IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

JEREMY SHANE HALL, 

Case No. 3:15-cv-00060-MO 

Petitioner, 

OPINION AND ORDER 

v. 

JOHN MYRICK, 

Respondent. 

Nell Brown 

Assistant Federal Public Defender 

101 S.W. Main Street, Suite 1700 

Portland, Oregon 97204 

Attorney for Petitioner 

Frederick M. Boss, Deputy Attorney General 

Kristen E. Boyd, Assistant Attorney General 

Department of Justice 

1162 Court Street NE 

Salem, Oregon 97310 

Attorneys for Respondent 

1 - OPINION AND ORDER 
MOSMAN, District Judge. 

Petitioner brings this habeas corpus case pursuant to 28 

U.S.C. § 2254 challenging the legality of his 2007 state-court 

convictions for Sexual Abuse and Unlawful Sexual Penetration. For 

the reasons that follow, the Amended Petition for Writ of Habeas 

Corpus (#16) is denied. 

BACKGROUND 

On September 2, 2005, 13-year-old LK was babysitting 

petitioner's children while he was out on a date. When petitioner 

returned home, he inappropriate touched LK several times. The 

next day, LK told a friend what had happened but did not disclose 

the abuse to her parents until October. When LK's father 

confronted petitioner with the allegations, petitioner initially 

denied any inappropriate conduct, but later admitted that he had 

a drinking problem, had taken off his pants and gotten into bed 

with LK, could not remember what he had done due to his heavy 

drinking that night, and asked for forgiveness. Trial Transcript, 

pp. 952-53. 

LK's parents reported the abuse to the police on December 9, 

2005, and LK appeared for an interview the following month at the 

"Kids Center," a child advocacy organization. Interviewer Paula 

Glesne and physician Michelle Kyriakos conducted the interview 

where LK recounted the incidents of abuse. Dr. Kyriakos postponed 

the physical examination until May 2006 because LK was not 

feeling well on the day of her interview and indicated that she 

did not wish to continue. Id at 1255-56. When Dr. Kyriakos 

2 - OPINION AND ORDER 
conducted the physical examination in May 2006, she found no 

abnormalities. Id at 1368. 

On January 18, 2006, the Deschutes County Grand Jury 

indicted petitioner on five counts of Sexual Abuse in the First 

Degree and one count of Unlawful Sexual Penetration in the First 

Degree. Respondent's Exhibit 102. At trial, Dr. Kyriakos 

testified that, following the January interview, she had been 

able to reach a diagnosis to a reasonable degree of medical 

certainty that LK had been sexually abused. Id at 1329. She based 

her diagnosis on the manner in which LK related the events during 

the course of the interview. Dr. Kyriakos focused on LK's: 

(1) verbal description of events, (2) ability to use her body as 

a reference to indicate what happened; (3) use of multiple 

details; and (4) the consistency of her core details over time. 

Id at 1333-34. She admitted on cross-examination that the 

validity of her diagnosis was "dependent upon the truthfulness of 

what [LK) said about whether she was sexually abused or not [.]" 

Id at 1368. Glesne testified that she looked to many of the same 

cues from LK to also conclude that LK was the victim of sexual 

abuse. Id at 1226-33. 

During closing argument, the prosecutor focused on the 

consistency of the victim's accounts, as well as the testimony of 

Glesne and Kyriakos. He also claimed that petitioner's behavior 

indicated a man with a guilty conscience and made the following 

statement about the circumstances of his arrest: 

And when he is arrested, how he is 

indifferent? Never denies. Talked about the 

3 - OPINION AND ORDER 
jail tape. Talks to his mom. He talks to his 

ex-wife. Never once as he testified yesterday 

did he deny. He said it really wasn't my main 

focus because he was trying to get people not 

to talk. Wouldn't that have been the time 

that he would have said I didn't do this. 

This is a big misunderstanding. 

Id at 1876. 

By a count of 11-1 on each charge, the jury convicted 

petitioner on all counts, and the trial court sentenced him to 

225 months in prison. Id at 1902-03, 1932. 

Petitioner took a direct appeal challenging the imposition 

of his consecutive sentences in the absence of specific jury 

findings. The State initially conceded this issue in light of the 

Oregon Supreme Court's decision in State v. Ice, 343 Or. 248, 170 

P.3d 1049 (2007), but later successfully sought reconsideration 

when the U.S. Supreme Court reversed that decision in Oregon v. 

Ice, 555 U.S. 160 (2009). As a result, the Oregon Court of 

Appeals affirmed the trial court's decision, and the Oregon 

Supreme Court denied review. State v. Hall, 227 Or. App. 504, 206 

P.3d 282, rev. denied, 346 Or. 364, 213 P.3d 578 (2008). 

Petitioner's Appellate Judgment became effective on September 18, 

2009. 

Approximately two weeks later, on October 1, 2009, the 

Oregon Supreme Court issued its decision in State v. Southard, 

344 Or. 401, 164 P.3d 351 (2008), wherein it concluded that a 

medical diagnosis of sexual abuse in the absence of corresponding 

physical evidence of sexual abuse "does not tell the jury 

anything that it could not have determined on its own" such that 

the diagnosis is inadmissible under OEC 403 because its risk of 

4 - OPINION AND ORDER 
prejudice outweighs the probative value of the diagnosis. 347 Or. 

at 142. On June 4, 2010, the Oregon Supreme Court addressed how 

the admission of such a diagnosis, even where not preserved for 

purposes of appeal, can nevertheless result in a finding of 

improper vouching stemming from statements that might otherwise 

be admissible. State v. Lupoli, 348 Or. 346, 234 P.3d 117 (2010). 

On August 12, 2010, petitioner filed his petition seeking 

post-conviction relief ("PCR") in Umatilla County where he 

alleged, in part, that his trial attorney was constitutionally 

ineffective for failing to object to the testimony of Glesne and 

Kyriakos because the testimony contained improper vouching, and 

because Dr. Kyriakos's diagnosis of sexual abuse was not 

supported by any physical evidence. Respondent's Exhibit 111. The 

PCR court denied relief on all of his claims. Respondent's 

Exhibit 136. The Oregon Court of Appeals affirmed the PCR court's 

decision without opinion, and the Oregon Supreme Court denied 

review. Respondent's Exhibits 140, 141. 

Petitioner filed this 28 U.S.C. § 2254 habeas corpus case on 

January 12, 2015. He argues that trial counsel was ineffective 

for failing to object to: (1) Dr. Kyriakos' medical diagnosis of 

sexual abuse in the absence of physical findings; (2) the 

statements offered by Glesne and Kyriakos addressing the 

characteristics or attributes that a truthful child displays; and 

(3) the prosecutor's comments in closing on petitioner's exercise 

of his right to silence. He also argues that direct appellate 

counsel was ineffective for failing to assign as plain error on 

appeal a challenge to the court's admission of an expert medical 

5 - OPINION AND ORDER 
diagnosis in the absence of corroborative physical evidence. 

Respondent asks the court to deny relief on these claims because 

the claim pertaining to appellate counsel is procedurally 

defaulted, and the state-court decisions denying relief on the 

claims regarding trial counsel's performance did not unreasonably 

apply clearly established federal law. 

DISCUSSION 

I. Unargued Claims 

With the assistance of appointed counsel, petitioner filed 

an Amended Petition in which he raises three grounds for relief 

containing 1 7 claims. In his supporting memorandum, petitioner 

chooses to argue the four claims pertaining to the performance of 

trial and appellate counsel as noted above. These claims 

correspond to Grounds 2(A), 2(B), 2(C) (9), and 3 in the Amended 

Petition. 

Petitioner does not argue the merits of his remaining 

claims, nor does he address any of respondent's arguments as to 

why relief on these claims should be denied. As such, petitioner 

has not carried his burden of proof with respect to these 

unargued claims. See Silva v. Woodford, 279 F.3d 825, 835 (9th 

Cir. 2002) (petitioner bears the burden of proving his claims). 

II. Exhaustion and Procedural Default 

A petitioner seeking habeas relief must exhaust his claims 

by fairly presenting them to the state's highest court, either 

through a direct appeal or collateral proceedings, before a 

federal court will consider the merits of habeas corpus claims 

pursuant to 28 U.S.C. § 2254. Rose v. Lundy, 455 U.S. 509, 519 

6 - OPINION AND ORDER 
(1982). A petitioner must also present his claims in a procedural 

context in which its merits can be considered. Castille v. 

Peoples, 489 U.S. 346, 351 (1989). A petitioner is deemed to have 

"procedurally defaulted" his claim if he failed to comply with a 

state procedural rule, or failed to raise the claim at the state 

level at all. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); 

Coleman v. Thompson, 501 U.S. 722, 750 (1991). 

As Ground 3, petitioner asserts that his appellate attorney 

should have challenged the admission of Dr. Kyriakos' sexual 

abuse diagnosis where there was no physical evidence to support 

the diagnosis. He concedes that he failed to raise his Ground 3 

claim in Oregon's state courts, but argues that his PCR 

attorney's failure to raise the claim of ineffective assistance 

of appellate counsel excuses his procedural default. Inadequate 

assistance of post-conviction counsel may establish cause to 

excuse the default of a substantial ineffective assistance of 

trial counsel claim. Martinez v. Ryan, 566 U.S. 1, 4 (2012). 

However, the holding of Martinez does not apply to claims 

involving the alleged errors of appellate counsel. Davila v. 

Davis, 137 S.Ct. 2058 (2017). Petitioner is therefore unable to 

excuse his default, and his alternative request for an 

evidentiary hearing is denied. 

III. The Merits 

A. Standard of Review 

An application for a writ of habeas corpus shall not be 

granted unless adjudication of the claim in state court resulted 

in a decision that was: ( 1) "contrary to, or involved an 

7 - OPINION AND ORDER 
unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court of the United States;'' or (2) 

''based on an unreasonable determination of the facts in light of 

the evidence presented in the State court proceeding.'' 28 U.S.C. 

§ 2254(d). A state court's findings of fact are presumed correct, 

and petitioner bears the burden of rebutting the presumption of 

correctness by clear and convincing evidence. 28 u.s.c. 

§ 2254 (e) (1). 

A state court decision is "contrary to clearly 

established precedent if the state court applies a rule that 

contradicts the governing law set forth in [the Supreme Court's] 

cases" or "if the state court confronts a set of facts that are 

materially indistinguishable from a decision of [the Supreme] 

Court and nevertheless arrives at a result different from [that] 

precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). 

Under the "unreasonable application" clause, a federal habeas 

court may grant relief "if the state court identifies the correct 

governing legal principle from [the Supreme Court's] decisions 

but unreasonably applies that principle to the facts of the 

prisoner's case.'' Id at 413. The ''unreasonable application" 

clause requires the state court decision to be more than 

incorrect or erroneous. Id at 410. Twenty-eight U.S.C. § 2254(d) 

"preserves authority to issue the writ in cases where there is no 

possibility fairminded jurists could disagree that the state 

court's decision conflicts with [the Supreme] Court's precedents. 

It goes no farther." Harrington v. Richter, 562 U.S. 86, 102 

(2011). 

8 - OPINION AND ORDER 
B. Grounds 2(A) & 2(B): Failure to Object to Expert 

Testimony 

Petitioner argues that his trial attorney was ineffective 

for failing to object to the testimony of Glesne and Kyriakos on 

two bases: ( 1) Dr. Kyriakos predicated her medical diagnosis of 

sexual abuse only upon the credibility of the victim's 

disclosure, not any physical evidence of abuse; and (2) both 

Glesne and Kyriakos engaged in improper vouching when they 

testified that the victim displayed certain characteristics or 

attributes that a truthful child displays. Al though petitioner 

argues these claims together, the court takes them in turn. 

1. Sexual Abuse Diagnosis Absent Physical Evidence 

Because no Supreme Court precedent is directly on point that 

corresponds to the facts of this case, the court uses the general 

two-part test established by the Supreme Court to determine 

whether petitioner received ineffective assistance of counsel. 

Knowles v. Mirzayance, 556 U.S. 111, 122-23 (2009). First, 

petitioner must show that his counsel's performance fell below an 

objective standard of reasonableness. Strickland v. Washington, 

466 U.S. 668, 686-87 (1984). Due to the difficulties in 

evaluating counsel's performance, courts must indulge a strong 

presumption that the conduct falls within the "wide range of 

reasonable professional assistance." Id at 689. 

Second, petitioner must show that his counsel's performance 

prejudiced the defense. The appropriate test for prejudice is 

whether the petitioner can show "that there is a reasonable 

probability that, but for counsel's unprofessional errors, the 

9 - OPINION AND ORDER 
result of the proceeding would have been different." Id at 694. A 

reasonable probability is one which is sufficient to undermine 

confidence in the outcome of the trial. Id at 696. When 

Strickland's general standard is combined with the standard of 

review governing 28 U.S.C. § 2254 habeas corpus cases, the result 

is a "doubly deferential judicial review." Mirzayance, 556 U.S. 

at 122. 

Petitioner's trial attorney testified during petitioner's 

PCR proceedings and explained why he did not object to Dr. 

Kyriakos' sexual abuse diagnosis where it was unsupported by any 

physical evidence. "[M]y understanding is that I tried the case 

according to the law as it existed in January of '07. If I'm 

wrong about that, please let me know. But I believe in January of 

2007 you were allowed to do that." Respondent's Exhibit 135, p. 

68. He "thought the law was bad" but "did not anticipate there 

was going to be anytime soon a change in that law." Id at 69. The 

PCR court resolved the issue as follows: 

The case was tried in 2007. State vs. 

Southard was decided in 2009. At the time of 

trial, case law allowed experts from Kids 

Care to testify to a diagnosis of child 

sexual abuse. Any objection to that testimony 

would have been overruled so it was not an 

error by the attorney not to make a useless 

objection. It would also have been allowed to 

examine and cross examine the witnesses as to 

the basis for the diagnosis. 

Respondent's Exhibit 136, p. 2. 

Petitioner asserts that Southard was simply an application 

of decades of prior Oregon Supreme Court precedent, but this is 

not the case. At the time of petitioner's trial, the Oregon Court 

10 - OPINION AND ORDER 
of Appeals had clearly rejected the argument that ultimately 

prevailed in Southard. See, e.g., State v. Wilson, 121 Or. App. 

460, 855 P. 2d 657, rev. denied, 318 Or. 61, 865 P. 2d 1267 (1993) 

(medical diagnosis of sexual abuse without physical evidence was 

an opinion that might sway jurors, but did not amount to a 

"direct comment on the child's credibility.") (italics in 

original). As the Oregon Court of Appeals explained in the wake 

of Southard, "the rule regarding expert testimony as to a 

diagnosis of child sexual abuse was exemplified in 

[Wilson]. " Umberger v. Czerniak, 232 Or. App. 563, 564, 222 

P.3d 751 (2009), rev. denied, 348 Or. 13 (2010). That is to say, 

until Southard, a medical expert's diagnosis of sexual abuse in 

the absence of supporting physical evidence constituted 

permissible testimony in Oregon. Id. 

Although petitioner asserts that the Oregon Court of 

Appeals' decisions pre-Southard were wrongly decided, it is not 

the province of a federal habeas court to interfere with a statecourt interpretation of state law. See Estelle v. McGuire, 502 

U.S. 62, 67-68 (1991). For this reason, the court is also not in 

a position to disagree with the PCR court's conclusion that an 

objection would have been "overruled" and "useless" in the 

context of this case. Given this state-court interpretation of 

state law, the PCR trial court's decision is neither contrary to, 

nor an unreasonable application of, clearly established federal 

law. 

Ill 

Ill 

11 - OPINION AND ORDER 
2. Impermissible Vouching 

Petitioner next asserts that trial counsel should have 

objected to various statements from Glesne and Kyriakos because 

they focused on whether LK's report of abuse displayed the 

characteristics of a reliable, credible disclosure. As recounted 

in the Background of this Opinion, these two experts both 

testified regarding the manner in which LK described the abuse 

she suffered, leading them to conclude that she had been the 

victim of sexual abuse. 

Counsel did not believe that the statements warranted an 

objection. Respondent's Exhibit 135, pp. 122-23. With respect to 

Dr. Kyriakos' testimony that LK was able to provide a highly 

detailed account and was consistent in her core details over 

time, counsel said, "I don't like it at all, but I think under 

the laws that existed then, it was probably admissible. She was 

coming close to saying, 'I - I think this child is telling the 

truth. '" Id at 126-27. Counsel stated that he understood 

that under Oregon law at the time of petitioner's trial, "clearly 

a witness could not vouch and say, 'I believe another witness is 

telling the truth or they' re lying.'" Id at 127. He was not, 

however, of the opinion that the testimony at issue amounted to 

this kind of direct statement on credibility, but was instead 

"sort of borderline" such that "an objection made in front of the 

jury, it would draw attention to this testimony and quite 

possibly make things worse." Id at 128. 

The PCR court found petitioner's strategy to be a reasonable 

one: 

12 - OPINION AND ORDER 
Both sides questioned witnesses and argued 

how an abused child would behave. Pet's 

attorney argued that if really abused, Child 

would have gone to her grandmother's instead 

of spending the night, would have reported it 

immediately, wouldn't have babysat again for 

pet., would not have called him for a ride or 

accepted a ride. These were all necessary 

defense points. The attorney could not have 

objected to that line of questioning from the 

DA and then expected to get it in for the 

Pet. No inadequacy on the part of the 

attorney. Reasonable strategy. 

Respondent's Exhibit 136, p. 2. 

It is not clear that trial counsel needed to allow the 

expert statements at issue in order to make the defense points 

the PCR court identifies, all of which were available from nonexpert sources. Nevertheless, given the state of the law at the 

time of petitioner's trial, counsel reasonably believed that an 

objection was not warranted. 

In State v. Middleton, 294 Or. 427, 438 (1983), the Oregon 

Supreme Court stated, "We expressly hold that in Oregon a 

witness, expert or otherwise, may not give an opinion on whether 

he believes a witness is telling the truth." However, this 

holding did not constitute a total ban against expert testimony 

regarding the indicia of reliability of a victim's statements. In 

Middleton, the Oregon Supreme Court provided that "if a witness 

is accepted as an expert by the trial court, it is not error to 

allow testimony describing the reaction of the typical child 

victim of familial sexual abuse and whether a testifying 

victim . reacted in the typical manner. " Id. 

13 - OPINION AND ORDER 
In the wake of Middleton, Oregon courts continued to allow 

indirect comments on the credibility of a victim in child sexual 

abuse cases. See, e.g., State v. Hilaire, 775 P.2d 876 (1989) 

(police officer testifying to typical behavior of child sex abuse 

victim); State v. Butterfield, 874 P.2d 1339, 1345-46 (1994) 

(changing explanations for injures a "classis diagnostic 

indicator"); State v. Arnold, 893 P.2d 1050, 1053 (1995) (victim 

was "spontaneous" and "eager to disclose"); State v. Remme, 23 

P.3d 374, 383 (2001) (expert could provide "useful, nonconclusive 

information from which inferences as to credibility may be 

drawn"). Thus, the Oregon Supreme Court's Southard decision in 

2009 constituted a significant shift in the law when it forbade 

the admission of medical diagnoses of sexual abuse based only on 

whether the expert believed the victim was telling the truth. 

One year after Southard, the Oregon Supreme Court went a 

step further when it again addressed the admissibility of expert 

statements touching on credibility in the context of a sexual 

abuse conviction. In Lupoli, the Oregon Supreme Court stated that 

it would ordinarily be proper for experts to testify as to: (1) 

whether a victim's statements were developmentally appropriate 

for her age; (2) the victim's demeanor and any changes in that 

demeanor; ( 3) whether the disclosure contained any spontaneous 

and descriptive details; and (4) circumstances indicating the 

child's suggestibility or the possibility she was coached 

regarding her allegations. 348 Or. at 362. However, while it 

found that this kind of testimony could assist a jury, it 

concluded that such testimony would not be proper where it was 

14 - OPINION AND ORDER 
intertwined with an expert medical diagnosis of sexual abuse in 

the absence of corroborating physical evidence. In other words, 

in a post-Southard world, indirect comments on the credibility of 

the accuser that would ordinarily be proper would no longer be 

admissible in cases that also involved a medical diagnosis of 

sexual abuse in the absence of supporting physical evidence. 

Petitioner's claim of ineffective assistance of counsel must 

be viewed through a pre-Southard lens because "Strickland does 

not mandate prescience, only objectively reasonable advice under 

prevailing professional norms." Sophanthavong v. Palma teer, 37 8 

F.3d 859, 870 (9th Cir. 2004). Glesne and Kyriakos testified as 

to LK's verbal description of events, how she used her body as a 

reference, the fact that she gave a detailed account, and the 

consistency of the core details over time. Where the Oregon 

Supreme Court had not decided Southard, even in the context of a 

sexual abuse diagnosis without any supporting physical evidence, 

these were the kinds of permissible, indirect statements that 

properly pertained to credibility. As the Oregon Supreme Court 

recognized in Middleton, "Much expert testimony will tend to show 

that another witness is telling the truth. This, by itself, will 

not render evidence inadmissible." 294 Or. at 435 (internal 

citation omitted). 

Trial counsel testified that he believed these statements 

were admissible at the time of petitioner's trial, and his belief 

is supported by Oregon law. 1 Consequently, without the benefit of 

1 As petitioner points out, counsel did object in one instance when Glesne 

testified that the victim's "verbal response adds to the reliability of the 

child's statement. 0 Trial Transcript, p. 1230. Counsel successfully objected 

15 - OPINION AND ORDER 
the Southard and Lupoli decisions, counsel was under no duty to 

object. Accordingly, the PCR court's decision did not 

unreasonably apply clearly established federal law when it denied 

relief on this claim. 

C. Ground 2(C) (9): Prosecutors Comments During Closing 

As his final claim, petitioner alleges that the prosecutor's 

comments on his silence identified in the Background of this 

Opinion were improper insofar as they highlighted for the jury 

that petitioner did not assert his innocence at the time of his 

arrest. Petitioner faults trial counsel for not objecting or 

moving for a mistrial. 

Trial counsel testified as to this issue during petitioner's 

PCR hearing. He indicated that, as a general matter, whether he 

would object during a prosecutor's opening or closing arguments 

"depends on how egregious things are. I objected during final 

arguments in cases that were lost. And I sometimes try to analyze 

what happened. I thought that it hurt." Respondent's Exhibit 135, 

p. 83. With respect to the specifics of petitioner's case, 

counsel reviewed the relevant passage and explained as follows: 

Huh. That is close. My judgment is that it 

would have done more harm, to be effective at 

that point, than it would have helped us, 

especially - yeah, in that case. 

If we had 

sustained 

instruction, 

harmful. 

let's say I were to object, 

and asked for a curative 

I just think it would be 

"to this witness talking about the reliability of a person's statement." Id. 

This objection to a direct opinion pertaining to reliability is consistent 

with counsel's view of Oregon law at the time of petitioner's trial. 

16 - OPINION AND ORDER 
It was -- this was sort of just -- the jury 

knew what had happened. They knew that, you 

know, there'd been these phone calls and 

said, "Round up [petitioner's daughter], 

don't let her talk to the police." Obviously, 

they knew he had made statements. 

So in my judgment, it would have underscored 

this. It would have made it look like it was 

something that we thought was powerfully 

damaging and had to control and therefore 

should in fact be more powerful and 

meaningful to the jury (inaudible). 

Id at 85-86. 

The PCR court agreed: 

The DA comment was that after his 

arrest, pet didn't deny the charges. This is 

much more likely to have been seen as a 

comment on his right to remain silent and 

would most likely have been sustained. 

Attorney testified that he did not wish to 

call attention to it by making an objection 

in front of the jury. That is more 

problematic, but if he had made the objection 

and it had been sustained, then what? A 

curative would have emphasized it to the 

jury. Attorney could have moved for a 

mistrial and it would have been arguable, but 

there is nothing to indicate that attorney 

wanted a mistrial in this case. It appears 

that he thought it was going well and there 

is no evidence to the contrary. His decision 

not to object then becomes a reasonable one. 

Respondent's Exhibit 136, p. 3. 

Petitioner claims that where it is obviously improper to 

comment on a criminal defendant's silence, Doyle v. Ohio, 426 

U.S. 610 (1976), a successful objection to the prosecutor's 

improper comments on his silence would not have posed any 

downside to his defense. However, counsel's decision not to 

object was based, in part, on his perception of the prosecutor's 

17 - OPINION AND ORDER 
comment as "one o f these things where it' s very mild . it 

obviously wasn 't a direct comment on its way to (inaudible) such 

as what this guy got a lawyer or what innocent person woul d 

do such a thing . u Respondent ' s Exhibit 135, p . 83. Counsel 

therefore believed that even a s uccessful objection might have 

been amounted to a Pyrrhi c victory where it served to highl ight 

the issue of petitioner's silence for t he j ury . This court views 

counsel 's strategy as an appropriate one. Strickland, 466 U.S. at 

689. At a minimum, petitioner has not shown that the PCR court's 

decision was so clearly erroneous that no f airminded jurist could 

agree with it. Richter, 562 U. S. at 102 . Accordingly , the PCR 

court' s decisi on to deny relief on this c laim is neither contrary 

to, nor an unreasonable appli cation of, clearl y established 

fede ral law. 

CONCLUSION 

For the reasons i dentifi ed above, the Amended Petition for 

Writ of Habea s Corpus (#16) is denied. The court grants a 

Certificate o f Appealability only as to the issues addressed in 

Secti on III (B) & III (C) of this Opinion . 

IT IS SO ORDERED . 

DATED this _]Q day of August , 2017 . 

Judge 

18 - OPINION AND ORDER