                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JUN 3 2019
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LUIS ARMANDO MESTA,                              No.   17-35801

              Petitioner-Appellant,              D.C. No. 2:14-cv-01625-AA

 v.
                                                 MEMORANDUM*
JOHN M. MYRICK,

              Respondent-Appellee.


                    Appeal from the United States District Court
                             for the District of Oregon
                      Ann L. Aiken, District Judge, Presiding

                        Argued and Submitted May 17, 2019
                                 Portland, Oregon

Before: N.R. SMITH and WATFORD, Circuit Judges, and SELNA,** District
Judge.

      Luis Armando Mesta appeals the district court’s denial of his habeas petition

under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable James V. Selna, United States District Judge for the
Central District of California, sitting by designation.
Penalty Act of 1996 (AEDPA). We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

      The Oregon Court of Appeals did not unreasonably deny Mesta’s ineffective

assistance of appellate counsel claim, which is based on counsel’s failure to amend

Mesta’s opening brief on direct appeal to challenge the admission of a medical

diagnosis of sexual abuse without physical evidence under Rule 403 of the Oregon

Rules of Evidence (Rule 403).

      AEDPA creates a scheme of double-deference for reviewing Mesta’s claim.

First, the state courts “must indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance,” and Mesta “must

overcome the presumption that, under the circumstances, the challenged action

‘might be considered sound . . . strategy.’” Strickland v. Washington, 466 U.S. 668,

689 (1984) (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Additionally,

counsel’s “conduct must be evaluated . . . ‘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). Second, we must uphold the Oregon Court of Appeals’ decision denying

Mesta’s claim, “unless it is shown that the . . . decision ‘was contrary to’ federal

law then clearly established in the holdings of [the United States Supreme] Court;

or that it ‘involved an unreasonable application of’ such law; or that it ‘was based


                                           2
on an unreasonable determination of the facts’ in light of the record before the state

court.” Harrington v. Richter, 562 U.S. 86, 100 (2011) (citations omitted).

      Given the strong presumption in favor of counsel’s reasonable professional

assistance, it was not unreasonable for the state court to determine that Mesta failed

to meet his high burden of demonstrating that appellate counsel’s performance was

deficient.1 Though the Oregon Supreme Court has now declared that medical

diagnoses of sexual abuse absent physical evidence are inadmissible under Rule

403, State v. Southard, 218 P.3d 104, 113 (Or. 2009), similar diagnoses of sexual

abuse were generally admissible under Oregon law at the time appellate counsel

filed Mesta’s opening brief. See State v. Sanchez-Cruz, 33 P.3d 1037, 1038–39,

1045 (Or. Ct. App. 2001); State v. Wilson, 855 P.2d 657, 658 (Or. Ct. App. 1993).

Accordingly, Mesta does not assert that appellate counsel was required to

challenge the admission of the relevant medical diagnosis on Rule 403 grounds in

the opening brief.

      Instead, Mesta argues that appellate counsel was required to amend the brief

to add a Rule 403 challenge once the Oregon Supreme Court issued a press release

stating that, in Southard, the court would consider the admissibility of medical



      1
       Because we find that counsel was not deficient, we do not reach the issue of
prejudice. See Strickland, 466 U.S. at 687.
                                          3
diagnoses of sexual abuse on both Rule 403 and improper vouching grounds. The

Oregon Court of Appeals rejected this argument, concluding that counsel “may

have reasonably decided . . . that raising [the Rule 403 claim] after the Supreme

Court granted review in Southard was not worth the candle.” Mesta v. Franke, 322

P.3d 1136, 1151 (Or. Ct. App. 2014).

      Counsel could have determined that an improper vouching challenge against

the medical diagnosis—which counsel raised—was more likely to succeed than a

Rule 403 challenge, and thereby winnowed out the Rule 403 challenge. See Smith

v. Murray, 477 U.S. 527, 536 (1986) (“[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 appellate advocacy.”

(quoting Jones v. Barnes, 463 U.S. 745, 751–52 (1983))). This determination was

reasonable, because existing caselaw emphasized the impermissibility of vouching

testimony in similar contexts. See State v. Milbradt, 756 P.2d 620, 624 (Or. 1988)

(“We have said before, and we will say it again, but this time with emphasis-we

really mean it-no psychotherapist may render an opinion on whether a witness is

credible in any trial conducted in this state. The assessment of credibility is for the

trier of fact and not for psychotherapists.”) (emphasis in original); State v. Keller,

844 P.2d 195, 199–202 (Or. 1993). Indeed, Mesta does not claim that this initial


                                           4
winnowing determination was improper; instead he claims error only after the

Oregon Supreme Court issued its press release twelve days later.2 However,

nothing in the press release altered the winnowing calculus. As the state court

emphasized, “there was nothing to particularly indicate that the court was going to

decide the case on [the Rule 403] issue, let alone decide it in a manner favorable to

petitioner.” Mesta, 322 P.3d at 1149; see also Lowry, 21 F.3d at 346 (holding that

counsel is not “required to anticipate” a drastic change in the law).

      Additionally, the press release expressly directed that “practitioners ‘should

not rely on . . . the statement of issues to be decided . . . as indicating the questions

that the Supreme Court will consider.’” Mesta. 322 P.3d at 1147 n.4 (emphasis

added).3 Given the qualified nature of this release, we simply cannot find that,


      2
        Mesta does claim that counsel did not choose to make a vouching argument
instead of a Rule 403 argument, noting that counsel later explained that he
“attempt[ed] to obtain relief for [Mesta] on ultimately the same basis as Southard.”
However, the record supports the state court’s contrary finding. The appellate brief
exclusively discussed vouching concerns, without mentioning Rule 403 or
engaging in the type of balancing analysis required by that Rule. Though the brief
asserts that vouching testimony “misleads the jury” and “confuses the issues that
are before it,” those statements merely presented justifications for a rule against
vouching, and did not constitute a separate Rule 403 argument.
      3
        The prudence of the court’s disclaimer is evident from the fact that the press
release indicated that whether medical diagnoses of sexual abuse without physical
evidence constitute impermissible vouching was also an issue on review. As Mesta
acknowledges, that was not the issue that was ultimately ruled upon in Southard.
See Mesta, 322 P.3d at 1147.
                                            5
contrary to the state court’s determination, the release imposed a constitutional

duty for counsel to amend Mesta’s opening brief to incorporate all potential issues

mentioned therein.

      AFFIRMED.




                                          6
Mesta v. Myrick, No. 17-35801
                                                                       FILED
                                                                        JUN 3 2019
WATFORD, Circuit Judge, dissenting:                                 MOLLY C. DWYER, CLERK
                                                                     U.S. COURT OF APPEALS

      I would reverse. In my view, the Oregon Court of Appeals unreasonably

applied Strickland v. Washington, 466 U.S. 668 (1984), in concluding that Mesta’s

direct appeal counsel exercised reasonable professional judgment in declining to

amend Mesta’s opening brief.

      Mesta’s lawyer’s decision cannot be justified as an exercise in “winnowing”

his arguments on appeal. Mesta raised only two arguments in his opening brief.

His first argument—that Oregon’s non-unanimous jury verdicts violate the state

constitution—stood no chance, for it had already been rejected by the Oregon

Supreme Court. See State v. Osbourne, 57 P.2d 1083, 1084 (Or. 1936). His

remaining argument, and the only argument relevant here, was that the expert

sexual-abuse diagnoses should have been excluded at trial. Mesta raised only one

legal ground in support of that argument—improper vouching—but that ground

was doomed to fail in the Oregon Court of Appeals as well, as it was foreclosed by

prior precedent. See State v. Wilson, 855 P.2d 657, 660 (Or. Ct. App. 1993). So

when the Oregon Supreme Court granted review in State v. Southard, 218 P.3d 104

(Or. 2009), and indicated that it would be considering not only the improper

vouching ground but also exclusion under Rule 403, there was no downside to

amending the opening brief to add Rule 403 as an additional ground. Mesta’s trial
                                                                         Page 2 of 3

counsel had properly preserved both grounds. At that point, Mesta’s appellate

lawyer was not trying to maximize Mesta’s chances of prevailing in the Oregon

Court of Appeals. Mesta was going to lose in that court either way.

      The only strategic call to be made was deciding what effect—positive or

negative—adding the Rule 403 ground to Mesta’s Court of Appeals opening brief

would have on his chances of success in the Oregon Supreme Court, in the event

Southard came out in the defendant’s favor. As to that strategic call, there was no

downside whatsoever to adding the Rule 403 ground. Doing so would not have

reduced Mesta’s chances of success in the Oregon Supreme Court; it would only

have improved his chances of success by ensuring that he had preserved for review

in the Oregon Supreme Court both of the legal grounds that the court itself had

indicated it would be considering in Southard. No competent lawyer could have

made the decision to forgo that obvious upside in the face of no conceivable

downside.

      That remains true even though Mesta’s lawyer obviously could not have

predicted which of the two grounds the Oregon Supreme Court might ultimately

rest its decision on. Indeed, it is precisely because Mesta’s lawyer could not

predict in advance on which ground the Supreme Court might rely that his failure

to preserve both grounds constituted deficient performance. I think that conclusion

is sufficiently obvious to render the contrary decision of the Oregon Court of
                                                                         Page 3 of 3

Appeals unreasonable under 28 U.S.C. § 2254(d)(1).

      As to prejudice, the State has conceded that, but for his lawyer’s mistake,

Mesta would have been granted a new trial following the decision in Southard.

His petition for a writ of habeas corpus should therefore have been granted.
