Routy Abernathy v. Ray Hobbs, 748 F.3d 813

Routy Abernathy was convicted by an Arkansas jury of raping two minor nieces (ages 10 and 11) based largely on the victims' testimony; there was no physical evidence and the victims initially denied the assaults.
A prior uncharged victim (M.S.) testified under Arkansas's pedophile-exception to Rule 404(b); a physician assistant (Cheryl Green) examined M.S. and found no physical evidence.
During cross-examination Green was asked and said she believed M.S.; defense counsel did not object to the vouching question/answer despite a pretrial motion in limine barring testimony on witness credibility.
In opening statement defense counsel told the jury he would not call Abernathy to testify unless he believed the State had proven its case beyond a reasonable doubt; Abernathy nevertheless testified at trial and denied the allegations.
Abernathy exhausted state remedies (direct appeal and Rule 37 post-conviction relief) and then filed a 28 U.S.C. § 2254 habeas petition alleging ineffective assistance of counsel on four grounds; the district court dismissed the petition but granted a certificate of appealability on two issues (expert vouching; opening-statement remark).
The Eighth Circuit affirmed, applying AEDPA deference together with Strickland’s ineffective-assistance framework and finding the state-court rulings were neither unreasonable applications of federal law nor unreasonable fact determinations.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Counsel ineffective for failing to object to expert vouching for M.S.	Abernathy: failure to object allowed improper credibility vouching that prejudiced the jury.	State/Arkansas courts: jurors were instructed they decide witness credibility; counsel challenged credibility in closing; no prejudice shown.	Court held: no Strickland prejudice; state court reasonably applied law; habeas denied.
Counsel ineffective for telling jury in opening that defendant would not be called unless state proved case, then defendant testified	Abernathy: remark effectively conceded proof and prejudiced his defense.	State/Arkansas courts: statement was tactical (to defuse jury animus); opening statements are not evidence; no prejudice.	Court held: no Strickland prejudice; state court’s conclusion was reasonable; habeas denied.

Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel: deficient performance and prejudice)
Williams v. Taylor, 529 U.S. 362 (2000) (framework for § 2254 review under AEDPA and application of Strickland)
Cullen v. Pinholster, 563 U.S. 170 (2011) (limits on federal habeas review of state-court decisions under AEDPA)
Engesser v. Dooley, 457 F.3d 731 (8th Cir. 2006) (curative effect of jury instruction where witness vouching occurred)
Oleson v. Class, 164 F.3d 1096 (8th Cir. 1999) (expert testimony about child-victim credibility did not render trial fundamentally unfair)
Adesiji v. State of Minnesota, 854 F.2d 299 (8th Cir. 1988) (in § 2254 context, expert testimony on child-victim trustworthiness did not require reversal)