NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0328n.06 No. 11-5735 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

HUGH A NDREW NI CEL Y, Petitioner-Appellant,

v. DAVI D MI L L S, W arde n, Respondent-Appe llee. ) ) ) ) ) ) ) ) ) ) ON AP P E AL FROM THE UNI TED STATES DI STRI CT COU RT FOR THE MI DDL E DI STRI CT OF TEN

NESSEE

BEF ORE: SUTTON, GRI FF I N, and WHI TE, Circuit J udg es. GRI FF I N, Circuit J udg e. Hu gh Ni cely appea ls the di strict court’s denial of hi s petition for a writ of habeas corpus. Be cause the s tate court’s adjudica tion of Nicely ’s i neff ective- assistance -of- counsel claim was not

unrea sonable, we aff

irm. I

. I n 1994, a Tenne ssee jury convicted Hug h Nicely on char g es that he s ex u al l y ab u s ed his minor stepdaug hter from the time she was six until she was ten. The evidenc e ag ainst him primarily consisted of the victim’s testimony detailing the abuse; testimony from the victim’s day car e teac hers that the victim infor

med them that Nicely had abused her; photogr aphs of the victim’s va g ina; and testimony from the nurse who examined the victim and took the photogr aphs, including her opinion that the photogr aphs showed an absenc e of the victim’s hy men at the six o’cloc k position, somethingNo. 11-5735

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the nurse said was “consistent with” vag inal penetr ation. Nicely denied all wrong doing and testified in his defense

. He was tried twice on these char g es; the first trial ended in a m i strial when the jury was

u n ab l e to rea ch a unanimous verdic t. One primary differ ence betwee n the two trials was the intro d u ct i on and explanation of the photogr aphs taken by the nurse offe red in the second trial. Nicely was sentenc ed to fifty -three y ear s in prison. Some of his convictions wer e reve rsed on appea l for r easons irr eleva

nt here , but his sentence r emained the same. Wit h the help of new counsel, Nicely petitioned for post-conviction relief in state court. He alleg ed, among other things, that his trial counsel was ineffe ctive for fa iling to find and prese nt testimony from a medical expert who could counter the nurse’ s opinion that the photogr aphs showed the absenc e of hy

menal tissue. The court hear d testimony from Nicely , his tria l c ounsel, the nurse who ex amined the victim and testi fied a t trial, and Dr. Matthew S eibel, among others. Dr. S eibel testified in pa

rt that, while he noted some “irre g ularities” on the victim’s hy men as depicted in the photogr aphs, he found no place wher e the hy men was absent, including at the six o’cloc k position. This testimony was contra ry to the nurse’ s on the same point. Dr. Seibel further opined that he could not determine, ba sed upon the photog raphs, whe ther the vic tim had been se x ually penetr ated. Ba sed u p o n Dr

. Seibel’s testimony and the absenc e of any tactica l rea son offe red by trial counsel for not seeking an expert’s op i n i o n o n t h e photos, the state trial court g rante d Nicely ’s petition for relief on the basis of ineffe ctive assistance of counsel. The Tenne ssee Court of Criminal Appea ls rever sed the g rant of r elief, a nd the Tenne ssee Supre me Court declined f urther r eview.

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Nicely v . Mills

This fede ral habea s litigation followed. The district court acc epted a mag istrate judge ’s

rec ommendation and denied relief on all claims

. I t cer tified one issue for appea l: “whe ther the petitioner’s trial counsel’s failure to obtain additional expert testimony

. . . was ineffe ctive assistance of counse l.” Nice ly

timely appea led. I I

. We revie w the district court’s habea s decision de novo. Aye rs v. Hudson , 623 F.3d 301, 307 (6t h C i r. 2010). The Antiterror ism and Effe ctive Dea th Penalty Act (“A EDPA”) applies beca use Nicely ’s petit ion was filed afte r t he statute’s e ffe ctive date and bec ause his cla im was adjudicated

on the merits by a state court. See 28 U.S.C. § 2254(d); Harrington v. Richter , 131 S. Ct. 770, 784 (2011). Under AEDPA, relief is war rante d only wher e a state co u rt ’s m erits deter mination was “contr ary to, or involved an unrea sonable application of, clea rly established Fe dera l law,” o r wa s “base d on an unrea sonable deter mination of the fac ts in light of the evidenc e prese nted in the State
court proce eding .” 28 U.S.C. § 2254(d). To be unrea sonable, “the state court’s decision must have been more than in co rr ec t o r err oneous[;]

. . . [i t] must have been ‘objec tively unrea sonable.’” W iggins v. Smith , 539 U.S. 510, 520–21 (2 0 0 3 ) (c itations omitted). The threshold for “unre asonable ness” is “substantially highe r” than it is for incorre ctness, Schriro v. Landrigan , 550 U.S. 465, 473 (2007), satisfied only when a state-c ourt decision “wa s so lacking in justification that there was an err or well und er s tood and compre hended in exis ting law bey ond any possibili ty for fairminded disa g ree ment,” Harrington , 131 S. Ct . at 786–87.

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I I I

. The only issue cer

tified for our revie w is w hether Nicely ’s trial counsel was ineffe ctive for not investiga ting a

nd later pr esenting expert testimony

. A. To succe ed on a c laim of ineff ective a ssistance of counsel, a defe ndant must show that his lawy er’ s perf

ormance was defic ient and that the defic iency prejudice d his defe nse. Strickland v. W ashington , 466 U.S. 668, 687 (1984). A cour t need not addr ess both components of the i nquiry if a defe ndant makes an insufficient showing on one. Id. at 697. Both prong s are mix ed questions of law and fac t, id. at 698, and are there fore revie wed under AEDPA’s “unre asonable application”
prong when that statute a pplies, as it does here , Barnes v. Elo , 339 F.3d 496, 501 (6th Cir. 2003)

. To establish prejudice from co u n s el ’s defic iency , a defe ndant must show a “re asonable probability that, b u

t f or counsel’s unprofe ssional err ors, the result of the proce eding would have been differ ent.” Strickland , 466 U.S. at 6 9 4. A “re asonable probability ” is a probability “suff icient to undermine confide nce in the outcome.” Id. “The likelihood of a differ ent result must be substantial,
not just conce ivable.” Harrington , 131 S. Ct. at 792. A verdic t or conclusion strong ly supported by the re cord is less likely to ha ve been aff

ecte d by err ors than one with w eak rec ord support. See Strickland , 466 U.S. at 696. When AEDPA applies, the ultimate question for a fede ral court is not whether its confide nce in the outcome is sufficie ntly undermined by counsel’s err ors, but rathe r whether the state court’s prejudice deter mination was rea sonable. See Lockye r v. Andrade , 538 U.S. 63, 75–76 (2003); W

illiams v. Taylor , 529 U.S. 362, 411 (2000).

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B. Nicely ’s claim conce rns his attorney ’s failure to investiga te and later call an expert to counter testimony from the state’s expert explaining photogr aphs of the victim’s hy men take n d u ri ng a phy sical examination. J ulie Rosof , th e n u r s e p r a c titioner who phy sically examined the victim shortly afte r she repor

ted t he abuse, offe red the jury her opinion that the phot ogra p h s s h owed a complete absenc e of hy

menal tissue at the six o’cloc k position. Rosof also testified that there has never been

a fema le that did not have hy menal tissue at that position when born, and that medical profe ssionals routinely rely on this fac t in making medical diag noses. The nurse further testified that the absenc e of hy menal tissue was “consistent with” penetr ation of the victim’s vag ina, though she could not say she deeme d the medical finding “de finite proof” of penetr ation. Notably , she disagreed that the phy sical finding s wer e “also consistent with there not having been penetr ation.” (Emphasis added.) Rosof confirme d that the only phy sical finding she relied upon when testify ing at Nicely ’s trial that her exam was consistent wi t h p en etra tion was the absenc e of hy menal tissue at the six o’cloc k position. Rosof’s opinion reg arding the absenc e of hy menal tissue at the six o’cloc k position, it turns out, is not bey ond dispute—there is an alt er n at i v e medical interpre tation of the photos. After his conviction, Nicely found and solicited from Dr. Matth ew S ei b el, a medical doctor board certifie d in pediatric s and specia liz ing in chil d abuse and neg lect, a medical opinion that the photogr aphs show a fully

intact hy men, including at the six o’cloc k position.

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Nicely v . Mills During post-conviction proce eding s in state court, Dr. Seibel testified that, althoug h he could
not see hy menal tissue at the six o’cloc k position in some of the photogr aphs, he was unable to tell from those photos whether the tissue was actua lly absent or had simply flattene d down due to g ravity and thus only appeared to be absent. Howeve r, based upon photogr aphs of the victim taken while in a differ ent position (in the “knee -che st” position, as opposed to the “fr og leg ” position), Dr. Seibel

was able clea

rly to observe the full prese nce of hy menal tissue at the six o’cloc k position. Dr. Seibel d i d ac k n o wledg e “some irreg ularities,” including a small cre ase at the six o’cloc k position, b u t explained that “a lot of time we’ ll see littl e seams or cre ases in that are a,” and that such irreg ularities “ar e, in fac t, normal findings in a lot of children. We see them q u i t e o ft en . ” (He later stated that hy menal irreg ularities and absenc es are entirely differ ent matters, and he would never document an irreg ularity as an absenc e o r v i ce versa .) Ex plaining why one might see hy menal tissue in some positions but not in others, Dr. Seibel said the f ollowing: [W ith] a complete transec tion, [t he hy men] will be absent with the child supine, it will be absent with the child in [t he] knee- chest [posi tion]

. I f it’s absent it’s absent. Sometimes we will see it wher e it’s lay ing down or flattene d in the supine position but then drops down almost like a curta in in knee- ch es t ; and it’s there ; y ou just couldn’t see it in the supine positi on. (“Tr ansec tion,” Dr. Seibel later explained, “is wher e the hy men has torn throug h to the vag inal wall and ty pically does not heal back in scar fashion;

. . . it just heals open, and [t here will be] a complete absenc e of hy

men in that are a extending back to the vag inal wall.” Dr. Seibel stated unequivoca lly in reg ards to hy

menal tissue at the six o’cloc k position: “[I ]t ’s absolutely there , sir. You can see it.”

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And: “ther e’s not a complete transec tion. There is hy menal tissue all the way around, sir.” Finally : “The hy men’s ther e, sir. You c an cle arly see it in the knee -che st [ position] .” 1 On cross-examination, Dr. S eibel agr eed that, had he examined the vi ctim, he would have made a medical diag nosis of sex abuse, but would have done so based entirely on the verba l history the victim pr ovided, not the phy sical finding s, which he deeme d equivoca l. (“H istory ,” Dr. Seibel explained, “is all the medical, social information , t h e history of prese nt illness and any other pertinent historical verba l issues which help y ou to make a medical diag nosis.”). Thoug h he ag ree d that the phy sical examination was “consistent with” penetr ating injury , he stated that a normal exam, too, is “consistent with” a penetr ating injury

. I n other words, the photogr aphs of the victim’s hy men did not prove the exis tence of a penetr ating injury ; they wer e simply consistent with an injury , such that he could not rule out a penetrat i n g injury , though even a perf ectly normal hy

men, Dr. Seibel explained, can be consistent with a history -base d finding of pene tration. After considering this and other testimony , the state trial c ourt conc luded that counse l was defic ient for failing to call a medic al expert to ref ute Rosof, and that the de ficienc y prejudice d the defe nse. Wit h respe ct to prejudice , it noted that, g iven the “two almost identical trials,” it could “m o re easily analy

ze the eff ects of the photos/sli des on the second trial[.] ” The first o n e d i d n o t involve photos; the second one did. The first ended in deadloc k; the second in a conviction. I n the trial court’s view, g iven the differ ent outcomes, “the signific ance of the photogr aphs/slides can not

Rosof test i fi ed at t h e evidentiar y hear ing that what Dr. Seibel considere d to be hy menal 1 tissue at the six o’cloc k position R osof consider ed to be vaginal tissue. - 7 -No. 11-5735

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be discounted in thei r i m p o rt an ce and the eff ects of the photos and interpre tation of the photos
cannot be minimi zed.” I t found a rea sonable probability that the result of the proce eding would have been dif fer ent had the jur

y hear d Dr. Seibel’s te stimony

. T he Tennessee Court of C riminal Appea ls disag ree d. Wit h respe ct t o prejudice , th e co u rt explained as follows: [W ]e disag ree with the conclusions of the post-conviction court reg arding the eff ect that Dr. Seibel’s testimony would have had at the trial. Certainly , h i s t es t i mony reg arding the intactness of the victim’s hy men differ ed from t h at of Nurse Rosof-Will iams. Howeve r, whether her hy m en wa s completely intact was not the ultimate issue. Dr. Seibel acknow ledg ed that, even g iven his differ ent interpre tation of t he photo gra p h s , he would not have disag ree d that the vi ctim had been s exually abused and that, in fac t, the “irre g ularity ” which h e o bserve d at the six o’cloc k position on the victim’s hy men was consistent with a penetr ating injury

. As to this, Dr

. Seibel’s opi nion would appea r t o have been helpful to the prosecution , n o t t h e defe nse. Additionally , we note tha t, although the petitioner pre sented e x pert proof at trial that the larg e siz e of his penis would have preve nted h i s p en etra ting the victim, Dr. Seibel was not asked at the evidentiar y hear ing whether the irreg ularities he observe d fr om the photogr aphs of the victim’s vag ina wer e consistent with penetr ation by

a larg e penis. His response to this question could have under cut the petitioner’s claim of “impossibili ty .” Thus, we conclude that the petitioner failed to establish that trial counsel e ither wa s ineffe ctive in not prese nting this testim ony at trial or that the pe titioner was pre judiced by

the fa ct this did not occur. C. We do not addre ss counsel’s pre- trial perf ormanc e beca

use we conclude that the Tenne ssee Court of Criminal Appeals’ pr ejudice de termination was r easona ble. Al t h o u gh we observe materia l differ ence s in the two opinions from Rosof and Dr. Seibel
reg arding injury to the victim’s hy men, rea sonable judge s could view them as larg ely consistent with

one another

. Specifica lly , one could rea sonably rea d Dr. S ei b el ’s statements that the phy sical

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examination was “equivoc al in nature ” and that he had “some questions about

. . . the are a at 6:00” 2 as l arg ely consonant with Rosof’s opinion reg arding the absence o f h y m en at that same posit ion. And Dr. Seibel’s opi nion reg arding the presence of “irreg ularities ” i n t he victim ’s hy men t hat are “consistent with” a finding of penetr ating injury can rea sonably be considere d in acc ord with Rosof’s ident i ca l o p i nion. This overa ll simil arity in the testimony from both experts sug g ests that the absenc e of Dr. Seib el ’s o p i n i o n reg arding the photogr aphs had littl e or no eff ect on the ultimate
out co m e, an d m ay have even bolstered the state’s case . I t was rea sonable for the state court implicitl y to conclude that the only opinion Dr. Seibel might offe r that would undermine confide nce in the verdic t would be that the state of the vict i m ’s h y m en , as depicted in the photos, was inconsistent wit h any

finding of vag inal penetr ation, an opinion Seibel was not able to provide. I n addition, there is other evidenc e in the rec ord, though not expressly considere d by the state
court in its opinion, that supports its prejudice deter mination. See Holder v. Palmer , 588 F.3d 328, 341 (6th Cir. 2009) (noting that when AEDPA applies, fede ral courts consider the result or decision

rea ched by the state court, not nece ssarily the rea soning used to g et there ); Neal v. Puck ett , 286 F.3d 230, 246 (5th Cir. 2002) (en banc) (per curia m) (“[O]ur focus on the ‘unre asonable application’ test under Section 2254(d) should be on the ultimate leg al conclusion that the state court rea ched and not on whether

the state c ourt consider ed and disc ussed eve ry ang le of the e vidence .”).

By “equivoc al,” Dr. Seibel meant that he couldn’t “say one way o r an o t her based on the 2 phy sical examination alone” w hether there had bee n penetr ation. - 9 -No. 11-5735

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First, whe n considering the streng th of the state’s case and the eff ect the photos ha d on the jury when viewed along side Rosof’s testimony , it is rea sonable to attribute littl e signific ance to the fac t that Nicely ’s first trial ended in deadloc k while the second ended in a conviction; evidenc e apar t from Rosof’s explanation of the photogr aphs can rea sonably explain the differ ence i n o u tcomes. Trial counsel testified at the evidentiar y hear ing, for example, that the victim seeme d “more upbeat, and sunny ” at the first trial, while at the second, she was “more shy , or withdrawn,” making it harde r to eff ectively cross-e x amine and impeach her cre dibilit y . Counsel also rec alled that the prosec utor focuse d more in t h e fi rst trial on penetr ation and more in the second on masturbation, there by making phy sical evide nce of penetr ation less rele vant to the jury ’s ver dict. Seco n d , i t i s rea sonable to find signific ant importance in the testimony from the victim’s day car e teac hers, who testified that they lear ned of the abuse from t h e victim’s friend. This testimony substantially

bolstered the vic tim’s story and could have informe d the jury ’s ver dict. Third, Nicely ’s own medical expert, Dr. Steven Miniat, afte r viewing photogr aphs of the victim’s vag ina while she was in the knee- chest position, testified at trial that “[t] he absenc e of the hy men there would dictate that one should have incre ased awa rene ss and should probe far ther” into whether ther e was sexual abuse. He further acknow ledg ed that he would have contac ted state authorities had h e ex amined the victim and observe d what the photogr aphs depicted. Finally , he
ag ree d with Rosof that the absenc e of hy men was consistent with penetr ation. One could rea sonably conclude that Dr. M i n i at ’s t estimony in this reg ard would cut strong ly ag ainst any favor able testimony Dr. Seibel c ould have pr ovided in Nicely ’s def ense.

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I n sum, becau s e t h e decision of the Tenne ssee Court of Criminal Appea ls was not

unrea sonable, ha

beas r elief is not war

rante d. I V. Next, Nicely contends that the district court err ed by no t a ll o w in g h im a n evidentiar

y hear ing. We are inclined not to consider this issue in light of the war den’s objection that it was not included in the cer tificate of appea lability (“COA” ). See 2 8 U. S

. C

. § 2253(c) ; Perkins v. McQ uiggin , 670 F. 3 d 665, 669 (6th Cir.) (“O ur revie w of a petitioner’s § 2254 motion is limit ed to those iss u es specifie d in the cer

tificate of appea lability .”), cert. granted , 133 S. Ct. 527 (2012); see also Gonzalez

v. Thaler , 132 S. Ct. 641, 649 (2012) (noting that “the failure to obtain a COA is jurisdictional, while

a COA’s failure to indicate an issue is not[ ,]” there by rende ring defe cts in the cer tificate susceptible
to forf eiture)

. Nonethele ss, a ssuming, without deciding , that Nicely ’s challeng e is proper ly befor e us, we re ject it. Nicely

asked the district court for an evide ntiary hear ing so he could try to clarify Dr. Seibel’s ear lier testimony , which Nicely claims was sever ely misc o n s t ru ed by the Tenne ssee Court of Criminal Ap p ea l s i n re versing the g rant of relief

. The district court denied that reque st, relying on the Supreme Court’s rec ent decision in Cullen v. Pinholster , 131 S. Ct. 1388 (2011). That

was corr ect. I n Cullen , the Court explained that fede ral habea s revie w g overne d by § 2254(d)( 1) is limit ed “to the re cord tha

t was bef ore the state cour

t that adjudicated the claim on the mer its.” Id.

a t 1 3 9 8

. The decision prec ludes Nicely from further developing his Strickland claim in fede ral c o u r t. Nicely attempts to work ar ound Cullen by arg uing tha t the need f

or Dr. Seibel’s further t estimony

arose for the first time on appea l, afte r the close of the evidenc e in the post-conviction proce eding

.
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But he does not explain why that matters. Be cause his ineffe ctive-a ssistance claim was decide d on the m er i t s , revie w under § 2254(d)( 1) is limit ed to evidenc e the state court had befor e it. Cullen admits of no ex ce p t i on that would apply here

. Cf. Ballinger v. Prelesnik , — F.3d —, 2013 WL 776790, at *3–4 (6th Cir. Mar. 4, 2013) (conc luding that an ineffective-assistance claim was adjudicate d on the merits in state court and thus barr ed from further fac tual development in a fede ral evidentiar y hear ing, notwithstanding the state court’s decision disallowing the p et i t ioner from developing the claim in an e videntiary hear ing)

. V. For these re asons, we a ffirm the judg ment of the district cour t.

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