FILED
NOT FOR PUBLICATION
OCT 22 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES FRANKLIN GLASSCOCK, No. 17-35390
Petitioner-Appellant, D.C. No. 2:14-cv-00016-SI
v.
MEMORANDUM*
JERI TAYLOR,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Submitted October 11, 2018**
Portland, Oregon
Before: FISHER, CLIFTON and CALLAHAN, Circuit Judges.
Charles Glasscock appeals the judgment of the district court dismissing his
28 U.S.C. § 2254 federal habeas petition. We have jurisdiction under 28 U.S.C. §
1291, we review de novo, see Hasan v. Galaza, 254 F.3d 1150, 1153 (9th Cir.
2001), and we affirm.
*
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).
1. The district court properly rejected Glasscock’s claim that trial
counsel rendered ineffective assistance of counsel by failing to present expert
testimony to rebut the state’s medical evidence. The state court reasonably applied
Strickland v. Washington, 466 U.S. 668 (1984), in concluding that trial counsel
performed adequately by failing to call a psychological expert to testify about the
reasons children may misreport child abuse. Because the jury had adequate
information to assess the victim’s credibility without this additional testimony,
counsel’s decision fell “within the wide range of reasonable professional
assistance.” Id. at 689.
In light of the doubly deferential standard of review, moreover, we cannot
say the state court unreasonably applied Strickland by concluding counsel
performed adequately by failing to call a psychological expert to opine regarding
the effects of confirmatory bias on medical examinations. See Knowles v.
Mirzayance, 556 U.S. 111, 123 (holding both AEDPA and Strickland’s deferential
standards apply when a federal court reviews a state court’s Strickland
determination under AEDPA).
The state court also reasonably concluded trial counsel permissibly elected
not to call a medical expert to rebut the state’s evidence that the victim had injuries
consistent with sexual abuse. Glasscock has not shown how such testimony would
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have supported the defense or offered alternative explanations for the victim’s
injuries. See Gallegos v. Ryan, 820 F.3d 1013, 1035 (9th Cir. 2016) (sustaining the
state court’s determination that trial counsel was not ineffective where the
petitioner did not adduce any expert testimony in state post-conviction proceedings
to undermine the state’s medical expert).
2. The district court properly rejected Glasscock’s claim that trial
counsel rendered ineffective assistance of counsel by failing to seek curative action
in response to alleged prosecutorial misconduct during closing argument.
Even if the prosecutor’s remarks urging the jury to “protect” the victim were
improper, the failure to object to them was within the range of professional
conduct. See Cunningham v. Wong, 704 F.3d 1143, 1159 (9th Cir. 2013)
(“Because many lawyers refrain from objecting during opening statement and
closing argument, absent egregious misstatements, the failure to object during
closing argument and opening statement is within the ‘wide range’ of permissible
professional legal conduct.”).
The prosecution, moreover, did not improperly vouch for the victim’s
credibility. The prosecutor simply asked the jury to infer from the evidence that
the prosecution’s witnesses were credible. See United States v. Molina, 934 F.2d
1440, 1444 (9th Cir. 1991) (“[T]he prosecution must have reasonable latitude to
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fashion closing arguments. Inherent in this latitude is the freedom to argue
reasonable inferences based on the evidence.”). Given the context, the
prosecutor’s remarks were comments on the evidence rather than assertions of
personal belief. See United States v. Garcia-Guizar, 160 F.3d 511, 521 (9th Cir.
1998).
As to the prosecution’s remarks about what children typically know and
disclose about sexual abuse, prosecutors may properly refer to matters not in the
record if they are “within the common knowledge of all reasonable people.”
United States v. Candelaria, 704 F.2d 1129, 1132 (9th Cir. 1983) (holding the
prosecutor’s remarks that the defendant would likely not have been joking about a
bomb threat “in this day [and] age,” were about matters within common knowledge
and thus not improper). Moreover, although trial counsel did not object to the
remarks during the prosecution’s presentation, he addressed them during his own
closing. See Demirdjian v. Gipson, 832 F.3d 1060, 1072 (9th Cir. 2016) (holding
the state court reasonably could have presumed that trial counsel “made a strategic
decision to address the prosecution’s comments directly [in his rebuttal] instead of
objecting”). Accordingly, we cannot conclude trial counsel performed deficiently
under Strickland. At minimum, we cannot say the state court unreasonably applied
Strickland in concluding counsel performed adequately.
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3. Because there was no error, the district court properly rejected
Glasscock’s claim of cumulative error.
AFFIRMED.
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