NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________________ No. 16-3436 _______________

MICHAEL DAVIS, Appellant

v.

SUPERINTENDENT GRATERFORD SCI; ATTORNEY GENERAL PENNSYLVANIA,

________________________ On Appeal from the United States District Court for the Western District of Pennsylvania District Court No. 2-13-cv-01744 District Judge: Honorable Maurice B. Cohill, Jr. ______________________

Argued: March 12, 2019 _______________

Before: MCKEE, PORTER, and ROTH, Circuit Judges

(Opinion filed: January 7, 2021) Lisa B. Freeland Elisa A. Long Samuel G. Saylor [Argued] Office of Federal Public Defender 1001 Liberty Avenue 1500 Liberty Center Pittsburgh, PA 15222

Counsel for Appellant

Keaton Carr Daniel A. Vernacchio [Argued] Ronald M. Wabby, Jr. Allegheny County Office of District Attorney Room 401 436 Grant Street Pittsburgh, PA 15219

Counsel for Appellees

______________

OPINION* ______________

McKee, Circuit Judge. Davis seeks habeas review of his state convictions arising from charges that he

sexually abused a minor. He seeks relief under

based on several claims

of ineffective assistance of trial counsel. The District Court concluded that the claims

were either procedurally defaulted or had been correctly decided by the reasonable

* This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not constitute binding precedent.

2 application of Supreme Court precedent in state court. App. 1-2, 20-26. For the reasons

that follow, we will affirm the district court.1

I.

Davis argues he is entitled to the narrow exception fashioned in Martinez v. Ryan

to excuse procedurally defaulted claims of ineffective assistance of trial counsel.2 In

Strickland v. Washington,3 the Supreme Court held that a defendant claiming a violation

of the Sixth Amendment’s right to counsel must show that “counsel’s representation fell

below an objective standard of reasonableness,”4 and that there is “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.”5

For the purposes of this appeal, we will assume that Davis’s claims fall within the

narrow Martinez exception. We nevertheless hold that he is not entitled to relief because

none of his three claims of ineffectiveness satisfy Strickland.

A.

1 The District Court had jurisdiction under

. We have appellate jurisdiction under

and 2253. Our review is plenary and will apply the same standard used by the district court because it did not conduct an evidentiary hearing. Dennis v. Sec’y, Pa. Dep’t of Corr.,

(3d Cir. 2016). 2

(2012) (requiring that (1) the claim has some merit and (2) collateral review counsel was ineffective under the standards of Strickland v. Washington). 3 Strickland v. Washington,

(1984). 4

. 5

.

3 The victim (C.H.) did surprise defense counsel during cross examination by

disclosing that she “wrote days down when [they] had sex” in her journal, and this

allowed the prosecutor to admit the journal entry.6 However, counsel elicited the

unexpected response through a reasonable line of questioning. He was attempting to

impeach C.H. based upon inconsistencies in her testimony on direct. App. 115-16, 123,

127. Although Davis now claims that this “opened the door” to the prosecutor admitting

the journal entry, counsel’s questions were a reasonable way to undermine C.H.’s

credibility.7

Moreover, counsel made a reasoned decision not to move for a mistrial. “[A]

court must indulge a strong presumption that counsel's conduct . . . might be considered

sound trial strategy.”8 Here, we cannot assume a mistrial would have been granted given

the court’s willingness to grant only a continuance to allow trial counsel an opportunity to

examine the surprise entry. App. 147-48. Moreover, counsel may well have considered

the fact that a retrial would provide an opportunity for C.H. to refresh her recollection

and to explain the apparent discrepancies between her journal entries and testimony.

. 7 Appellant’s Br. 40. Trial counsel did not claim that the portions of the journal were withheld in bad faith and the prosecutor offered to produce testimony that would establish that the omission was inadvertent. Thus, trial counsel’s decision to cross examine C.H. about inconsistencies between her testimony and journal entries was not only reasonable but necessary. Davis had to raise a reasonable doubt about C.H.’s truthfulness. The inconsistencies arising from the journal entries clearly seemed like the best (and perhaps only) way to do that. 8 Strickland,

(internal quotation marks and citation omitted).

4 B.

Similarly, trial counsel’s failure to object to questions insinuating he was a drug

dealer also fails to satisfy Strickland. Had trial counsel objected, the prosecutor may well

have been able to introduce Davis’s pending drug charges and C.H.’s statement to

forensic interviewers at the Children’s Hospital: “I don’t know (didn’t know) what he’s

capable of cause he’s a drug dealer and stuff.”9 Such evidence, combined with the fact

that Jefferson had a history of drug addiction, may have been a proper foundation for the

prosecutor’s drug dealer inquiries. It was clearly better to simply allow Jefferson and

Davis to deny those insinuations than to risk allowing the jury to hear evidence that

would have established a proper foundation for those questions.

C.

Finally, Davis contends trial counsel was ineffective for not introducing evidence

that C.H. had an intact hymen. This also fails the first Strickland prong. Davis argues that

the medical staff described C.H.’s hymen as “thick [and] redundant” with “no notches”

and “no lesions.”10 The exam report also contained an assessment that “there were no

physical findings of abuse.”11 But that ignores the fact that the report qualified that

statement by explaining that “80–90% of children with known sexual abuse have normal

9 Appellee’s Br. 39.

. 11

.

5 exams due to the elasticity [and] distensibility of the hymenal tissue.”12 The report

cautioned that “[t]he medical findings are not conclusive to support or disprove

allegations of abuse.”13

Thus, the fact that C.H.’s hymen did not evidence trauma is inconclusive and fails

to establish prejudice as required by Strickland. Perhaps more importantly, the visit

summary states that C.H. went to the hospital “due to [a] series of alleged sexual assaults

[over] past 5-6 months . . . [by an] adult male – allegedly mom’s drug dealer . . . .

Reports vaginal, oral, anal intercourse.”14 Accordingly, not only was the hospital record

inconclusive as to C.H.’s trauma, part or all of it may have been admissible against Davis

as a prior consistent statement by C.H. Whether or not the court would have allowed that,

it clearly was reasonable—and probably advisable—for trial counsel to avoid wading into

those troubled waters.

II.

For the reasons set forth above, we will affirm the District Court’s denial of

Davis’s habeas petition.

12

13

. 14

.

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