                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAY 21 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JOSHUA JAKE WHITE,                               No.   18-35562

              Petitioner-Appellee,               D.C. No. 2:16-cv-00323-SB

 v.
                                                 MEMORANDUM*
MARK NOOTH,

              Respondent-Appellant.


                    Appeal from the United States District Court
                             for the District of Oregon
                    Michael H. Simon, District Judge, Presiding

                        Argued and Submitted May 13, 2019
                                 Portland, Oregon

Before: N.R. SMITH, WATFORD, and R. NELSON, Circuit Judges.

      The State appeals the district court’s grant of Joshua White’s petition for

habeas corpus under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C.

§ 1291, and we reverse and remand with instructions to deny White’s petition.

      White has not demonstrated cause to excuse the procedural default



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
stemming from his post-conviction counsel’s failure to assert an ineffective

assistance of trial counsel (IATC) claim based on trial counsel’s failure to object to

testimony that a nurse recommended the victim receive “counseling to deal with

the issue of sexual abuse.”1

      Procedural default bars federal habeas review “unless the prisoner can

demonstrate cause for the default and actual prejudice as a result of the alleged

violation of federal law.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). To

show cause, White must demonstrate that post-conviction counsel “was ineffective

under the standards of Strickland.” Martinez v. Ryan, 566 U.S. 1, 14 (2012) (citing

Strickland v. Washington, 466 U.S. 668 (1984)). In evaluating the performance of

post-conviction counsel, the court must recognize that 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 . . . advocacy.”

Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes, 463 U.S.

745, 751–52 (1983)).




      1
      White concedes that his claim is procedurally defaulted. See Beaty v.
Stewart, 303 F.3d 975, 987 (9th Cir. 2002); Or. Rev. Stat. § 138.550(3).
                                           2
      Here, White has failed to show that post-conviction counsel was ineffective

in failing to raise the IATC claim, as it was reasonable for post-conviction counsel

to conclude that the claim was unlikely to succeed.

      This court has emphasized that trial counsel cannot “be required to

anticipate” a change in the law, “because [counsel’s] conduct must be evaluated for

purposes of the performance standard of Strickland ‘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). At the time of White’s trial, the nurse’s statement was admissible

under binding Oregon appellate caselaw. See State v. Sanchez-Cruz, 33 P.3d 1037,

1045 (Or. Ct. App. 2001); State v. Wilson, 855 P.2d 657, 661 (Or. Ct. App. 1993).

Thus, post-conviction counsel could have reasonably determined that trial counsel

was not required to make a fruitless objection, see Miller v. Keeney, 882 F.2d

1428, 1434–35 (9th Cir. 1989), or to anticipate a subsequent change in the law, see

Lowry, 21 F.3d at 346.2




      2
       Although the district court determined that “it was the prevailing
professional norm, at the time of [White’s] trial, to object . . . to the admissibility
of diagnoses of child sexual abuse absent physical evidence,” such “[p]revailing
norms of practice . . . are guides to determining what is reasonable, but they are
only guides.” See Strickland, 466 U.S. at 688 (emphasis added).
                                            3
      Additionally, because White was convicted in a bench trial, post-conviction

counsel could reasonably “assume that any questionable evidence [was]

disregarded.” State v. Cafarelli, 456 P.2d 999, 1001 (Or. 1969); see also United

States v. Caudle, 48 F.3d 433, 435 (9th Cir. 1995) (“[I]t would be most surprising

if [allegedly improper evidence] had any significance in a bench trial.”).3 Indeed,

there is no indication in the record that the trial court relied on the nurse’s

testimony in reaching its conclusions, and the probative value of the testimony is

questionable. The nurse testified only that she recommended “counseling to deal

with the issue of sexual abuse,” and she ultimately assessed the victim only as

“highly concerning for sexual abuse,” which, as explained by White, means that

the “evaluator does not have enough information to conclude that a child has been

sexually abused.” Accordingly, post-conviction counsel could have reasonably

determined that White’s IATC claim had little likelihood of success and winnowed

it out in favor of those more likely to prevail.


      3
        Oregon’s appellate courts have found the admission of vouching testimony
by an abuse evaluator during a bench trial to be prejudicial on a few occasions. See
State v. Potts, 255 P.3d 614, 615 (Or. Ct. App. 2011) (per curiam); State v. Davilia,
244 P.3d 855, 860 (Or. Ct. App. 2010); State v. Marrington, 73 P.3d 911, 916–17
(Or. 2003). However, post-conviction counsel could have reasonably determined
that those cases are distinguishable, because the trial court here never referred to
the nurse’s medical recommendation or asked the nurse questions about it, and
none of the nurse’s testimony directly addressed the victim’s credibility.
                                            4
REVERSED and REMANDED.




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