LUIS ARMANDO MESTA, 

Petitioner, 

v. 

JOHN MYRICK, 

Respondent. 

AIKEN, District Judge: 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

Case No. 2:14-cv-01625-AA 

OPINION AND ORDER 

Petitioner, an inmate at Two Rivers Correctional Institution, filed an amended petition for 

writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner alleges that his appellate counsel 

provided ineffective assistance by failing to raise a meritorious argument during direct appeal 

proceedings. Respondent argues that petitioner is not entitled to relief because his claim was 

denied in a state court decision entitled to deference. For the reasons explained below, the 

petition is denied. 

BACKGROUND 

In March 2007, petitioner was tried before a jury on five counts of First Degree Sexual 

Abuse. Mesta v. Franke, 261 Or. App. 759, 761, 322 P.3d 1136 (2014). The State alleged that 

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petitioner touched the breasts of five children while he worked as a receptionist at a children's 

health clinic. Id. The children testified at trial, and the State introduced the testimony of Dr. 

Oddo, a pediatrician who had examined the children. Petitioner's trial counsel objected to Dr. 

Oddo's testimony and argued that the jury would give his testimony undue weight in the absence 

of supporting physical evidence. Id. at 773-76, 322 P.3d 1136. The trial court overruled 

petitioner's objection. Dr. Oddo testified and rendered diagnoses of sex abuse with respect to 

three of the five children. Id. at 761-63, 322 P.3d 1136. Dr. Oddo admitted that he detected no 

physical signs of abuse and his diagnoses and testimony were based on interviews with the 

children and their caregivers. Id. at 762-63, 322 P.3d 1136. 

The jury convicted petitioner of four counts of Sexual Abuse in the First Degree and 

I 

acquitted petitioner of the fifth count. Id. at 766, 322 P.3d 1136. 

The trial court sentenced petitioner to consecutive and concurrent sentences totaling 150 

months' imprisonment. Resp't Ex. 101. Petitioner appealed his convictions and asserted that the 

trial court erred by admitting Dr. Oddo' s testimony and the diagnoses of sexual abuse. 

Specifically, petitioner argued that Dr. Oddo's diagnoses of sex abuse impermissibly commented 

on and vouched for the credibility of the victims in the absence of supporting physical evidence. 

Resp't Ex. 104. 

Shortly after petitioner filed his opening brief in the Oregon Court of Appeals, the 

Oregon Supreme Court accepted review in State v. Southard, 347 Or. 127, 218 P.2d 104 (2009). 

Similar to petitioner's case, Southard involved child sex abuse allegations supported by the 

testimony of a physician who diagnosed sexual abuse in the absence of corroborating physical 

evidence. The defendant in Southard unsuccessfully appealed his conviction, and the Oregon 

Supreme Court accepted review of the case on three grounds: 

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(1) Whether a medical diagnosis of child sexual abuse based on the child's claim 

of abuse and his behavior, without confirming physical evidence, is scientifically 

valid .... 

(2) Whether a medical diagnosis of child sexual abuse m the absence of 

corroborating physical evidence is unfairly prejudicial. 

(3) Whether a diagnosis of child sexual abuse that is based on the evaluator's 

detailed explanation as to why the child's statement is truthful is an impermissible 

comment on the credibility of the alleged victim. 

Mesta, 261 Or. App. at 777, 322 P.3d 1136. The second ground implicated Oregon Evidence 

Code (OEC) 403, which provides that relevant evidence "may be excluded if its probative value 

is substantially outweighed by the danger of unfair prejudice." Or. R. Evid. 403. The third 

ground was the same argument raised by petitioner's appellate counsel. Petitioner's counsel did 

not seek to amend his opening brief to raise OEC 403 after the Oregon Supreme Court granted 

review in Southard. 

On March 25, 2009, the Oregon Court of Appeals affirmed petitioner's convictions 

without opinion, and petitioner sought review with the Oregon Supreme Court. Resp't Ex. 107; 

State v. Mesta, 227 Or. App. 289, 205 P.3d 890 (2009). The Oregon Supreme Court held the 

petition for review in abeyance pending its decision in Southard. Resp't Ex. 110 at 2. 

On October 1, 2009, the Oregon Supreme Court decided Southard and held that "where, 

as here, that diagnosis [of sex abuse] does not tell the jury anything that it could not have 

determined on its own, the diagnosis is not admissible under OEC 403." Southard, 347 Or. at 

142, 218 P.3d 104. The Court explained that a diagnosis of sex abuse "based primarily on the 

assessment of the [child's] credibility" was "particularly problematic," because the diagnosis 

"posed the risk that the jury will not make its own credibility determination, which it is fully 

capable of doing, but will instead defer to the expert's implicit conclusion that the victim's 

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reports of abuse are credible." Id. at 141, 218 P.3d 104. Accordingly, the Court determined that 

"the risk of prejudice substantially outweighs the minimal probative value of the diagnosis." Id. 

On January 21, 2010, the Oregon Supreme Court denied review of petitioner's appeal. 

Resp't Ex. 108. 

Petitioner's appellate counsel then moved to recall the appellate judgment on grounds 

that petitioner's case was materially indistinguishable from the post-Southard case of State v. 

Merriman, 234 Or App. 515, 228 P.3d 666 (2010). Resp't Ex. 110. There, as in petitioner's case, 

defense counsel had objected to the admission of a sex abuse diagnosis as an impermissible 

comment on the victim's credibility. Id. at 518, 228 P.3d 666. Petitioner's counsel emphasized 

that in Merriman the Oregon Court of Appeals found admission of the diagnosis to be plain error 

under OEC 403, regardless of whether defense counsel objected on OEC 403 grounds. Resp't 

Ex. 110. The Oregon Court of Appeals denied petitioner's motion and the Oregon Supreme 

Court denied review. Resp't Exs. 112, 114. 

Petitioner subsequently filed a petition for post-conviction relief (PCR) and alleged that 

appellate counsel was constitutionally ineffective for failing to raise OEC 403 after the Oregon 

Supreme Court granted review and/or decided Southard. Resp't Exs. 115-16. The PCR court 

decided the petition and stated, "There was no way to know what theory the courts would have 

based the Southard decision on. It's not as though [appellate counsel] had a chance to read 

through Southard and blew it ... This was a total change of the law .. .I think this attorney went to 

extraordinary measures to try to get this case looked at again." Resp't Ex. 122 (Transcript at 16-

17), Ex. 123. The Oregon Court of Appeals affirmed in a written opinion, and the Oregon 

Supreme Court dismissed the petition for review. Resp't Exs. 126-27, 130; Mesta, 261 Or. App. 

759, 322 P.3d 1136. 

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On October 14, 2014, petitioner filed his federal habeas petition under 28 U.S.C. § 2254. 

On May 28, 2015, petitioner filed a supplemental petition. 

DISCUSSION 

Petitioner raises two grounds in his supplemental petition. In Ground One, petitioner 

asserts that the trial court erred by admitting the testimony of Dr. Oddo over trial counsel's 

objection that the testimony would vouch for the credibility of the child witnesses, mislead and 

confuse the jury, and deny petitioner's right to a fair trial. Suppl. Pet. at 7 (ECF No. 29). 

Respondent argues that this claim was not fairly presented to the Oregon courts on federal 

constitutional grounds and is barred from federal review. Petitioner submitted no briefing or 

argument in support of Ground One and fails to carry his burden of showing entitlement to 

federal habeas relief. See Mayes v. Premo, 766 F.3d 949, 957 (9th Cir. 2014) (a habeas petitioner 

bears the burden of proving his claims). 

In Ground Two, petitioner asserts that his appellate counsel was constitutionally deficient 

by failing to raise OEC 403. Suppl. Pet. at 7; Strickland v. Washington, 466 U.S. 668 (1984). 

Specifically, petitioner alleges that his appellate counsel should have 1) moved to amend his 

opening brief and raise OEC 403 after the Oregon Supreme Court granted review in Southard; or 

2) moved to recall the appellate judgment and file a petition for plain error review on OEC 403 

grounds after the Oregon Supreme Court decided Southard. Pet'r Br. at 15-20 (ECF No. 63). The 

Oregon Court of Appeals rejected petitioner's claims in a written opinion, and respondent 

maintains that the court's decision is entitled to deference. I agree. 

A federal court may not grant a habeas petition regarding any claim "adjudicated on the 

merits" in state court, unless the state court ruling "was contrary to, or involved an unreasonable 

application of, clearly established Federal law." 28 U.S.C. § 2254(d)(l). A state court decision is 

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"contrary to" established federal law if it fails to apply the correct Supreme Court authority, or if 

it reaches a different result in a case with facts "materially indistinguishable" from relevant 

Supreme Court precedent. Brown v. Payton, 544 U.S. 133, 141 (2005); Williams v. Taylor, 529 

U.S. 362, 405-06 (2000). A state court decision is an "unreasonable application" of clearly 

established federal law if the state court identifies the correct legal principle but applies it in an 

"objectively unreasonable" manner. Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per 

curiam); Williams, 529 U.S. at 407-08, 413. "A state court's determination that a claim lacks 

merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the 

correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) 

(quoting Yarborough v. Alvarado, 541 U.S. 653, 664 (2004)). 

Under well-established Supreme Court precedent, a pnsoner alleging ineffective 

assistance of counsel must show that 1) "counsel's performance was deficient," and 2) counsel's 

"deficient performance prejudiced the defense." Strickland, 466 U.S. at 687. To establish 

deficient performance in this case, petitioner must show that counsel unreasonably failed to raise 

the OEC 403 issue at some point during direct appeal. Smith v. Robbins, 528 U.S. 259, 285 

(2000). To establish prejudice, petitioner must show "a reasonable probability that, but for his 

counsel's unreasonable failure to [raise OEC 403], he would have prevailed on his appeal." Id. at 

285-86. Unless petitioner "makes both showings, it cannot be said that the conviction ... resulted 

from a breakdown in the adversary process that renders the result unreliable." Strickland, 466 

U.S. at 687. 

Here, the Oregon Court of Appeals rejected "petitioner's argument that his appellate 

counsel's failure to raise the OEC 403 argument after the Supreme Court accepted review in 

Southard rendered his counsel's performance constitutionally inadequate." Mesta, 261 Or. App. 

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at 778, 322 P.3d 1136. Petitioner contends that the Oregon Court of Appeals applied Strickland 

in an objectively unreasonable manner, because the OEC 403 issue was apparent from the record 

and appellate counsel had a duty to raise arguments potentially beneficial to petitioner. Petitioner 

further maintains that if counsel raised and argued the OEC 403 issue, petitioner's appeal would 

have resulted in a new trial in light of the Southard decision. 

Significantly, the Oregon Court of Appeals found that appellant counsel's failure to raise 

OEC 403 was not unreasonable because the "state of the law" at the time allowed the admission 

of a sexual abuse diagnosis. Mesta, 261 Or. App. at 768-69, 778, 322 P.3d 1136 (discussing State 

v. Sanchez-Cruz, 177 Or. App. 332, 33 P.3d 1037 (2001)). The court explained: 

[I]t must first be noted that, although the Supreme Court had indicated that the 

OEC 403 issue might be considered in Southard, there was nothing to particularly 

indicate that the court was going to decide the case on that issue, let alone decide 

it in a manner favorable to petitioner. Indeed, Southard represented a substantial 

departure from previous law .... 

In assessing the performance of appellate counsel, the potential benefits of raising 

the OEC 403 issue after the Supreme Court accepted review in Southard may 

seem large; however, those potential benefits appear vastly more speculative 

without the assistance of hindsight. In considering whether to raise an OEC 403 

argument in this court after the Supreme Court took review in Southard, the 

following facts confronted appellate counsel. First, counsel would have had to 

seek the permission of this court to raise the issue .... 

Assuming, then, that appellate counsel could have reasonably expected us to 

exercise our discretion to allow petitioner to present an OEC 403 argument, there 

was nothing, in light of Sanchez-Cruz, to reasonably indicate to counsel that the 

outcome of the appeal in this court would be any different than what it eventually 

was .... Petitioner points us to no authority for the proposition that appellate 

counsel is ineffective for failing to anticipate a change in the law when there is 

controlling, contrary precedent during the entire pendency of the appeal. 

*** 

In sum, appellate counsel may have reasonably decided, given the circumstances 

that we have discussed above, that raising OEC 403 after the Supreme Court 

granted review in Southard was not worth the candle. 

Mesta, 261 Or. App. at 781-82, 784, 322 P.3d 1136 (internal citations and footnote omitted). 

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The Oregon Court of Appeals further noted that the briefing submitted in Southard 

reasonably suggested that OEC 403 "would not be central to the eventual resolution of that 

case." Id. at 783, n.6, 322 P.3d 1136. The Court of Appeals emphasized that the opening 

appellate brief in Southard devoted "approximately 24 pages" to the argument that the diagnosis 

of sexual abuse was not valid scientific evidence and only "three pages to the OEC 403 

argument." Id. 

In other words, the Oregon Court of Appeals found no deficiency in light of thenprevailing Oregon law and the relevant record before the Oregon Supreme Court. The Oregon 

Court of Appeals expressly found that the Southard decision was a "substantial departure" from 

previous law, a departure that was not foreseeable from the record. Mesta, 261 Or. App. at 781-

83, 322 P.3d 1136; see also Umberger v. Czerniak, 232 Or. App. 563, 564-55, 222 P.3d 751 

(2009) (explaining that a diagnosis of sexual abuse was previously admissible under Oregon law 

and "[ o ]nly recently, in [Southard] did the Oregon Supreme Court hold differently"). 

Importantly, this Court must accept the Oregon Court of Appeals' interpretation of Oregon law. 

See Mendez v. Small, 298 F .3d 1154, 1158 (9th Cir. 2002) ("A state court has the last word on 

the interpretation of state law."). Further, on federal habeas review, a state court decision "must 

be granted a deference and latitude that are not in operation when the case involves review under 

the Strickland standard itself." See Richter, 562 U.S. at 101. 

Given the deference it must be afforded, the Oregon Court of Appeals reasonably found 

that - "without the benefit of hindsight" - counsel was not deficient in failing seek amendment 

of the opening brief to raise the OEC 403 issue. Mesta, 261 Or. App. at 783, 322 P.3d 1136; see 

also Strickland, 466 U.S. at 689 ("A fair assessment of attorney performance requires that every 

effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of 

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counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the 

time."). It is well-established that an attorney is not expected to anticipate future court rulings, 

particularly when the circumstances do not portend the ruling that subsequently issues. See 

Lowry v. Lewis, 21F.3d344, 346 (9th Cir. 1994). 

The Oregon Court of Appeals also rejected petitioner's claim that he was prejudiced by 

appellate counsel's failure to raise OEC 403 after Southard was decided. Mesta, 261 Or. App. at 

785, 322 P.3d 1136. Petitioner argues that the Oregon Court of Appeals' decision contradicted 

Strickland because it required petitioner to show that the outcome of his appeal "would have 

been different" rather than a reasonable probability of a different outcome. Pet'r Br. in Support at 

21 (citing Mesta, 261 Or. App. at 785, 322 P.3d 1136); Strickland, 466 U.S. at 694 (a petitioner 

"must show that there is a reasonable probability that, but for counsel's unprofessional errors, the 

result of the proceeding would have been different"); see also Robbins, 528 U.S. at 285-86. 

However, petitioner emphasizes one sentence of the Oregon Court of Appeals' decision 

and ignores the numerous times it explained that petitioner must show either "a reasonable 

probability" or "it is more likely than not" that his appeal outcome would have been different. 

See Mesta, 261 Or. App. at 771, 785-86, 322 P.3d 1136. Moreover, the Oregon Court of Appeals 

expressed skepticism that it "would have exercised [its] discretion to allow petitioner to present 

[the OEC 403] argument, let alone that [it] would have then exercised it a second time to reverse 

petitioner's convictions based on OEC 403 as a matter of plain error." Id Petitioner presents no 

argument to show that the Oregon Court of Appeals was objectively unreasonable in assessing 

the probability of its own actions. 

Accordingly, the Oregon Court of Appeals' decision was not contrary to or an 

unreasonable application of Strickland, and habeas relief is denied. 

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CONCLUSION 

The Supplemental Petition for Writ of Habeas Corpus (ECF No. 29) is DENIED and this 

case is DISMISSED. A Certificate of Appealability is denied on the basis that petitioner has not 

made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 

2253( c )(2). 

DATED thi~fSeptember, 2017. 

~Ok.) Ann Aiken 

United States District Judge 

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