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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-12772
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 2:11-cv-00062-WCO



IRVIN SHAY VIERS,

                                                          Petitioner-Appellant,

                                  versus

WARDEN,

                                                         Respondent-Appellee.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                              (May 19, 2015)

Before TJOFLAT, HULL and WILSON, Circuit Judges.

PER CURIAM:
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      Irvin Viers, a state prisoner, appeals the district court’s denial of his petition

for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Upon review of the

record, and after consideration of the parties’ briefs, we affirm.

                                 I. BACKGROUND

      On September 23, 2002, a Georgia jury found Viers guilty of one count of

aggravated sexual battery, in violation of O.C.G.A. § 16-6-22.2, and one count of

cruelty to children, in violation of O.C.G.A. § 16-5-70. On December 16, 2002,

the state court merged the offenses and sentenced Viers to 20 years’ imprisonment.

The victim, HV, was the two-year-old daughter of Viers and his codefendant wife,

Terena Viers (“Terena”). Terena was convicted of cruelty to children and

sentenced to 20 years’ imprisonment, with 15 years to serve.

A.    State’s Trial Evidence

      The evidence showed that, on May 9, 2001, Viers and Terena brought HV to

the emergency room. HV, then two years and four months old, was bleeding from

a five- to six-centimeter laceration on her perineal area, the area between her

vagina and anal opening, and had multiple bruises on her trunk and legs.

Ultimately, a pediatric surgeon performed corrective surgery on HV’s perineum.

The surgeon testified that HV’s injuries were consistent with abuse, and the

damage to her perineum was caused by significant force and could have been

caused by repeated penetration with a stick.


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       A forensic pediatrician who examined HV the day after her surgery testified

that he observed lacerations in her anus and that her injuries were consistent with

sexual abuse and the insertion of a stick into her anus. The jury additionally heard

evidence that Viers gave multiple, inconsistent explanations to the emergency

room nurse and law enforcement officers of how HV received her injuries, and that

blood matching HV’s DNA was found on her car seat.

       Dr. Nancy Aldridge, who conducted a forensic evaluation of HV, also

testified.1 Dr. Aldridge completed her evaluation of HV over the course of six

interviews between July 2001 and October 2001, beginning when HV was two

years and seven months old. Dr. Aldridge testified that, in interviewing HV, she

was careful not to ask leading or suggestive questions or provide positive

reinforcement. During the interviews, HV indicated that she had “boo-boos” on

various parts of her body, demonstrating on anatomically correct dolls that the

injuries were on her arms, abdomen, buttocks, and vaginal and genital areas. HV

indicated that the “boo-boos” came from Viers and Terena.

       Dr. Aldridge testified that HV also repeatedly changed the dolls’ diapers,

stating that they had “doo-doo” in their diapers. More than once, HV struck a doll,

and when Dr. Aldridge asked her why, she explained that the doll had soiled its

       1
        Dr. Aldridge was a registered nurse; had a bachelor’s degree in psychology, a master’s
degree in social work, and a Ph.D. in clinical research; had been in practice as a licensed clinical
social worker for almost fifteen years; and had evaluated “many, many” children who had been
abused emotionally, psychologically, physically, or sexually.
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diaper. According to Dr. Aldridge, HV obsessively demonstrated “three consistent

things”: “the roughness with the dolls, . . . the boo-boos and where they came

from, and the baby’s doo-doo and the striking of the babies and the aggressive play

with the baby dolls after that.”

      In HV’s fourth or fifth session with Dr. Aldridge, HV told Dr. Aldridge that

her “da-da” (her name for Viers) caused the “boo-boo” in her vaginal area. When

Dr. Aldridge asked HV what her father had used to hurt her, HV replied that he

used a stick from the front yard on one occasion and a bat at another time. HV also

pointed to the vaginal area of an anatomically correct doll. HV indicated that her

vaginal injury was inflicted after she had a dirty diaper.

      In the course of her testimony, Dr. Aldridge also made five statements to

which no contemporaneous objection was raised by Viers’s attorney. Viers later

maintained that Dr. Aldridge’s statements should have been excluded as improper

opinion testimony under Georgia law. Here are the statements. First, on cross-

examination, Dr. Aldridge was questioned about the report she prepared on the

forensic evaluation and asked whether her “conclusion was that . . . the only . . .

person [HV] had accused [of hurting her] was her father.” Dr. Aldridge responded,

“Yes, sir. But if you go up another sentence, I had indicated that it was most likely

that she was physically abused by her mother and her father.”




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      Second, Dr. Aldridge testified that HV could show Dr. Aldridge what

“happened to the doll because it happened to [HV].” Third, in in responding to a

cross-examination question about whether HV could “just be making up a story

about a doll,” Dr. Aldridge stated that HV had “definite medical findings,”

including evidence of trauma to her vaginal and anal area, which was not “just a

coincidence.” Fourth, when asked about HV’s statements that other individuals

had hurt her, including an individual named “Ginger” and a cat, Dr. Aldridge

testified, “I think this child was so traumatized that she is concerned that it might

happen again and that other individuals could hurt her.”

      Fifth, Dr. Aldridge was asked whether HV’s repeatedly associating soiling

her diaper with “harm by her parents” could be “consistent with the fact that she

was abused.” Dr. Aldridge replied, “Yes, sir. . . . It’s very consistent when she has

been abused, because . . . children usually repeat the core experience that they had.

. . . [HV] continued to react to it and act it out, because it’s confusing, it’s

traumatizing to her, and she is trying to figure out what happened to her.”

      On cross-examination, Dr. Aldridge admitted that she did not videotape her

interview sessions with HV; that she referred to HV several times in her report as a

“very precious little girl”; and that she picked up HV and carried HV from the

waiting room to her office at the beginning of each session. Dr. Aldridge noted,

however, that she generally did not hold HV during the sessions. Dr. Aldridge


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conceded that, before her first session with HV, HV already had been interviewed

by several people, including a caseworker and an investigating officer. Finally,

although HV’s foster family reported that HV had a small vocabulary, Dr.

Aldridge found her to have a larger vocabulary than was reported, to be very

talkative, and to sometimes speak in full sentences.

       Dennis Abercrombie, HV’s foster father, testified that HV came to live with

his family in June 2001 after about a month with another foster family. At that

time, HV was “very frail,” had “quit taking solid food,” and was losing weight and

failing to thrive. HV seemed afraid of men and was tentative around women. She

had frequent nightmares and would become hysterical after soiling her diaper. On

one occasion, in July or August 2001, while looking at photographs of her family,

HV said to Abercrombie, without prompting or questioning, “Daddy hurt my boo-

boo,” referring to her bottom or back side. On cross-examination, Abercrombie

admitted that he and his wife wished to adopt HV if the opportunity arose.

B.     Defendant’s Trial Evidence

       At trial, attorney Drew Powell represented Viers. After the State rested,

attorney Powell called Dr. James Stark, a psychologist, to testify for the defense. 2



       2
         Dr. Stark had bachelor’s and master’s degrees in psychology and a Ph.D. in clinical
psychology. At the time of trial, he had been practicing full-time as a licensed psychologist in
Georgia for thirty years, with specialization in the areas of childhood and adolescence, abuse and
neglect, forensic psychology, custody and visitation issues, and the study of allegations of abuse.
Since 1966, he had interviewed thousands of children regarding abuse and neglect issues, and he
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       Based on his extensive experience as a certified forensic examiner, Dr. Stark

outlined various mistakes by child forensic interviewers that could undermine the

accuracy of an evaluation: (1) losing their objectivity; (2) using anatomical dolls,

which studies had shown to be problematic; (3) touching or hugging the child,

which could positively “reinforce whatever happened just before” the contact; (4)

relying on a “little kid[’s]” ability to think abstractly, as “very, very young”

children tend to think concretely; (5) failing to audiotape or videotape the forensic

evaluation, especially in cases of alleged sexual abuse, so that subsequently it can

be determined if the evaluator was encouraging certain responses; and

(6) evaluating a child over the course of several sessions, or allowing different

people to interview the child, as the child can take on questions and comments as

real events.

       Dr. Spark also specifically criticized various methods of Dr. Aldridge and

aspects of her evaluation of HV, including that Dr. Aldridge evaluated HV over the

course of six sessions, which could have some “practice effects”; that Dr. Aldridge

failed to videotape or audiotape the sessions; and that Dr. Aldridge failed to

reconcile some inconsistencies in HV’s statements. Based on Dr. Stark’s

examination of Dr. Aldridge’s report, it appeared to Dr. Stark that Dr. Aldridge,




was a certified forensic examiner. Dr. Stark was admitted as an expert in the fields of clinical
and forensic psychology, particularly related to children, and child sexual abuse and neglect.
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from the beginning, “assumed” that Viers caused HV’s injuries and ignored HV’s

allegations against other individuals, such as “Ginger” or the cat. For example, Dr.

Aldridge’s report did not include any history on HV’s first foster family, and it was

possible that HV was attempting to communicate “something” that happened with

that family. Dr. Aldridge also showed a lack of objectivity, referring to HV as

“precious” and “cute” in her report, and may have positively reinforced HV

through holding and hugging her. Finally, the fact that HV apparently knew only a

few words before starting her sessions with Dr. Aldridge, but demonstrated her

large vocabulary as the sessions progressed, suggested that someone was teaching

her new words.

      In closing argument, attorney Powell argued, inter alia, that Dr. Stark’s

testimony demonstrated the problems with Dr. Aldridge’s report and methods,

including her bias.

C.    Motion for a New Trial

      On January 2, 2003, with the assistance of new court-appointed counsel,

Viers filed a motion for new trial. In May and June 2008, respectively, Viers’s

counsel filed two amended motions for new trial.

      Viers alleged, inter alia, that trial attorney Powell rendered ineffective

assistance of counsel through failing to object to: (1) the improper ultimate-issue

“opinion” testimony of Dr. Aldridge, specifically Dr. Aldridge’s statement that she


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“had indicated that it was most likely that [HV] was physically abused by her

mother and her father”; and (2) the improper admission of HV’s statements

through the hearsay testimony of Dr. Aldridge and foster father Abercrombie.

      On June 2, 2008, the state trial court held a hearing on Viers’s motion for

new trial. As to Viers’s first claim of ineffective assistance, attorney Powell

testified that he did not object to the above “opinion” statement by Dr. Aldridge

because he believed that it was admissible testimony and that an objection would

be frivolous.

      As to Viers’s ineffective assistance claim based on HV’s hearsay statements,

attorney Powell testified that he did not move to exclude the statements or

otherwise object because he believed that the statements were admissible under

Georgia’s Child Hearsay statute. In particular, Powell believed that the statements

had sufficient “indicia of reliability,” as required by that statute, to be admitted and

that an attempt to exclude the statements would not be successful. Powell “heavily

based” this conclusion on the Child Hearsay statute and “the fact that there’s not

much case law out there where the statements are thrown out because of indicia of

reliability. There are a few. But it seems to be a fairly rare experience.”

      In addition, attorney Powell testified that he developed a strategy of

attacking the statements directly to the jury through Dr. Stark’s testimony and his

closing argument. Powell decided to highlight to the jury that HV was “so young”


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and that it took “repeated” sessions with Dr. Aldridge before she identified Viers

as the cause of the “boo-boo” in her vaginal area.

      On July 22, 2008, the state trial court summarily denied Viers’s counseled

motions for new trial. On August 19, 2008, Viers’s counsel filed a notice of

appeal. On March 26, 2009, after granting Viers’s motion to proceed pro se on

appeal, the state trial court again denied Viers’s motion for new trial, stating that

its denial would facilitate Viers’s right of review on appeal and establish a proper

record.

      Also on March 26, 2009, Viers filed pro se a “Brief in Support of Amended

Motion for New Trial.” Subsequently, Viers filed a motion for reconsideration in

light of his pro se brief. Viers pro se reiterated the ineffective assistance claims

already raised in his counseled motion-for-new-trial proceedings but also expanded

on the claim that Powell rendered ineffective assistance in failing to object to

improper opinion testimony of Dr. Aldridge. Viers listed all five of the statements

identified above as objectionable. 3

      The state trial court denied Viers’s motion for reconsideration, and Viers

filed an amended notice of appeal.




      3
          See discussion supra Part I.A.
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D.     Direct Appeal to the Georgia Court of Appeals

       Proceeding pro se on appeal, Viers raised the two ineffective assistance

claims litigated before the state trial court. 4 As to the issues concerning Dr.

Aldridge’s allegedly improper opinion testimony, Viers asserted ineffective

assistance based on all five of the supposedly objectionable statements identified in

his pro se brief filed in the state trial court following the denial of his motion for

new trial.

       On March 8, 2010, the Georgia Court of Appeals affirmed. Viers v. State,

303 Ga. App. 387, 693 S.E.2d 526 (Ct. App. 2010). The Georgia Court of Appeals

correctly noted that Viers’s claims of ineffective counsel were governed by the

two-prong standard in Strickland v. Washington. Id. at 391, 693 S.E.2d at 530-31

(citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984) (requiring

a petitioner alleging ineffective counsel to show both deficient performance and

prejudice)). At the outset, the Georgia Court of Appeals indicated that it would

address each of the “specific [ineffective assistance] arguments” made by Viers

“separately.” Id. at 391, 693 S.E.2d at 531.

       First, as to Dr. Aldridge’s “ultimate issue” opinion testimony, the Georgia

Court of Appeals noted, inter alia, that Viers contended that trial counsel should



       4
        Although handwritten, we note that Viers’s brief before the Georgia Court of Appeals
was neat, coherent, and clearly organized.
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have objected to Dr. Aldridge’s testimony that she “had indicated that it was most

likely that [HV] was physically abused by her mother and her father.” Id. at 392,

693 S.E.2d at 531. The Georgia court concluded that Viers failed to show deficient

performance:

      We disagree with Viers’s characterization of Dr. Aldridge’s
      testimony. When read in context with the question posed by Viers’s
      counsel, it is clear that Dr. Aldridge was not expressing an opinion
      regarding whether the abuse occurred, but instead explaining that HV
      had accused both parents of abuse, as opposed to merely her father.

Id. The Georgia court also concluded that Viers failed to show prejudice:

      Nevertheless, pretermitting whether Dr. Aldridge’s response to
      questioning constituted a comment on the ultimate issue in the case
      and whether trial counsel’s decision not to object thereto constituted
      ineffective assistance of counsel, it does not require reversal because
      Viers has failed to establish that the testimony so prejudiced his
      defense as to affect the outcome of his trial. We are not persuaded
      that Dr. Aldridge’s response was so significant that there is a
      reasonable probability that the outcome of the trial would have been
      different if counsel had objected thereto, especially in light of the
      physicians’ testimony regarding HV’s injuries, the inconsistencies in
      Viers’ various versions of events, the blood found in the car seat, and
      the testimony and photographs—which the jury viewed—regarding
      the bruises and lacerations on HV.

Id. at 392, 693 S.E.2d at 531 (alteration adopted, quotation and footnote omitted).

      Second, as to Dr. Aldridge’s and Abercrombie’s testimonies recounting

HV’s out-of-court statements, the Georgia Court of Appeals held that Viers failed

to show deficient performance. Id. at 393-94, 693 S.E.2d at 532-33. The Georgia

court reasoned that, “[p]retermitting whether the testimony was admissible, . . .


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[c]learly, trial counsel made a strategic decision to attack the reliability of HV’s

statements during closing argument and with the testimony of Dr. Stark criticizing

Dr. Aldridge’s interview techniques.” Id. at 394, 693 S.E.2d at 532. The Georgia

Court of Appeals did not reach the prejudice prong. See id. at 394, 693 S.E.2d at

532-33. The Georgia court also denied Viers’s motion to reconsider its rulings.

E.    Federal Habeas Proceedings

      On March 3, 2011, Viers filed the instant § 2254 habeas petition in the

district court. Viers’s petition claimed (1) trial counsel Powell rendered ineffective

assistance by failing to object to Dr. Aldridge’s opinion testimony and the

recounting of HV’s out-of-court statements to Dr. Aldridge and Abercrombie; and

(2) the trial court violated his Due Process and Confrontation Clause rights by

allowing the testimony and statements. The district court denied the § 2254

petition, and this appeal followed.

      This Court granted Viers a certificate of appealability (“COA”) on these

issues and counsel to brief them:

      (1) Whether Mr. Viers’s trial counsel rendered ineffective assistance
      by failing to object to the opinion testimony of Dr. Nancy Aldridge;

      (2) Whether Mr. Viers’s trial counsel rendered ineffective assistance
      by failing to object to the admission of [HV’s] out-of-court
      statements;

      (3) Whether Mr. Viers has established cause and prejudice for failing
      to raise his objections to the testimony of Dr. Aldridge and the out-of-
      court statements of [HV]; and
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      (4) If so, whether Mr. Viers’s constitutional rights were violated by
      the admission of Dr. Aldridge’s testimony and the out-of-court
      statements of [HV].

Below, we outline the federal habeas law applicable to Viers’s claims. We

then discuss the first two issues separately and the final two issues jointly.

                             II. AEDPA DEFERENCE

      Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective

Death Penalty Act (“AEDPA”), federal courts are precluded from granting habeas

relief on claims that were previously “adjudicated on the merits” in state court

unless the adjudication:

      (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).

      When a state court decision summarily rejects without discussion all the

claims raised by a defendant, including a federal claim subsequently pressed in

federal court, the federal habeas court must presume, subject to rebuttal, that the

federal claim was adjudicated on the merits. Harrington v. Richter, 562 U.S. 86,

97-100, 131 S. Ct. 770, 783-85 (2011). And “[w]here a state court’s decision is

unaccompanied by an explanation, the habeas petitioner’s burden still must be met
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by showing there was no reasonable basis for the state court to deny relief.” Id. at

98, 131 S. Ct. at 784. This presumption also applies, subject to rebuttal, to cases in

which the state court discusses some of the defendant’s claims but “rejects a

federal claim without expressly addressing that claim.” Johnson v. Williams, 568

U.S. ___, ___, 133 S. Ct. 1088, 1096 (2013). The Johnson “Court observed that

there are good reasons why state courts do not address every single argument made

by a defendant, including ‘instances in which a state court may simply regard a

claim as too insubstantial to merit discussion.’” Lee v. Comm’r, Alabama Dep’t of

Corr., 726 F.3d 1172, 1212 (11th Cir. 2013), cert. denied sub nom. Lee v. Thomas,

134 S. Ct. 1542 (2014) (quoting Johnson, 568 U.S. at ___, 133 S. Ct. at 1095).

      However, when the evidence “leads very clearly to the conclusion that a

federal claim was inadvertently overlooked in state court,” the Supreme Court in

Johnson held that § 2254(d) deference does not apply. 568 U.S. at ___, 133 S.

Ct. at 1097. Where it is unclear whether AEDPA deference applies, “[c]ourts can .

. . deny writs of habeas corpus under § 2254 by engaging in de novo review . . .

because a habeas petitioner will not be entitled to a writ of habeas corpus if his or

her claim is rejected on de novo review.” Berghuis v. Thompkins, 560 U.S. 370,

390, 130 S. Ct. 2250, 2265 (2010).

      The phrase “contrary to” means that the state court decision contradicts the

United States Supreme Court on a settled question of law or holds differently than


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did the Supreme Court on a set of materially indistinguishable facts. Lockyer v.

Andrade, 538 U.S. 63, 73, 123 S. Ct. 1166, 1173 (2003). The pivotal question in

most federal habeas cases is whether the state court’s application of clearly

established federal law was unreasonable. See Harrington, 562 U.S. at 101, 131 S.

Ct. at 785. “[A]n unreasonable application of federal law is different from an

incorrect application of federal law,” Williams v. Taylor, 529 U.S. 362, 410, 120 S.

Ct. 1495, 1522 (2000); indeed, “even a strong case for relief does not mean the

state court’s contrary conclusion was unreasonable,” Harrington, 562 U.S. at 102,

131 S. Ct. at 786. We may issue a writ of habeas corpus only when “the state

court’s ruling on the claim being presented in federal court was so lacking in

justification that there was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.” Id. at 103, 131 S. Ct. at

786-87. As long as “some fairminded jurists could agree with the state court’s

decision, although others might disagree, federal habeas relief must be denied.”

Loggins v. Thomas, 654 F.3d 1204, 1220 (11th Cir. 2011).

      As the Supreme Court recently reiterated, “a state-court factual

determination is not unreasonable merely because the federal habeas court would

have reached a different conclusion in the first instance.” Burt v. Titlow, 571 U.S.

___, ___, 134 S. Ct. 10, 15 (2013) (quotation and citations omitted). “[E]ven if

reasonable minds reviewing the record might disagree about the [fact] finding in


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question, on habeas review that does not suffice to supersede the [state] trial

court’s determination.” Wood v. Allen, 558 U.S. 290, 301, 130 S. Ct. 841, 849

(2010) (quoting Rice v. Collins, 546 U.S. 333, 341-42, 126 S. Ct. 969, 976 (2006))

(alterations omitted).

      This “highly deferential standard” demands that “[t]he petitioner carries the

burden of proof,” Cullen v. Pinholster, 563 U.S. ___, ___, 131 S. Ct. 1388, 1398

(2011) (quotations omitted), and “that state-court decisions be given the benefit of

the doubt,” Woodford v. Visciotti, 537 U.S. 19, 24, 123 S. Ct. 357, 360 (2002).

This standard is “doubly deferential” when a claim of ineffective assistance is

evaluated under the § 2254(d)(1) standard. Knowles v. Mirzayance, 556 U.S. 111,

123, 129 S. Ct. 1411, 1420 (2009).

                III. INEFFECTIVE ASSISTANCE OF COUNSEL

      The Sixth Amendment to the United States Constitution provides that “[i]n

all criminal prosecutions, the accused shall enjoy the right . . . to have the

Assistance of Counsel for his defence.” U.S. Const. amend. VI. Under Strickland,

to establish constitutionally ineffective counsel, a petitioner must show both

(1) that his attorney’s performance was deficient and (2) that the deficient

performance prejudiced the defense. Wiggins v. Smith, 539 U.S. 510, 521, 123 S.

Ct. 2527, 2535 (2003) (discussing Strickland); Strickland, 466 U.S. at 687, 104 S.

Ct. at 2064.


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      The Strickland performance standard is objectively reasonable attorney

conduct under prevailing professional norms. Wiggins, 539 U.S. at 521, 123 S. Ct.

at 2535; Strickland, 466 U.S. at 688, 104 S. Ct. at 2065 (“The proper measure of

attorney performance remains simply reasonableness under prevailing professional

norms.”). Scrutiny of counsel’s performance is highly deferential, and a strong

presumption exists that counsel’s performance fell within the range of reasonable

professional assistance. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.

      The petitioner must show that no reasonable counsel would have taken the

action that his counsel did take. See Rogers v. Zant, 13 F.3d 384, 386 (11th Cir.

1994). Counsel is not deficient so long as the particular approach taken could be

considered sound strategy. Chandler v. United States, 218 F.3d 1305, 1314 (11th

Cir. 2000) (en banc). When assessing an attorney’s decisions, we must make

“every effort . . . to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.

Additionally, counsel cannot be deemed ineffective for failing to anticipate a

change in the law. Spaziano v. Singletary, 36 F.3d 1028, 1039 (11th Cir. 1994).

      For prejudice, the standard is whether “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, 104 S. Ct. at 2068. To satisfy the


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prejudice prong, the “likelihood of a different result must be substantial, not just

conceivable.” Harrington, 562 U.S. at 112, 131 S. Ct. at 792. “Counsel’s errors

must be so serious as to deprive the defendant of a fair trial, a trial whose result is

reliable.” Id. at 104, 131 S. Ct. at 787-88 (quotation omitted).

                       IV. OPINION TESTIMONY CLAIM

      On appeal, petitioner Viers, through counsel, argues that the Georgia Court

of Appeals unreasonably applied Strickland in rejecting his claim that trial attorney

Powell rendered ineffective assistance in failing to object to Dr. Aldridge’s

statement that it was most likely that HV was physically abused by both her

mother and father.

      Here, Viers has not shown that the Georgia Court of Appeals’s rejection of

this claim was contrary to, or an unreasonable application of, Strickland, or

involved an unreasonable determination of the facts. See 28 U.S.C. § 2254(d).

The Georgia Court of Appeals’s interpretation of the statement—that Dr. Aldridge

was explaining that she had indicated in her report that HV accused both parents of

abuse, not merely Viers—was not unreasonable. As recounted above, defense

counsel asked Dr. Aldridge whether her conclusion was that the only person HV

had accused was her father. Although perhaps not precisely phrased,

Dr. Aldridge’s response was that, “up another sentence” in the report, she “had

indicated” that HV accused both parents of abuse. Thus, Dr. Aldridge was


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testifying as to whom HV accused of abusing her—not giving a conclusion about

who actually abused her.

      Therefore, this testimony did not impermissibly go the ultimate issue of who

abused HV. See McFolley v. State, 289 Ga. 890, 892, 717 S.E.2d 199, 201 (2011)

(holding that expert testimony that the victim’s injuries were caused by abuse, not

an accidental fall, was not an opinion on the ultimate issue, which was the identity

of the person responsible for the abuse); Collum v. State, 281 Ga. 719, 722, 642

S.E.2d 640, 644 (2007) (holding that trial court did not err in denying motion for

mistrial based on expert’s testimony that victim was beaten to death because “the

ultimate issue was the identity of the person or persons responsible for the

beating”). Fairminded jurists could disagree on the correctness of the Georgia

Court of Appeals’s decision, as Dr. Aldridge’s statement was not clearly

objectionable or excludable under Georgia law. See Harrington, 562 U.S. at 105,

131 S. Ct. at 788; Loggins, 654 F.3d at 1220.

      Viers also asserts that the Georgia Court of Appeals overlooked his

remaining claims of ineffective assistance based on Dr. Aldridge’s improper

opinion testimony, and thus these claims should receive de novo review.

      Having reviewed the record and the Georgia Court of Appeals’s decision,

we are not led “very clearly” to the conclusion that the court inadvertently

overlooked Viers’s additional claims of improper opinion testimony. See Johnson,


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568 U.S. at       , 133 S. Ct. at 1097.5 Notably, when moving for reconsideration,

Viers did not claim that the Georgia Court of Appeals had overlooked these claims.

See id. at ___, 133 S. Ct. at 1099 (reasoning that petitioner, who “presumably

knows her case better than anyone else,” did not petition the state appellate court

for rehearing on grounds that the court failed to adjudicate her federal claim on the

merits, such that an oversight seemed “most improbable”). Rather, Viers’s motion

to reconsider distinguished between claims that he contended the Georgia Court of

Appeals had “overlooked” and those he wished the court to “reconsider,” and he

specifically requested reconsideration of all of his claims regarding Dr. Aldridge’s

supposedly improper opinion testimony.

       Thus, giving deference to the Georgia Court of Appeals’s merits

adjudication of the ineffective assistance claims based on failure to object to

improper opinion testimony, we cannot say that the Georgia Court of Appeals

unreasonably denied relief on these ineffective-counsel claims. Viers points to Dr.

Aldridge’s testimony that HV could show Dr. Aldridge what “happened to the doll

because it happened to [HV]”; that HV had “definite medical findings” and that her

demonstrations on the dolls were not “just a coincidence”; that HV was

       5
         Viers did not raise these claims in the state trial court prior to the denial of his motion for
new trial. However, when he raised the claims in his appellate brief, the Georgia Court of
Appeals—“the last state court rendering a judgment in the case”—did not “clearly and
expressly” deny relief on these claims based “on a state procedural bar.” Harris v. Reed, 489
U.S. 255, 263, 109 S. Ct. 1038, 1043 (1989) (quotations omitted). Thus, procedural default does
not bar consideration of these claims, and we must decide whether the Georgia Court of Appeals
silently adjudicated the claims on the merits or overlooked them.
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traumatized and concerned “it might happen again”; and that HV’s behavior was

“consistent” with having been abused.

      None of Dr. Aldridge’s statements was clearly objectionable under Georgia

law because none went to the ultimate issue of who abused HV. See McFolley,

289 Ga. at 892, 717 S.E.2d at 201. Moreover, in child sex abuse cases, Georgia

courts have distinguished between expert testimony that the victim had in fact been

sexually abused and testimony, like in this case, that a victim’s “physical

examination and related behavior were consistent with sexual abuse.” See, e.g.,

Odom v. State, 243 Ga. App. 227, 229, 531 S.E.2d 207, 210 (Ct. App. 2000)

(“[The expert’s] testimony was a permissible expression of the expert’s opinion

based on factors beyond the ken of the average juror. The jury was permitted to

draw for itself the final conclusion as to whether the victim had, in fact, been

sexually abused.” (footnote omitted)). Nor did Dr. Aldridge’s testimony

“improperly bolster” HV’s credibility. See id. at 227-28, 531 S.Ed.2d at 208-09

(“[T]here is absolutely nothing wrong with expert opinion testimony that bolster’s

[sic] the credibility of the indicted allegations of sexual abuse, e.g., ‘the victim’s

physical examination showed injury consistent with sexual abuse,’ or ‘the victim’s

psychological evaluation was consistent with sexual abuse.’ . . . Since the State is

required to prove its case, expert opinion testimony often becomes necessary,

especially in instances of the abuse of very young children.” (emphasis added)).


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       As this testimony was not automatically, or even clearly, entitled to

exclusion under Georgia law, a reasonable attorney in Powell’s position could have

declined to object based on the belief that (1) the objections would be

unsuccessful, and (2) unsuccessful objections might overemphasize the statements

to the jury by drawing attention to the statements as particularly damaging to the

defense. See Bates v. Sec’y, Florida Dep’t of Corr., 768 F.3d 1278, 1299 (11th

Cir. 2014) (noting that a potentially unmeritorious objection “might end up

backfiring by highlighting testimony the jury might have otherwise ignored

completely”). Attorney Powell further reasonably could have concluded that the

most prudent option would be to challenge Dr. Aldridge’s testimony as a whole by

attacking her methodology and objectivity during cross-examination, through Dr.

Stark’s testimony, and during closing argument. Thus, the Georgia Court of

Appeals reasonably could have rejected Viers’s ineffective assistance claim as to

this testimony based on the performance prong.6

       Additionally, even assuming deficient performance, we cannot say that the

Georgia Court of Appeals unreasonably concluded that Viers failed to show

prejudice in light of the overwhelming evidence against him. See Viers, 303 Ga.

App. at 392, 693 S.E.2d at 531. This evidence included: Viers’s shifting and
       6
         Alternatively, even assuming that the Georgia Court of Appeals overlooked Viers’s
remaining ineffective assistance claims based on Dr. Aldridge’s opinion testimony, we conclude
that these claims do not warrant relief when reviewed de novo. See Thompkins, 560 U.S. at 390,
130 S. Ct. at 2265 (“Courts can . . . deny writs of habeas corpus under § 2254 by engaging in de
novo review when it is unclear whether AEDPA deference applies . . . .”).
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implausible accounts of how HV sustained her injuries; physical evidence and

expert testimony regarding the extent and nature of HV’s injuries that refuted

Viers’s explanations of what happened to HV; wounds consistent with repeated

penetration of HV’s anus; and testimony about HV’s fear of men and of soiling her

diaper. Even if all of Dr. Aldridge’s challenged testimony were excluded, the

Georgia Court of Appeals did not unreasonably apply Strickland or make an

unreasonable determination of fact in finding no reasonable probability of a

different result at trial. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

                   V. HV’S OUT-OF-COURT STATEMENTS

      On appeal, petitioner Viers, through counsel, argues that trial attorney

Powell rendered ineffective assistance in failing to object to the admission of HV’s

out-of-court statements through the testimony of Dr. Aldridge and HV’s foster

father Abercrombie. Viers contends that the Georgia Court of Appeals

unreasonably denied relief on this claim because the statements (1) bore none of

the indicia of reliability required by the Georgia Child Hearsay statute and (2)

violated his Confrontation Clause rights. We address the Georgia Child Hearsay

statute and then the Confrontation Clause.

A.    Georgia’s Child Hearsay Statute

      At the time of Viers’s 2002 trial, Georgia’s Child Hearsay statute, O.C.G.A.

§ 24-3-16, allowed a victim child’s statements to another person to be admitted if


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the child was available to testify and if the court found sufficient indicia of

reliability:

       A statement made by a child under the age of 14 years describing any
       act of sexual contact or physical abuse performed with or on the child
       by another or performed with or on another in the presence of the
       child is admissible in evidence by the testimony of the person or
       persons to whom made if the child is available to testify in the
       proceedings and the court finds that the circumstances of the
       statement provide sufficient indicia of reliability.

Ga. Code Ann. § 24-3-16.7

       Georgia courts have explained that “indicia of reliability” must spring from

the circumstances of the statement. Gregg v. State, 201 Ga. App. 238, 240, 411

S.E.2d 65, 68 (Ct. App. 1991). The factors a court may consider include but are

not limited to:

       (1) the atmosphere and circumstances under which the statement was
       made (including the time, the place, and the people present thereat);
       (2) the spontaneity of the child’s statement to the persons present; (3)
       the child’s age; (4) the child’s general demeanor; (5) the child’s
       condition (physical or emotional); (6) the presence or absence of
       threats or promise of benefits; (7) the presence or absence of drugs or
       alcohol; (8) the child’s general credibility; (9) the presence or absence
       of any coaching by parents or other third parties before or at the time
       of the child’s statement, and the type of coaching and circumstances
       surrounding the same; and, the nature of the child’s statement and
       type of language used therein; and (10) the consistency between
       repeated out-of-court statements by the child.



       7
        This version of the Georgia Child Hearsay statute subsequently was repealed, effective
January 1, 2013. Irving v. State, 320 Ga. App. 844, 850 & n.18, 740 S.E.2d 778, 784 & n.18 (Ct.
App. 2013).
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Id. Georgia courts have cautioned that “[t]hese factors are to be applied neither in

mechanical nor mathematical fashion, but in that manner best calculated to

facilitate determination of the existence or absence of the requisite degree of

trustworthiness.” Id. Additionally, “the fact that the statement is made days,

weeks, or even several months after the alleged incident, [does not] in and of itself

make the statement unreliable.” Id.

      Here, we cannot say that the Georgia Court of Appeals—in concluding that

Powell did not render deficient performance by failing to object to HV’s out-of-

court statements on state-law grounds—reached a result that was contrary to, or

involved an unreasonable application of, clearly established Supreme Court

precedent, or was based on an unreasonable determination of the facts in light of

the evidence. See 28 U.S.C. § 2254(d). Put simply, the Georgia Court of

Appeals’s ruling on this claim was not “so lacking in justification that there was an

error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Harrington, 562 U.S. at 103, 131 S. Ct. at 786-87.

      While Viers contends that trial attorney Powell should have objected to the

hearsay statements based on Georgia’s Child Hearsay statute, § 24-3-16, the

Georgia Court of Appeals reasonably concluded that attorney Powell instead made

a sound strategic decision to attack the reliability of HV’s statements with the

testimony of a highly qualified expert, Dr. Stark, criticizing Dr. Aldridge’s


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interview techniques, and then later in his closing argument. Attorney Powell

reasonably settled on this strategy given that a motion in limine was unlikely to be

successful. See Ladd v. Jones, 864 F.2d 108, 110 (11th Cir. 1989) (holding that

where “claims were meritless, it was clearly not ineffective for counsel not to

pursue them”).

      Viers has not shown that no reasonable attorney would have made this

decision. See Rogers, 13 F.3d at 386 (“Even if many reasonable lawyers would

not have done as defense counsel did at trial, no relief can be granted on

ineffectiveness grounds unless it is shown that no reasonable lawyer, in the

circumstances, would have done so.”). For starters, attorney Powell’s testimony

indicated that motions challenging § 24-3-16 hearsay testimony are generally very

difficult to win. As Powell put it, “there’s not much case law out there where the

statements are thrown out because of indicia of reliability. There are a few. But it

seems to be a fairly rare experience.”

      Indeed, the vast majority of Georgia appellate cases examining the

admissibility of § 24-3-16 hearsay statements, even by very young children, find

that the testimony was sufficiently reliable and properly admitted. See Irving v.

State, 320 Ga. App. 844, 845, 850-51, 740 S.Ed.2d 778, 781, 784-85 (Ct. App.

2013) (three-year-old); Whorton v. State, 321 Ga. App. 335, 335, 340-41, 741

S.E.2d 653, 655, 658-59 (Ct. App. 2013) (four-year-old); Estrada v. State, 319 Ga.


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App. 762, 764-65, 738 S.E.2d 344, 346 (Ct. App. 2013) (six-year-old); Herrington

v. State, 241 Ga. App. 326, 327, 329, 527 S.E.2d 33, 34-35 (Ct. App. 1999) (five-

year-old); Heard v. State, 221 Ga. App. 166, 166-67, 471 S.E.2d 22, 22-23 (Ct.

App. 1996) (seven-year-old); In re B.H., 190 Ga. App. 131, 131, 133, 378 S.Ed.2d

175, 176-77 (Ct. App. 1989) (two-and-one-half-year-old); Westbrook v. State, 186

Ga. App. 493, 495, 368 S.E.2d 131, 134 (Ct. App. 1988) (five-year-old); Sanders

v. State, 182 Ga. App. 581, 584, 356 S.E.2d. 537, 540 (Ct. App. 1987) (four-year-

old); Newberry v. State, 184 Ga. App. 356, 356-57, 361 S.E.2d 499, 500-01 (Ct.

App. 1987) (four-year-old); but see Ferreri v. State, 267 Ga. App. 811, 812, 814,

600 S.Ed.2d 793, 793, 795 (Ct. App. 2004) (between ages of one-and-one-half and

three-and-one-half years old); Rolader v. State, 202 Ga. App. 134, 140-41, 413

S.E.2d 752, 757-58 (Ct. App. 1991) (four-and-one-half-year-old).

      In addition, attorney Powell did not unreasonably determine that the hearsay

statements in this case had sufficient “indicia of reliability” to be admissible under

§ 24-3-16. HV’s statements bore many of the markers of reliability that Georgia

courts have found to be significant in upholding the admissibility of hearsay under

§ 24-3-16: (1) HV’s statements to Dr. Aldridge occurred in a controlled setting

with a forensic interviewer, not a law enforcement officer, see Whorton, 321 Ga.

App. at 341, 741 S.E.2d at 659; Estrada, 319 Ga. App. at 764, 738 S.Ed.2d at 346;

(2) Dr. Aldridge did not reward, or otherwise positively reinforce, HV’s answers,


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see Whorton, 321 Ga. App. at 341, 741 S.E.2d at 659; (3) HV’s statements to her

foster father, Abercrombie, were spontaneous, see Newberry, 184 Ga. App. at 357,

361 S.E.2d at 501; and (4) there is no indication that HV was intoxicated or under

the influence of any substances at the time of her statements to Dr. Aldridge and

Abercrombie, see Estrada, 319 Ga. App. at 764, 738 S.Ed.2d at 346.

      Although Viers stresses HV’s young age, Georgia courts have upheld the

admission of hearsay statements by children this young. See, e.g. In re BH, 190

Ga. App. at 131, 133, 378 S.Ed.2d at 176, 177 (two-and-one-half-year-old); Irving,

320 Ga. App. at 845, 850-51, 740 S.Ed.2d at 778, 784-85 (three-year-old). And

the child’s age is just one among many factors that bear on reliability under

Georgia law. See Gregg, 201 Ga. App. at 240, 411 S.E.2d at 68. Likewise, child

hearsay statements are not automatically rendered unreliable just because they

occurred months after the events in question, see id., or because they occurred over

the course of repeated sessions with a forensic interviewer, see, e.g., Westbrook,

186 Ga. App. at 495-96, 368 S.E.2d at 134 (upholding admissibility of five-year-

old victim’s hearsay statements that occurred over course of eleven counseling

sessions with Dr. Aldridge).

      Viers also points out a number of factors arguably showing the unreliability

of the statements, but this ignores the fact that we must view the evidence in the

light most favorable to trial counsel’s reasonable strategy without the distorting


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effects of hindsight. Cf. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.

Additionally, attorney Powell could reasonably have concluded that these factors

(such as inconsistencies in HV’s statements) were issues that he could highlight to

the jury—as, in fact, he did—and not grounds for having the evidence excluded

under the statute. See Herrington, 241 Ga. App. at 329, 527 S.E.2d at 35

(“Because there were sufficient indicia of reliability, any alleged inconsistencies in

the statements were a matter for the jury’s consideration in weighing the evidence,

not a matter of admissibility.”).

      Finally, we find unpersuasive Viers’s reliance on Ferreri and Rolader, two

cases where Georgia trial courts were found to have committed reversible error in

admitting child hearsay statements. Although Ferreri and Rolader did involve

young children under the age of five and arguably share some characteristics with

this case, Ferreri and Rolader are materially and critically distinguishable from this

case on at least one important fact. In both those cases, there was little to no

physical evidence corroborating the victims’ hearsay statements implicating the

defendants. In Ferreri, “[m]ultiple medical examinations of the victim found no

physical evidence of molestation.” 267 Ga. App. at 812, 600 S.Ed.2d at 793. And

in Rolader, a physical examination of the child’s vaginal area showed a “very red”

labia but no “tearing” or “gapping,” and the examining physician stated that the




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redness “could have been caused by the use of a bubble bath or harsh soaps or by

contact with sand and dirt.” 202 Ga. App. at 136, 413 S.E.2d at 754.

      Here, in contrast, HV’s statements were corroborated by the medical

evidence of penetration of her anus and her badly lacerated perineum. Her injuries

were so severe as to require corrective surgery by a pediatric surgeon and were

consistent with her statements describing how Viers hurt her. Cf. Irving, 320 Ga.

App. at 851, 740 S.Ed.2d at 785 (noting that “the child specified that she was

struck with a belt and a stick, which is consistent with the injuries she received”).

Thus, applying Georgia law, the Georgia Court of Appeals reasonably could have

concluded that trial counsel Powell was not deficient for failing to object to HV’s

hearsay statements even in light of Ferreri and Rolader.

B.    The Confrontation Clause

      As to Viers’s contention that attorney Powell should have objected to HV’s

out-of-court statements on Confrontation Clause grounds, we likewise conclude

that the Georgia Court of Appeals reasonably determined that Powell did not

perform deficiently.

      The Sixth Amendment’s Confrontation Clause provides that a criminal

defendant has the right to be confronted with the witnesses against him. U.S.

Const. amend. VI. At the time of Viers’s 2002 trial, the Supreme Court had held,

in Ohio v. Roberts, that when a hearsay declarant is not present for cross-


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examination at trial, an out-of-court statement is admissible if (1) the government

shows that the declarant is unavailable, and (2) the statement bears particularized

guarantees of trustworthiness or falls within a firmly rooted hearsay exception.

448 U.S. 56, 66, 100 S. Ct. 2531, 2539 (1980).

      Subsequently, in Idaho v. Wright, the Supreme Court considered a

Confrontation Clause claim based on hearsay statements admitted pursuant to

Idaho’s statutory residual hearsay exception, which operated to allow the

admission of out-of-court statements of a child victim of sexual abuse. 497 U.S.

805, 817, 110 S. Ct. 3139, 3147 (1990). The Supreme Court identified a non-

exhaustive list of factors as to whether a child victim’s hearsay statements bear

“particularized guarantees of trustworthiness”—largely reflecting the same factors

identified by the Georgia courts—and explained that courts have considerable

leeway in their consideration of appropriate factors. See id. at 821-22, 110 S. Ct.

at 3150.

      After Viers’s 2002 trial, the Supreme Court overruled Ohio v. Roberts and

held that testimonial out-of-court statements are barred under the Confrontation

Clause unless the declarant is unavailable and the defendant had an opportunity to

cross-examine the declarant, regardless of the statement’s reliability. Crawford v.

Washington, 541 U.S. 36, 68-69, 124 S. Ct. 1354, 1374 (2004). The Supreme

Court reasoned that “[w]here testimonial statements are at issue, the only indicium


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of reliability sufficient to satisfy constitutional demands is the one the Constitution

actually prescribes: confrontation.” Id.

       Here, Viers argues that Powell should have objected to the out-of-court

statements based on Roberts and Wright because the statements lacked

“particularized guarantees of trustworthiness.” However, for the same reasons we

discussed above as to why the statements bore sufficient indicia of reliability, Viers

has not demonstrated that the statements lacked “particularized guarantees of

trustworthiness.” See Wright, 497 U.S. at 821-22, 110 S. Ct. at 3150. 8

       On appeal, Viers also suggests that a Confrontation Clause violation

occurred because, pursuant to the Georgia Child Hearsay statute, HV necessarily

was “available to testify,” O.C.G.A. § 24-3-16, while under Roberts “the proponent

of an out-of-court statement [was required to] show the declarant’s unavailability

. . . .” However, Viers misunderstands Roberts, which required the unavailability

of a hearsay declarant only if the declarant was not present for cross-examination

at trial. See Roberts, 448 U.S. at 66, 100 S. Ct at 2539. In this case, although HV

did not testify, the record indicates, and Viers essentially concedes, that she was

present and available for cross-examination at his trial.

       8
          Trial attorney Powell reasonably could have found that HV’s out-of-court statements
bore “particularized guarantees of trustworthiness” even setting aside the fact that they were
corroborated by the physical evidence in this case, a factor that is not relevant under the
Confrontation Clause. See Wright, 497 U.S. at 822, 110 S. Ct. at 3150 (“To be admissible under
the Confrontation Clause, hearsay evidence used to convict a defendant must possess indicia of
reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial.”).

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      Prior to Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527

(2009), Georgia courts had held that the Confrontation Clause was satisfied where

the hearsay declarant was available for cross-examination at trial even if she did

not testify. See, e.g., Starr v. State, 269 Ga. App. 466, 469, 604 S.E.2d 297, 299

(Ct. App. 2004), overruled by Hatley v. State, 290 Ga. 480, 722 S.E.2d 67 (2012).

Thus, Viers has failed to show that, at the time of trial, the admission of HV’s out-

of-court statements ran afoul of the Confrontation Clause or that attorney Powell

should have objected on that ground.

      In addition, attorney Powell’s performance was not deficient for failing to

anticipate that the Supreme Court would overrule Roberts in Crawford. See

Spaziano, 36 F.3d at 1039.

                          VI. PROCEDURAL DEFAULT

      In his § 2254 petition in the district court, Viers alleged Due Process and

Confrontation Clause claims, independent from his ineffective assistance claims,

based on the admission of Dr. Aldridge’s opinion testimony and HV’s out-of-court

statements. In the district court, the State responded that Viers had procedurally

defaulted these claims by failing to raise them in the state courts. In its order, the

district court found the claims to be procedurally defaulted. The district court also

determined that Viers had not shown cause for his default on grounds that:

(1) Viers “[did] not attempt to assert a fundamental miscarriage of justice, i.e., his


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actual innocence, to excuse his procedural default”; and (2) “because [Viers’s]

ineffective assistance of trial counsel claims fail, they may not serve as cause to

excuse his procedural default of the underlying substantive claims.”

       As an initial matter, we decline to address Viers’s arguments that these

claims are not in fact procedurally defaulted, as the COA is limited to the issue of

whether Viers has established cause and prejudice to overcome his default. See

Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998). Based on the

record, we agree with the district court that Viers has failed to show cause for

failing to raise these claims in the state courts. See Henderson v. Campbell, 353

F.3d 880, 892 (11th Cir. 2003). Even if we liberally construe Viers’s arguments in

the district court as alleging ineffective assistance as the cause of his procedural

default, Viers cannot show cause for failure to object at trial—based on attorney

Powell’s ineffective assistance—because, as discussed above, Powell’s failure to

object to HV’s statements and Dr. Aldridge’s opinion testimony did not constitute

ineffective assistance. See Brownlee v. Haley, 306 F.3d 1043, 1066-67 (11th Cir.

2002). 9 Finally, because Viers has failed to establish cause to overcome the

procedural default of these claims, we do not address the merits of the claims.




       9
        We decline to address Viers’s argument on appeal that the state trial court’s improperly
allowing him to proceed pro se in his direct appeal constitutes cause, as Viers failed to raise this
argument in the district court. See Walker v. Jones, 10 F.3d 1569, 1572 (11th Cir. 1994).
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                               VII. CONCLUSION

      For the reasons set forth above, we affirm the district court’s denial of

Viers’s § 2254 petition.

      AFFIRMED.




                                         36
