Petition for Writ of Certiorari — Jeremy Shane Hall, Petitioner v. John Myrick, Superintendent, Two Rivers Correctional Institution

No.

IN THE SUPREME COURT

OF THE UNITED STATES

JEREMY SHANE HALL,

Petitioner,

v

JOHN MYRICK, Superintendent,

Two Rivers Correctional Institution,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Nell Brown

Assistant Federal Public Defender

101 SW Main Street, Suite 1700

Portland, Oregon 97204

(s03) 326-2123

Attorney for Petitioner

QUESTION PRESENTEI)

Whether a court can disregard record evidence of the prevailing

professional norms in assessing the reasonableness of counsel's action

or inaction under the Sixth Amendment.

TABLE OF CONTENTS

Page

OPINIONS BELOW

2

JURISDICTIONAL STATEMENT

2

CONSTITUTIONAL AND STATUTORY PROVISIONS

2

STATEMENT OF TFIE, CASE

J

a

J

A. State Trial Court Proceedings

B. At The Time of Petitioner's Trial, Oregon Criminal Defense

Attorneys Regularly Challenged Expert Sexual Abuse "Diagnosis"

Testimony Because The Law Provided Reason To Believe Such

4

Challenges Were Promising.

C.

D.

State Post-Conviction Court Proceedings

6

Federal Habeas Corpus Proceedings...........

8

REASONS FOR GRANTING THE WRIT.....

9

A.

The Ninth Circuit Disregarded This Court's Requirement That The

Reasonableness Of Counsel's Conduct Is Judged According To The

Then-Prevailing Profes sional Norm

10

B.

In The Altemative, This Court Should Hold This Case In Abeyance

16

Until It Decides Ramos v. Louisiana...........

t7

CONCLUSION

APPENDICES

Appendix A:

Memorandum Opinion of the United States Court of Appeals

for the Ninth Circuit (10125118)

Appendix B:

Opinion and Order, and Judgment of the United States District

Court for the District of Oregon in Hall v. Myrick, Case No.

3 : 1 5-cv-00060-MO (81301 17)

Appendix C:

Order of the United States Court of Appeals for the Ninth

Circuit (1116l19)

1

TABLE OF AUTHORITIES

Cases

Page(s)

Hinton v. Alabama,

s71 U.S. 263 (20t4)

12

Jqcksonv. Francke,

364 Or.3r2 (2018)

4, 12,13

Lockhart v. Fretwell,

s06 u.s. 364 (t993)

15

McKee v. United States,

167 F.3d r03 (2dCk. 1999)

t6

Montana v. Wyoming,

s63 U.S. 368 (2011)

13

State v. Lupoli,

234P.3d 1r7 (2010)

6-8, 14-15

State v. Southard,

218 P.3d r04 (200e)

5-8, 1 l, 13-15

Strickland v. Washington,

466 U.S. 668 (1e84)

2,9, 70, 11 , 14-15

Wiggins v. Smith,

s3e u.s. s10 (2003)

2,10

1r

No.

IN THE

SUPREME COURT OF THE UNITED STATES

JEREMY SHANE HALL,

Petitioner,

v.

JOHN MYRICK, Superintendent,

Two Rivers Correctional Institution,

Respondent.

On Petition For Writ Of Certiorari To

The United States Court Of Appeals

For The Ninth Circuit

The petitioner, Jeremy Hall, respectfully requests that a writ of certiorari issue

to review the judgment of the United States Court of Appeals for the Ninth Circuit

entered on January 16,2019.

1

OPINIONS BELOW

On Octob er 25,201 8, the United States Court of Appeals for the Ninth Circuit

denied habeas corpus relief in a memorandum opinion affirming the District Court

decision without addressing record evidence of the prevailing professional norms.

Appendices A, B. On January 16,2019, the Ninth Circuit panel denied Petitioner's

motion for rehearing and rehearing en banc. Appendix C.

JURISDICTIONAL STATEMENT

This Court has jurisdiction pursuant to 28 U.S.C. S 1254(1)

CONSTITUTIONAL AND STATUTORY PROVISIONS

The Sixth Amendment provides: "In all criminal prosecutions, the accused

shall enjoy the right . . . to have the assistance of counsel for his defense."

"When a convicted defendant complains of the ineffectiveness of counsel's

assistance, the defendant must ffirst] show that counsel's representation fell below

an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668,

687-88 (1e84).

This Court has "declined to articulate specific guidelines for appropriate

attorney conduct and instead [has] emphasized that '[t]he proper measure of attorney

performance remains simply reasonableness under prevailing professional norms."'

wiggins v. smith,539 u.s. 510,521(2003) (citing strickland,466 u.s. at 688).

2

STATEMENT OF THE CASE

A.

State Trial Court Proceedings.

In2007, Petitioner was tried on charges of inappropriate sexual contact. The

alleged victim testified that Petitioner had touched her inappropriately with his

hands. There was no physical evidence to corroborateher allegation. Petitioner also

testified, denying any improper conduct. The only other person in the room during

the alleged conduct, Petitioner's daughter, testified she witnessed nothing improper.

The central question attrial was whether the alleged victim was credible

To bolster its case for the alleged victim's credibility, the State called, as

experts, two evaluators, a physician and an interviewer, who had physically

examined and interviewed the alleged victim in response to her allegations

Although the physical examination was normal, the physician diagnosed the alleged

victim as having been "sexually abused" based solely on the interview. In other

words, the physician believed the alleged victim. Without objection from defense

counsel, the physician testified at trial that she determined "to a reasonable degree

of medical certainty" that the alleged victim had been "sexually abused." F,P.223.

The physician and interviewer also testified, without objection, to the characteristics

of the alleged victim's statement that caused them to believe her. ER 143-50,22729

J-

Although the jury could not reach a unanimous verdict, it nevertheless

convicted Petitioner under Oregon's non-unanimous jury system, and Petitioner was

sentenced to nearly nineteen years in prison. ER 358-59,361-77 . Petitioner's appeal

did not include the unpreserved challenge the expert testimony. ER 381.

B

At The Time of Petitioner's Trial, Oregon Criminal Defense Attorneys

Regularly Challenged Expert Sexual Abuse "Diagnosis'o Testimony

Because The Law Provided Reason To Believe Such Challenges Were

Promising.

At the time of Petitioner's trial, there was "tension" between Oregon Supreme

Court precedent and the decisions of Oregon's lower courts that had admitted expert

diagnosis testimony, and the question presented in this case had been left open.l As

a result, Oregon criminal defense attorneys were regularly challenging so-called

"diagnosis" testimony by sexual abuse evaluators in cases, like Petitioner's, where

the physical examination did not show signs of abuse. Attomeys were challenging

diagnosis testimony on the grounds that it was improper expert testimony; that it

vouched for the victim's credibility; and that it was unduly prejudicial. These

challenges were based in longstanding principles from decisions of Oregon's highest

I Jackson v. Francke,364 Or. 372,329 (2018) (explainingthat, prior to

Southard and Lupoli, there was an "ongoing tension" between the decisions of the

Oregon Court of Appeals and "several decisions of the Oregon Supreme Court

holding that medical experts were not permitted to vouch for a person who asserted

that the defendant had sexually abused them.").

4

court that made it clear that one witness-expert or otherwise-could not testi$r

about the credibility of another witness. In these situations, the expert's "diagnosis"

was nothing more than the expert testi$ring that he or she believed the alleged

victim's report.

Attorneys routinely made such challenges, despite contrary lower court

decisions, because the Oregon criminal defense bar expected the Oregon Supreme

Court would eventually take up a case and address the issue. This was so because

the intermediate appellate court decisions in this area appeared to deviate from the

principles spelled out in earlier Oregon Supreme Court precedent. If preserved

below, attorneys routinely pursued these challenges on appeal. ER 50-51.

As predicted by the criminal defense bar, while Petitioner's case was pending

on appeal, the Oregon Supreme Court did, in fact, take up a case in this area. In

State v. Southard, Oregon's highest court ruled that experts cannot testifu to their

diagnosis of sexual abuse in cases where there is no corroborative physical evidence

of abuse. 218 P.3d 104 (2009). Southard held that this type of expert "diagnosis"

did not tell the jury anything it could not determine itself. Id. at 111-12. On the

other hand, the expert testimony posed a"great" risk of prejudicing the jury because

the jury might substitute the expert's credibility assessment for its own. Id. at

ll2.

The following year, the Oregon Supreme Court ruled that testimony about the

5

characteristics of the alleged victim's report that led evaluators to diagnose abuse

was also inadmissible. State v. Lupoli,234 P.3d 1 17 (Or. 2010).

C

State Post-Conviction Court Proceedings.

In his state post-conviction case, Petitioner claimed, as he does in this habeas

corpus proceeding, that his trial attorney was ineffective for failing to challenge the

expert testimony. He alleged that, but for his attorney's failure, he would have

prevailed on appeal either because his could have been the case the Oregon Supreme

Court took up, or he could have benefitted from the Southard ruling as did his

contemporaries who raised the issue on appeal atthattime.

The claim was supported by two affidavits of Oregon attorney practitioners.

ER 476-87, 447-55. The first attorney affidavit recited the relevant prevailing

professional norm, stating that, based on the development of the relevant Oregon

law, "all reasonably competent criminal defense lawyers" should have raised an

in limine challenge where "the state was attempting to offer evidence of a medical

diagnosis of sexual abuse where there were no physical findings" at the time of

Petitioner's criminal trial. ER 447.

The same affidavit also attached a motion in limine filed in another case that

was tried contemporaneously to Petitioner's (and also two years before the Southard

decision). ER 449-54. The in limine motion challenged expert sexual abuse

6

diagnosis testimony based on Oregon Supreme Court precedent dating back to the

1980s that repeatedly excluded testimony by one witness about the credibility of

another. ER 45l-54. The motion also distinguished the two Oregon Court of

Appeals cases that had admitted diagnosis testimony, arguing these decisions were

"not controlling." Id. Ultimately, because the attorneys in that case preserved and

pursued a challenge to the expert testimony, the Oregon Court of Appeals summarily

reversed based on Southard. ER3l; see ER 30

Petitioner submitted a second attorney affidavit that detailed the development

of Oregon law in this area, citing the same body of Oregon Supreme Court precedent.

8R478-79,481-82. The attorney aveffed: "The evidentiary rules forming the basis

for the Oregon Supreme Court's recent decisions in lSouthard and Lupoli] were

available before those opinions were rendered. Those rules preclude improper

vouching for the credibility of a witness by characterizing that testimony or

endorsing it in pseudo-scientific language." ER 482. She explained that, although

the ultimate conclusion reached in those cases did not become law until 2009 and

2070, "the principles upon which those decisions relied were widely understood and

pursued by effective defense counsel across this state for many years." Id.

The post-conviction evidence also showed that Petitioner's trial attorney had

no strategic reason not to challenge the expert evidence, and, to the contrary, that

7

challenging the expert's testimony was the "number one" goal of his defense. ER

535. Counsel simply did not recognize the challenges available because he was

unaware of the relevant law, including that there was tension between decisions of

the Oregon Court of Appeals and precedent from Oregon's highest court and that

the law had left an open question on the issue presented by Petitioner's case. Id.

D.

Federal Habeas Corpus Proceedings.

In his petition for a writ of federal habeas co{pus, Petitioner claimed that his

trial attorney was ineffective for failing to challenge the expert's testimony about

her diagnosis of the alleged victim as having been sexually abused. The District

Court denied relief. Appendix B. On October 25,2018, in a memorandum opinion,

the Ninth Circuit affirmed. Appendix A. The Ninth Circuit did not address the

evidence of the prevailing professional norms in assessing the reasonableness of

counsel's failure to object to the expert testimony. Specifically, the Ninth Circuit

ignored evidence that attorneys were routinely raising these objections because, with

good reason, they viewed the issue as a promising issue for appellate relief. Instead,

the Ninth Circuit found that no attorney could have been expected to raise an

objection until after Southard and Lupoli were decided. Id.

8

REASONS FOR GRANTING THE WRIT

This Court should grant the writ of certiorari because the Ninth Circuit's

decision conflicts with decisions of this Court that state that the reasonableness of

counsel's performance be evaluated in light of the relevant standard of care, as

evidenced by the prevailing professional noffns at the time of counsel's conduct

Strickland dictates: "The proper measure of attorney performance remains simply

reasonableness under prevailing professional norms." 466 U.S. at 688. Yet, the

Ninth Circuit utterly disregarded record evidence demonstrating that the prevailing

professional norm at the relevant time was to challenge expert "diagnosis" testimony

in cases like Petitioner's on the grounds that unfavorable lower court decisions were

in tension with earlier, binding precedent from the state's highest court.

In the alternative, this Court should hold this case in abeyance until it decides

the constitutionality of non-unanimous jury verdicts like Petitioner's verdict in

Ramos v. Louisiana, No. 18-5924

9

A.

The Ninth Circuit Disregarded This Court's Requirement That The

Reasonableness Of Counsel's Conduct Is Judged According To The

Then-Prevailing Professional Norm.

In the context of Sixth Amendment ineffective-assistance claims, this Court

has "declined to articulate specific guidelines for appropriate attorney conduct and

instead [has] emphasized that '[t]he proper measure of attomey performance remains

simply reasonableness under prevailing professional norms."' Wiggins,539 U.S. at

521 (citing Strickland,466 U.S. at 688).

The record before the state and federal courts contained evidence of the

prevailing standards, practices and expectations-the professional norms-with

regard to the type of expert testimony at issue here. At the time of Petitioner's trial,

attomeys regularly challenged expert diagnosis testimony based on Oregon Supreme

Court precedent. ER 448, 449-55, 476-82

The Ninth Circuit disregarded this material evidence. Instead, with regard to

counsel's failure to challenge the expert's diagnosis, the Ninth Circuit concluded:

The claim rests on State v. Southard,2IS P.3d 104 (Or. 2009), decided by

the Oregon Supreme Court two years after Hall's trial. Before Southard,

decisions by the Oregon Court of Appeals allowed admission of the

testimony at issue. See, e.g., State v. LVilson, 855 P.2d 657 (Or. Ct. App.

1993); State v. Sanchez-Cruz,33 P.3d 1037 (Or. Ct. App. 2001).

Appendix A. Citing only Oregon's lower court decisions, the Ninth Circuit failed

to address the primary Oregon Supreme Court decisions that provided the basis for

the challenges foregone by Petitioner's counsel. Instead, citing cases that stand for

10

the propositions that"Strickland does not mandate prescience" and counsel "cannot

be required to anticipate [a] decision in a later case," the Ninth Circuit concluded the

state court reasonably concluded that trial counsel was not ineffective. Id

But Petitioner's evidence demonstrated that no Oregon attorney needed to be

prescient to know that challenges to diagnosis testimony were "promising" appellate

issues at the time ofPetitioner's trial. ER 33. Contrary to the Ninth Circuit's finding,

the claim does not "rest" on the Oregon Supreme Court's later decision in Southard.

Nor was Southard the basis for the challenge. Rather, Southard was the result of

attorneys raising available challenges in cases contemporaneous to Petitioner's

The record evidence-which the Ninth Circuit neglected to addressdemonstrates that the basis for the challenge that eventually resulted in the Southard

decision were principles that "were widely understood and pursued by effective

defense counsel across this state" in the decade prior to Southard. ER 482. OnIy by

ignoring the record evidence that the prevailing professional norrn at the time of

Petitioner's trial was to challenge expert diagnosis testimony could the Ninth Circuit

find that counsel had to be "prescient" to challenge the expert testimony in this case

To be prescient is to be prophetic or to have knowledge of future events before

they take place. Counsel did not need to be clairvoyant--or even innovative-to

identifu meritorious challenges to the expert testimony at issue. There were sample

11

motions available. ER 449-55. The issue was discussed at CLEs and on the primary

listserv for the Oregon criminal defense bar. ER 33, 34. Attorneys were being

encouraged to continue to pursue challenges to expert diagnosis testimony until the

Oregon Supreme Court took up the issue. 1d. As one attomey explained: "The fact

of the matter is that we all knew that this was a promising issue, despite the fact that

the Court of Appeals had rejected the issue

))

ER 33. Indeed, the Oregon

Supreme Court has recently assumed without deciding "that an attorney exercising

reasonable professional skill and judgment would have objected to the medical

diagnosis despite" contrary court of appeals decisions. Jackson,364 Or. at32l

To act reasonably under this prevailing standard of care, counsel simply

needed to conduct basic research ofthe law applicable to his client's case. Attorneys

have a basic duty to be familiar with the relevant law and to maintain competence

by keeping abreast of changes in the law and of issues that are percolating in the

courts. Hinton v. Alabqma, 571 U.S. 263,274 (2014). This is the central failure of

counsel in this case. Counsel failed to research the relevant Oregon cases that

provided fodder for a challenge. The Oregon Supreme Court's decisions, none of

which are mentioned in the Ninth Circuit decision and all of which are discussed in

detail in the briefing of this case, collectively foreshadowed that an expert's opinion

on the believability of the alleged victim would be held inadmissible if the issue

T2

were to be decided by the Oregon Supreme Court. See Appellant's Opening Brief,

at35-40

As the criminal defense bar knew, the law in this area would not be settled

until the Oregon Supreme Court ruled. ER 34. That court is the final arbiter of

Oregon law. Montana v. Wyoming, 563 U.S. 368, 377 (2011). Oregon's

intermediate appellate court had deviated from the clear principles set out in these

Oregon Supreme Court decisions in admitting diagnosis testimony in the cases cited

by the Ninth Circuit. See Appellant's Opening Brief, at 40-48. Consequently,

attomeys not only saw reasons to, but also had a basis to, challenge these

intermedi ate appellate court decisions.

Had Petitioner's counsel read the relevant caselaw, counsel also would have

seen that even the Court of Appeals decisions left open the question presented by

Petitioner's case: whether expert diagnosis testimony is permissible when the

diagnosis is based solely on believing the victim because no physical evidence

corroborated the allegation of abuse. See Appellant's Opening Brief, at 44-45; see

also Jackson,364 Or. at 33 n.1 1 (explaining that in the Court of Appeals decision,

"unlike Southard and unlike this case, the diagnosis of sex abuse was corroborated

by physical evidence, which presents a distinct issue.").

13

Further, counsel could have distinguished the lower court cases as "not

controlling" just as was argued in the motion in limine contained in the record. ER

45I. Had counsel actually reviewed those cases, that review would have revealed

major deviations from Oregon Supreme Court precedent. First, the Court of Appeals

did not apply the analysis long required by the Oregon Supreme Court cases for the

admission of expert testimony. Appellant's Opening Brief, at 4I-42. Moreover,

those decisions drew a distinction between "direct" and "indirect" comments on

credibility, despite that Oregon Supreme Court precedent foreclosed drawing such a

distinction. See id. at 41, 47.

This case is not about counsel's failure to see the future or to be prescient or

clairvoyant, or to anticipate an unforeseeable change in the law. This is not a case

about counsel's failure to anticipate a change in the law. Rather, this case is about

an attorney's basic duty to know the law relevant to his client's cause and to act

reasonably under the prevailing professional norms. Other attorneys did basic

research and saw there were challenges to make. This research is exemplified by

the motion in limine inthe record.

Contrary to the Ninth Circuit's effectiveness analysis, what happened after

Petitioner's trial in Southard and Lupoli is immaterial to Strickland's effectiveness

prong analysis. The effectiveness of counsel's conduct is judged according to what

T4

attorneys were doing at the time-in this case, in 2007. Here, there is actual

evidence of what attorneys were doing at this relevant time. To be effective atthat

time, counsel did not need to see the future. He only needed to do what other

attorneys all around him were doing: researching the relevant law or following the

conversation on the professional association list serv. Attorneys who did this knew

to raise challenges under Oregon's procedure for the admission of scientific

evidence and vouching challenges. Contrary to the finding of the Ninth Circuit, an

objection here would not have been "useless" or plainly meritless, nor would it

require counsel to foresee the decision in Southard. The challenges at issue here

were "promising" under the law as it existed at the time of Petitioner's trial. ER 33.

The fact that the challenges counsel neglected here were, in fact, meritorious

and eventually prevailed \n Southard and Lupoli is, however, relevant to Strickland's

prejudice prong. Unlike the performance determination, the prejudice analysis may

be made with the benefit of hindsight. Lockhart v. Fretwell, 506 U.S. 364,372

(1993). Had counsel raised a challenge to the expert testimony here, there is

practical certainty (although he need only show a "reasonable probability") that

Petitioner would have received appellate relief in the form of a new trial. Indeed,

defendants whose attorneys did pursue the same challenge in their 2007 trials,

received new trials on appeal. E.g., ER 30-32. The factthat precisely the same

15

claim was successful on an appeal pursued by a similarly situated litigant is a strong

indication that the failure of Petitioner's counsel to press that claim was prejudicial.

See McKee v. United States,16T F.3d 103, 106-07 (2dCir. 1999)

B

In The Alternative, This Court Should Hold This Case In Abeyance Until

It Decides Rumos v. Louisiana.

Petitioner's Oregon conviction was by a non-unanimous jury in violation of

his rights to due process, to an unbiased jury, and to have the State prove the charges

beyond a reasonable doubt. The verdict and, as a result, Petitioner's convictions

refl ect lingering doubt.

On March 18, 2019,in Ramos v. Louisiana, No. 18-5924, this Court granted

certiorari on the question: "Whether the Fourteenth Amendment fully incorporates

the Sixth Amendment guarantee of a unanimous verdict?" The briefing in Ramos v.

Louisiano is not yet complete. The decision in Ramos could render verdicts like the

one in Petitioner's case unconstitutional

Raising this issue in Oregon has been futile under existing precedent since the

time of Petitioner's trial. However, should this Court answer the question presented

in Ramos in the affirmative, the Court should also find that that ruling applies

retroactively to cases such as Petitioner's. Therefore, in the alternative, Petitioner

requests that this Court hold his case in abeyance until these important issues have

been decided.

t6

CONCLUSION

For the foregoing reasons, a writ of certiorari should be granted. At a

minimum, the case should be held in abeyance pending this Court's decision in

Ramos v. Louisiana.

DATED this 16th day of ApriI, 2019.

{il0Ro^^,l

N.n tgro*"fAssistant Federal Public Defender

Attorney for Petitioner

17