                                                                           FILED
                                                                            OCT 26 2015
                           NOT FOR PUBLICATION
                                                                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS

                    UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT

ROBIN LYNN GRESSER,                           No. 14-35412

             Petitioner - Appellant,          D.C. No. 2:12-cv-02073-HZ

 v.                                           MEMORANDUM*
STEVE FRANKE,
Superintendent TRCI,

             Respondent - Appellee.


                   Appeal from the United States District Court
                            for the District of Oregon
                   Marco A. Hernandez, District Judge, Presiding

                      Argued and Submitted October 13, 2015
                                Portland, Oregon

Before: TASHIMA, GILMAN,** and BEA, Circuit Judges.

      Robin Gresser appeals from the district court’s denial of his federal habeas

petition, alleging that his trial counsel provided constitutionally ineffective

assistance. Following a jury trial in an Oregon state court, Gresser was convicted

of first-degree unlawful sexual penetration with a foreign object and first-degree

      *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
        The Honorable Ronald Lee Gilman, Senior Circuit Judge for the United
States Court of Appeals for the Sixth Circuit, sitting by designation.
sexual abuse. The charges stemmed from an incident between Gresser and FHG,

then a 10-year-old girl, during a sleepover at Gresser’s house in July 2003.

      At Gresser’s trial in April 2005, the state called family acquaintances Tara

Frost and Zena Delaney as its first two witnesses. Frost’s testimony contained the

following exchange with the prosecutor:

      Q.      Did [FHG] ever tell you things that sounded outlandish or like
              lies?

      A.      No.

      Q.      Did she ever try to get your attention in ways that were
              negative?

      A.      No, she did not.

Gresser’s trial counsel failed to object.

      During Delaney’s testimony, the following exchange with the prosecutor

transpired:

      Q.      Okay. Now, after [FHG] told you what she did, what did you
              do?

      A.      I called the police, and first I called [FHG]’s mom, and then I
              called the police and told them there’s a little girl here that
              needs to talk to them because I didn’t know what to do. I knew
              this little girl had been – you could tell she was telling the truth.
              I mean she’s – you could just tell.




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Again, Gresser’s trial counsel did not object. Trial counsel’s failure to object to

these portions of Frost’s and Delaney’s testimony forms the basis of Gresser’s

ineffective-assistance-of-counsel claim presented on appeal.

      The state post-conviction court failed to discuss this particular claim,

causing the parties to disagree on whether we should apply a deferential or de novo

standard of review. Because we would reach the same conclusion under either

standard, we will assume, without deciding, that de novo review applies.

      A defendant is denied his Sixth Amendment right to the effective assistance

of counsel when (1) his “counsel’s performance was deficient,” and (2) that

“deficient performance prejudiced the defense.” Strickland v. Washington, 466

U.S. 668, 687 (1984). To demonstrate deficient performance, “the defendant must

show that [his] counsel’s representation fell below an objective standard of

reasonableness.”     Id. at 688.   We evaluate deficient performance against the

backdrop of “a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance,” and we recognize “the wide latitude

counsel must have in making tactical decisions.” Id. at 689.

      Gresser asserts that his trial counsel provided deficient performance by

failing to object when both Delaney and Frost offered testimony that vouched for

FHG’s credibility.     Failing to object to inadmissible evidence can constitute
                                           -3-
deficient performance if “it is reasonable that the trial court would have granted”

the objection. Boyde v. Brown, 404 F.3d 1159, 1173 (9th Cir. 2005) (internal

quotation marks and citation omitted); see also Delgadillo v. Woodford, 527 F.3d

919, 928 (9th Cir. 2008). “[I]n Oregon a witness . . . may not give an opinion on

whether he believes a witness is telling the truth.” State v. Middleton, 657 P.2d

1215, 1221 (Or. 1983).

      With respect to Delaney, her testimony clearly commented on FHG’s

credibility. Delaney opined that “I knew this little girl had been – you could tell

she was telling the truth. I mean she’s – you could just tell.” This is the paradigm

of impermissible vouching testimony under Oregon law. See id. Accordingly, the

trial court almost certainly would have sustained an objection to Delaney’s

testimony. This conclusion, however, does not end our inquiry.

      Because defense counsel possesses wide latitude to make tactical decisions

during trial, Strickland, 466 U.S. at 689, we must determine if any strategic choices

would justify counsel’s failure to object. An affidavit submitted by Gresser’s trial

counsel as part of the post-conviction proceedings indicates that one of the reasons

he chose not to object to Delaney’s vouching testimony was that he “did not want

to highlight that statement for the jury by objecting.”


                                             -4-
      Delaney’s vouching testimony was elicited after the government asked:

“Okay. Now, after [FHG] told you what she did, what did you do?” This question

could not have reasonably given notice that Delaney was about to opine on FHG’s

credibility. Accordingly, the first opportunity for Gresser’s trial counsel to object

would have been after Delaney had uttered her vouching testimony. And whether

to object to damaging testimony at the risk of drawing the jury’s attention to it is a

tactical decision.   Accordingly, the failure to object to Delaney’s vouching

testimony was a valid strategic decision.

      Frost’s testimony is a different story.       Gresser advances a substantial

argument that the failure of his trial counsel to object to the two above-quoted

questions addressed to Frost, which go directly to FHG’s credibility, constituted

deficient performance.     We need not resolve this question, however, because

Gresser is unable to establish prejudice. A defendant is prejudiced by his counsel’s

deficient performance when he “show[s] 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.

      True enough, several factors weigh in favor of a finding of prejudice.

FHG’s credibility was the central issue at trial and, after the sleepover at Gresser’s

house, FHG provided conflicting statements regarding whether Gresser penetrated
                                            -5-
her.   Moreover, Gresser testified that he never molested FHG, and his then-

estranged wife provided alibi testimony. Finally, the jury’s verdict to convict was

not unanimous.

       Other factors, however, strongly weigh against a finding of prejudice. The

sum total of Frost’s reference to FHG’s credibility was contained in five words of

response to two questions during a multi-day trial in which over a dozen witnesses

testified. Because the brief exchange comprised only a passing reference among a

host of other testimony, Frost’s response likely had little impact on the jury’s

overall assessment of FHG’s credibility. This is especially so because the jury had

the opportunity to evaluate directly both FHG’s and Gresser’s credibility during

their live testimony in court. Further, the jury heard FHG’s videotaped interview

with a social worker, which was recorded within several weeks of the abuse, and it

heard from other witnesses as to what FHG had told them.

       The jury therefore had ample opportunity to assess the consistency of FHG’s

statements at trial with those she previously provided to others. Although her

statements to the other witnesses were not completely consistent, there was

consistency regarding a key fact central to the case, i.e., that FHG experienced pain

and bleeding as a result Gresser’s alleged abuse. We therefore conclude that there


                                            -6-
is no reasonable probability that, but for Frost’s vouching testimony, the outcome

of Gresser’s trial would have been different.

      For all of the above reasons, WE AFFIRM.




                                            -7-
