                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-1321
                        ___________________________

                               Routy W. Abernathy

                       lllllllllllllllllllll Plaintiff - Appellant

                                           v.

            Ray Hobbs, Director, Arkansas Department of Correction

                       lllllllllllllllllllll Defendant - Appellee
                                      ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Pine Bluff
                                  ____________

                           Submitted: January 16, 2014
                                     Filed:
                                ____________

Before WOLLMAN, BYE, and MELLOY, Circuit Judges.
                          ____________

BYE, Circuit Judge.

       An Arkansas jury found Routy Abernathy guilty of raping his two minor nieces
in violation of Ark. Code Ann. § 5-13-103. He received a sentence of sixty years of
imprisonment. After exhausting his state court remedies, Abernathy filed a petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court1 dismissed
all four counts of the § 2254 petition, but granted a certificate of appealability on two
counts. On appeal, Abernathy claims his counsel was ineffective by failing to object
to an expert vouching for a witness and by stating, during opening statements,
Abernathy would only be called to testify if the state had proven its case. We affirm
the district court.

                                            I

       An Arkansas jury convicted Abernathy of raping his two minor nieces, S.D. and
C.D., who were ten and eleven years old, respectively, at the time of the rapes. The
girls are not Abernathy's biological nieces, but rather are the daughters of his wife's
sister. Abernathy's conviction was based largely on the trial testimony of the two
victims because there was no physical evidence and the victims had initially denied
the rapes when interviewed by investigators.

       Before trial, Abernathy filed a motion in limine asking to prohibit the admission
of any testimony from police investigators, interrogators, and medical personnel
expressing an opinion on the credibility of the testifying minors. The trial court ruled
this type of testimony would not be allowed.

       The case proceeded to trial. During his opening statement, Abernathy's counsel
made the statement: "I have a duty to do my job and not allow [my client] to take the
stand if I don't believe the State has proven its case beyond a reasonable doubt at the
time it rests its case." Trial Tr. 385.




      1
        The Honorable J. Leon Holmes, United States District Judge for the Eastern
District of Arkansas, adopting the report and recommendation of the Honorable Beth
Deere, United States Magistrate Judge for the Eastern District of Arkansas.

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      The testimony at trial included testimony by both victims. C.D. testified about
one incident when Abernathy digitally penetrated her vagina. S.D. testified about four
incidents, where Abernathy penetrated her vagina with a dildo, Abernathy penetrated
her vagina with his penis, Abernathy penetrated her anus with a dildo and then
penetrated her vagina with his penis, and Abernathy penetrated her vagina with his
penis. Additionally, M.S., a prior victim, also testified pursuant to the pedophile
exception to Arkansas Rule of Evidence 404(b), which allows the state to present
evidence of prior similar acts of pedophilia. M.S. testified Abernathy digitally
penetrated her anus at a time Abernathy had a romantic relationship with her mother
in Oklahoma.

      Abernathy's counsel called into question the reliability and truthfulness of the
victims' testimony through medical personnel and investigators. As part of this
defense strategy, Abernathy called Cheryl Green, a physician assistant, who had seen
and examined M.S. Green testified about the examination and the lack of physical
evidence. During cross-examination, the state had the following exchange with
Green.

      Q: Ms. Green, when you talked to this girl, as a matter of fact, you
      believed her, did you not?
      A: Yes sir.
      Q: Even though you found no evidence of physical injury?
      A: Yes sir.

Abernathy's counsel did not object to the questions or answers.

      Abernathy testified in his own defense and denied the accusations in total.

      The jury convicted Abernathy of rape as to C.D. and S.D. Abernathy timely
appealed his convictions, which the Arkansas Court of Appeals affirmed. Abernathy

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v. State, 2009 Ark. App. 702, 2009 WL 3460705 (Ark. Ct. App. 2009). Abernathy
then filed a state habeas petition with the Arkansas trial court under Arkansas Rule of
Criminal Procedure 37, claiming ineffective assistance of counsel on thirteen grounds.
The court conducted an evidentiary hearing and denied the petition in full. Abernathy
appealed to the Supreme Court of Arkansas, which affirmed the denial of post-
conviction relief. Abernathy v. State, 386 S.W.3d 477 (Ark. 2012).

        Abernathy filed a timely habeas petition in federal district court, raising four
claims of ineffective assistance of counsel. The case was referred to Magistrate Judge
Beth Deere, who recommended the petition be denied and dismissed. The district
court adopted the magistrate's recommendation and also granted a certificate of
appealability on two grounds. This appeal followed, in which Abernathy raises two
grounds for relief: (1) a claim Abernathy suffered ineffective assistance of counsel
when trial counsel failed to object to vouching of a minor witness by an expert
witness, and (2) a claim Abernathy suffered ineffective assistance of counsel when
trial counsel told the jury during opening statements he would not call Abernathy to
the stand unless the state had proven its case and Abernathy subsequently took the
stand.

                                           II

        In a habeas proceeding under 28 U.S.C. § 2254, this Court reviews the district
court's conclusions of law de novo and its factual findings for clear error. Bobadilla
v. Carlson, 575 F.3d 785, 790 (8th Cir. 2009).

      The Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C.
§ 2254, limits the power of federal courts to grant habeas relief for any claim
"adjudicated on the merits in State court proceedings" unless the adjudication:




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      (1) resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as
      determined by the Supreme Court of the United States; or

      (2) resulted in a decision that was based on an unreasonable
      determination of the facts in light of the evidence presented in the State
      court proceeding.

28 U.S.C. § 2254(d). AEDPA modified a federal habeas court's role in reviewing
state prisoner applications in order to prevent federal habeas retrials and to ensure
state-court convictions are given effect to the extent possible under law. Colvin v.
Taylor, 324 F.3d 583, 586 (8th Cir. 2003).

       Abernathy seeks relief based on two claims of ineffective assistance of counsel.
The Sixth Amendment to the United States Constitution guarantees the right to
effective assistance of counsel in criminal prosecutions. U.S. Const. Amend. VI; see
also Powell v. Alabama, 287 U.S. 45 (1932); Johnson v. Zerbst, 304 U.S. 458 (1938);
Gideon v. Wainwright, 372 U.S. 335 (1963). A defendant who claims to have been
deprived of effective assistance of counsel must show: (1) that his lawyer's
representation fell below an objective standard of reasonableness; and (2) that the
lawyer's deficient performance prejudiced the defendant. Strickland v. Washington,
466 U.S. 668, 688, 694 (1984); Morelos v. United States, 709 F.3d 1246, 1249-50 (8th
Cir. 2013).

       For the first requirement of the Strickland test, "the court must apply an
objective standard and 'determine whether, in light of all the circumstances, the
identified acts or omissions were outside the wide range of professionally competent
assistance,' Strickland, 466 U.S. at 690, while at the same time refraining from
engaging in hindsight or second-guessing of trial counsel's strategic decisions." Nave
v. Delo, 62 F.3d 1024, 1035 (8th Cir. 1995).



                                         -5-
       To establish the prejudice of the second prong of the Strickland test, the
petitioner must show" there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 694. Because hindsight analysis is problematic, courts
"indulge a strong presumption that counsel's conduct falls within the wide range of
professional assistance." United States v. Staples, 410 F.3d 484, 488 (8th Cir. 2005).

      Taking AEDPA and Strickland together establishes a "doubly deferential"
standard of review in § 2254 cases. Williams v. Roper, 695 F.3d 825, 831 (8th Cir.
2012) (quoting Cullen v. Pinholster, 131 S.Ct. 1388, 1410 (2011)).

                                           A

       Abernathy claims counsel was ineffective in failing to object to a defense expert
vouching for the credibility of M.S. Green testified in Abernathy's defense regarding
the lack of physical evidence of any rape of M.S., who provided testimony of a prior
rape which had not been separately charged. The state, in contravention of a prior trial
court order, solicited a vouching statement from Green regarding the truthfulness of
M.S. The Supreme Court of Arkansas held Abernathy did not demonstrate he was
sufficiently prejudiced by counsel's failure to object to Green's testimony to meet his
burden of proof, the trial court had instructed the jury concerning its obligation to
assess the credibility of witnesses, and counsel had effectively challenged M.S.'s
credibility during his closing argument. Abernathy, 386 S.W. 3d at 483.

       The decision of the Supreme Court of Arkansas was not contrary to clearly
established federal law, as determined by the Supreme Court, or an unreasonable
application of federal law, because the Supreme Court of Arkansas properly applied
the governing legal rule from Strickland. See Williams v. Taylor, 529 U.S. 362, 413
(2000).



                                          -6-
       The Supreme Court of Arkansas also did not render a decision "based on an
unreasonable determination of the facts." 28 U.S.C. § 2254(d). The Supreme Court
of Arkansas examined the facts of the case and held Abernathy failed to demonstrate
prejudice sufficient to grant post-conviction relief. The court noted the jurors were
instructed they were the "sole judges of the weight of the evidence and the credibility
of witnesses," which the court considered a curative instruction. See Engesser v.
Dooley, 457 F.3d 731, 738 (8th Cir. 2006) (holding strength of evidence and jury
instructions cured potential prejudice from a law enforcement officer opining
defendant was not truthful during interview); Oleson v. Class, 164 F.3d 1096, 1101-
02 (8th Cir. 1999) (holding curative jury interactions meant trial was not unfair despite
counsel's failure to object to a psychologist's vouching of a sexual abuse victim's
statement). Additionally, the court noted Abernathy's counsel properly challenged
M.S.'s credibility during closing argument. The Supreme Court of Arkansas
reasonably applied Strickland to find expert vouching of a prior victim was not
sufficiently prejudicial to warrant post-conviction relief. See Adesiji v. State of
Minnesota, 854 F.2d 299, 301 (8th Cir. 1988) (holding, in a § 2254 case, given the
testimony of victims and court's instructions to jury that jury determine credibility of
witnesses, expert testimony regarding general trustworthiness of child victims did not
make trial fundamentally unfair).

       Giving proper deference, we cannot say the decision of the Supreme Court of
Arkansas was an unreasonable application of clearly established federal law or
resulted in a decision that was based on an unreasonable determination of the facts.
Thus, we affirm the district court's ruling that Abernathy did not suffer from
ineffective assistance of counsel in this regard.

                                           B

      Abernathy next claims counsel was ineffective based on a statement made
during opening statements. Defense counsel, during opening statements, informed the

                                          -7-
jury he would not call Abernathy to the stand in his own defense if counsel did not
believe the state had proven the case beyond a reasonable doubt at the time the state
rested its case. Abernathy argues that, because he took the stand in his own defense,
trial counsel effectively conceded the government had proven guilt beyond a
reasonable doubt. At the Rule 37 hearing, Abernathy's counsel testified his statements
were not meant to indicate the state had met its burden, but rather were meant to
deflect any animosity the jury might have toward Abernathy for not testifying. The
Supreme Court of Arkansas held counsel's statement about Abernathy's testimony was
tactical in nature, the trial court had properly instructed the jury that opening
statements were not evidence, and Abernathy failed to demonstrate prejudice from
counsel's remarks. Abernathy, 386 S.W. 3d at 483.

       Again, the decision of the Supreme Court of Arkansas was not contrary to
clearly established federal law, as determined by the Supreme Court, or an
unreasonable applicable of federal law, because the Supreme Court of Arkansas
properly applied the governing legal rule from Strickland. See Williams v. Taylor,
529 U.S. 362, 413 (2000).

       The Supreme Court of Arkansas also did not render a decision "based on an
unreasonable determination of the facts." 28 U.S.C. § 2254(d). The Supreme Court
of Arkansas found counsel's decision to make the statement was tactical in nature, and,
while the court questioned the professional judgment of the statement, ultimately
concluded the trial court's instruction to the jury, which clarified that opening
statements are not evidence, served to resolve any confusion which may have resulted
from the comment. Cf. United States v. Swanson, 943 F.2d 1070 (9th Cir. 1991)
(finding prejudice where defense attorney openly conceded in opening and closing
statements that government had met its burden of proof). Accordingly, the court
found Abernathy had failed to demonstrate prejudice from the remark.




                                         -8-
       Giving proper deference, we cannot say the decision of the Supreme Court of
Arkansas was an unreasonable application of clearly established federal law or
resulted in a decision that was based on an unreasonable determination of the facts
because the factual findings are well-supported by the record. Thus, we affirm the
district court's ruling that Abernathy did not suffer from ineffective assistance of
counsel in this regard.

                                        III

      For the reasons stated, we affirm the denial of Abernathy's habeas petition.
                       ______________________________




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