NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TRAVIS MICHAEL EASTER, 

Petitioner-Appellant, 

 v. 

STEVE FRANKE, 

Respondent-Appellee.

No. 16-35286 

D.C. No. 2:11-cv-00906-JE 

MEMORANDUM*

Appeal from the United States District Court

for the District of Oregon

Michael W. Mosman, Chief Judge, Presiding

Submitted July 14, 2017**

Portland, Oregon

Before: WATFORD and OWENS, Circuit Judges, and NAVARRO,*** Chief 

District Judge.

Travis Easter, an Oregon state prisoner, appeals from the dismissal with 

prejudice of his 28 U.S.C. § 2254 habeas petition alleging ineffective assistance of 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Gloria M. Navarro, Chief United States District Judge 

for the District of Nevada, sitting by designation.

FILED

JUL 19 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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counsel. As the parties are familiar with the facts, we do not recount them here. 

We affirm. 

Easter’s claim that trial counsel provided ineffective assistance of counsel by 

failing to object to the father’s vouching testimony is procedurally defaulted, and 

thus Easter must show cause and prejudice. Martinez v. Ryan, 566 U.S. 1, 10 

(2012). To do so, counsel must be deficient and there must be a reasonable 

probability that the outcome would be different absent the deficient counsel. 

Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). 

Trial counsel’s decision not to object to the father’s vouching testimony was 

a valid strategic decision, and thus trial counsel was not deficient. See Clabourne 

v. Lewis, 64 F.3d 1373, 1383 (9th Cir. 1995) (stating that “reasonably competent 

counsel might have many valid reasons for failing to object”). Because trial 

counsel had a valid trial strategy and did not merely offer a post-hoc rationalization 

of his decision-making process, his assistance fell within the “wide range of 

reasonable professional assistance.” Strickland, 466 U.S. at 689. Furthermore, 

Easter does not show prejudice as there is not a reasonable probability that the 

result of the proceeding would have been different had trial counsel objected. See 

Cunningham v. Wong, 704 F.3d 1143, 1159 (9th Cir. 2013). 

Easter also asserts ineffective assistance of counsel when trial counsel failed 

to object to a portion of the mother’s alleged vouching testimony. Easter argues 
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that this is a new claim that the Oregon Court of Appeals did not consider below. 

However, the Oregon Court of Appeals already considered the entirety of the 

mother’s testimony and rejected Easter’s claim, and thus this claim is subject to the 

“highly deferential standards” of the Antiterrorism and Effective Death Penalty 

Act. Runningeagle v. Ryan, 825 F.3d 970, 978 (9th Cir. 2016) (citation omitted). 

The Oregon Court of Appeals’ rejection of this claim was neither contrary to, nor 

based upon an unreasonable application of, clearly established federal law, nor an 

unreasonable determination of the facts in light of the evidence presented in state 

court. See 28 U.S.C. § 2254(d). Accordingly, this claim fails. 

Easter’s claim of ineffective assistance of appellate counsel fails under the 

Supreme Court’s recent decision in Davila v. Davis, 137 S. Ct. 2058, 2062-63

(2017). Davila holds that federal habeas courts cannot hear procedurally defaulted 

claims of ineffective assistance of appellate counsel. Id. Thus, regardless of 

whether this claim is entitled to equitable tolling, this claim is procedurally 

defaulted and it fails under Davila. 

AFFIRMED.