the testimony of Paulson’s ex-wife that could imply he was sexually
violent. Id. at *4. Rejecting Paulson’s ineffective assistance of counsel claim, the
Iowa Court of Appeals held that, even if failing to object constituted deficient
assistance, “Paulson cannot prove by the preponderance of the evidence that
counsel’s objection . . . would have resulted in a different outcome at trial.” Id. at *4
(quoting Iowa district court). The Iowa Court of Appeals agreed with the Iowa
district court, holding that “[a]lthough we share the postconviction court’s concern
about the evidence of appellant’s forcing himself on his wife, we must agree with the
court’s conclusion appellant cannot demonstrate that exclusion of the challenged

                                          -4-
evidence would have resulted in a different outcome at trial.” Id. Paulson’s
application for further review was denied.

        In 2009, Paulson filed a petition for writ of habeas corpus under 28 U.S.C.
§ 2254. The district court denied relief, and this Court granted a certificate of
appealability on Paulson’s claim that his trial counsel was ineffective for failing to
challenge Piner’s testimony about his sexual behavior during their marriage. We
initially remanded the case to the district court for consideration of Paulson’s
argument that the Iowa Court of Appeals’ decision “was ‘contrary to’ clearly
established federal law because it applied a preponderance of the evidence standard
rather than a reasonable probability standard in concluding that his ex-wife’s
testimony was not prejudicial.” Paulson, 703 F.3d at 419-21. Following our
directions, the district court determined that the Iowa Court of Appeals’ decision was
indeed contrary to clearly established federal law. The district court then proceeded
to consider de novo whether Paulson’s trial counsel was constitutionally ineffective
for failing to object to Piner’s statement. See Johnson v. Williams, 133 S. Ct. 1088,
1097 (2013) (“Even while leaving ‘primary responsibility’ for adjudicating federal
claims to the States, AEDPA permits de novo review in those rare cases when a state
court decides a federal claim in a way that is ‘contrary to’ clearly established Supreme
Court precedent.” (citations omitted)). In conducting this review, the district court
determined, in light of the significant evidence against him, Paulson had failed to
show prejudice under Strickland because there was no reasonable probability that the
result of the trial would have been different had Piner’s statement been excluded. See
Strickland, 466 U.S. at 694.




                                          -5-
                                           II.

       Paulson once again appeals the denial of his section 2254 petition, challenging
the district court’s conclusion that he did not suffer prejudice.3 “When considering
the district court’s denial of a habeas petition, ‘we review the district court’s findings
of fact for clear error and its conclusions of law de novo.’” Middleton v. Roper, 455
F.3d 838, 845 (8th Cir. 2006) (quoting Lyons v. Luebbers, 403 F.3d 585, 592 (8th
Cir. 2005)). We agree with the district court’s determination that Paulson has not
shown prejudice under Strickland and, thus, has failed to establish ineffective
assistance of trial counsel.

       To prevail under Strickland, a defendant must first show that his attorney’s
performance was deficient. Strickland, 466 U.S. at 687. Considering an attorney’s
performance, we “must indulge a strong presumption” that the conduct was
reasonable, and “the defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial strategy.” Id.
at 689 (internal quotation marks omitted). In addition to showing that the counsel
was deficient, a “defendant must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. “Merely showing a conceivable effect is not enough; a
reasonable probability is one sufficient to undermine confidence in the outcome.”
Worthington v. Roper, 631 F.3d 487, 498 (8th Cir. 2011) (internal quotation marks
omitted).




      3
        The government, without filing a cross appeal, argues the district court erred
in concluding the Iowa Court of Appeals’ decision was “contrary to” clearly
established federal law. Because we agree with the district court’s determination that
Paulson has failed to show prejudice, it is unnecessary to consider the government’s
argument on this point.

                                           -6-
      Paulson’s attorney did not object to Piner’s testimony that Paulson forced her
to have sex and masturbated in front of her while she showered. Both parties seem
to agree that the failure to object was an error and not valid trial strategy, and the
Iowa Court of Appeals acknowledged that the testimony from Piner regarding her
sexual experiences with Paulson should not have been admitted. Because of these
acknowledgments of deficient conduct, we proceed to consideration of the prejudice
prong of the Strickland analysis, as did the district court.

       Paulson contends that Piner’s statements regarding Paulson’s sexual
preferences were so prejudicial that they alone destroyed his right to a fair trial.
Paulson essentially re-argues his defense at trial: M.P.’s testimony and statements
were coerced and unsupported by his witnesses; further Piner, his ex-wife,
vindictively sought his prosecution because of a bitter divorce. The jury, however,
rejected Paulson’s defense, and our job is not to re-litigate his case. Instead, we must
determine whether there is a reasonable probability that the jury would have reached
a different outcome had Piner’s testimony been excluded.

        Based on the direct and circumstantial evidence presented against Paulson, we
cannot conclude that Piner’s testimony undermines confidence in the outcome at trial.
Other testimony at trial supported the government’s characterization that Paulson was
prone to untoward sexual behavior. For instance, Wiley, Paulson’s former girlfriend,
testified that Paulson wanted her to have phone sex with him while he was
masturbating and his daughter was sleeping in his bed next to him. Additionally, the
jury heard from Officer McDermott that Paulson admitted to becoming sexually
aroused while showering with his daughter. Although the Iowa Court of Appeals
characterized Piner’s testimony as depicting Paulson as a “sexually violent person,”
the testimony is not so prejudicial that it undermines confidence in the outcome of the
trial, especially in light of the other evidence of Paulson’s sexually perverse behavior.




                                          -7-
      The jury also heard directly from M.P. that Paulson touched her in the “wrong
spot.” Buttars testified that Paulson rubbed M.P. on her chest and pelvic area, that
M.P. told her Paulson did this regularly, and that C.P. asked Buttars if “Jesus could
get my daddy to stop hurting my bottom.” The jury also heard other evidence against
Paulson indicating that he instructed M.P. to keep his sexual abuse a secret, that M.P.
told her counselor and a police officer that Paulson touched her vaginal area, that
Paulson told his daughters to fear police, and that M.P. and C.P. demonstrated
aggressive sexual behavior atypical of children their age.

       Although Piner’s testimony may have had a “conceivable effect” on the
outcome of the trial, Paulson cannot show that the testimony undermines confidence
in the outcome. See Worthington, 631 F.3d at 498. Therefore, we agree with the
district court’s conclusion that Paulson cannot show he was prejudiced under
Strickland as there is no reasonable probability that, had Piner’s testimony been
excluded, the result of the trial would have been different.

                                         III.

      Accordingly, we affirm the district court’s denial of Paulson’s 28 U.S.C.
§ 2254 petition.
                    ______________________________




                                         -8-
