Frost v. Pryor, 2014 U.S. App. LEXIS 7782

Background

Kenneth Frost was convicted in Kansas state court (2005) of aggravated indecent liberties with a child based primarily on the child’s testimony and corroborating therapy/Sunflower House interviews; jury sentenced Frost to 204 months.
Frost’s trial counsel failed to obtain the child’s medical records showing prior treatment for encopresis years before Frost met the family and a school note attributing accidents to milk; Frost had requested those records pretrial.
Defense argued encopresis supported innocence or explained behavior; prosecution argued encopresis began after Frost moved in and corroborated abuse. Counseling/social-worker testimony largely corroborated the child’s account.
Frost moved for a new trial claiming ineffective assistance for failure to obtain records; the state trial court denied relief; Kansas Court of Appeals (KCOA) found deficient performance but no prejudice; Kansas Supreme Court denied review.
Frost filed a federal habeas petition under 28 U.S.C. § 2254. The district court, applying AEDPA deference, denied relief on the medical-records ineffective-assistance claim and dismissed three other claims as procedurally barred; it granted a COA only on the medical-records issue.
On appeal, the Tenth Circuit affirmed denial of habeas relief on the medical-records claim under AEDPA (concluding the KCOA’s prejudice ruling was not an unreasonable application of Strickland) and denied COA on the remaining procedurally barred claims.

Issues

Issue	Frost’s Argument	State/Respondent’s Argument	Held
Whether counsel’s failure to obtain child’s medical records violated Sixth Amendment (ineffective assistance)	Failure to obtain records was objectively unreasonable and prejudiced the defense because the records impeached mother and undermined encopresis–abuse linkage	Counsel’s failure was deficient but records would not create a reasonable probability of a different result given the child’s consistent testimony and other corroboration	Affirmed denial of habeas relief: KCOA’s prejudice ruling not an unreasonable application of Strickland under AEDPA
Whether KCOA applied an impermissible preponderance/acquittal standard instead of Strickland’s reasonable-probability test	KCOA used “would have” language suggesting a more-likely-than-not standard	KCOA elsewhere recited Strickland standard; wording did not render decision contrary to Supreme Court precedent	Rejected: KCOA did not apply a contrary standard to Strickland
Whether other claims (failure to elicit testimony about mother’s threats; prosecutorial misconduct) are reviewable on federal habeas	Claims have constitutional merit and warrant consideration	Claims were not presented to Kansas Supreme Court and are now procedurally defaulted/untimely under state rules; no cause or actual-innocence showing	Denied COA; district court’s procedural-bar rulings not debatable by reasonable jurists
Whether Frost made a credible actual-innocence showing to overcome procedural bar	Medical records and alleged threats undermine prosecution to the point that no reasonable juror would convict	The new evidence is largely impeachment and does not make it more likely than not that no reasonable juror would have convicted	Denied: petitioner did not meet Schlup standard for actual innocence

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance: deficient performance and prejudice)
Williams v. Taylor, 529 U.S. 362 (2000) (§ 2254(d) “contrary to” and “unreasonable application” standards explained)
Harrington v. Richter, 562 U.S. 86 (2011) (AEDPA deference; state-court decisions must be given the benefit of the doubt)
Cullen v. Pinholster, 563 U.S. 170 (2011) (federal habeas review under § 2254(d) generally limited to the state-court record)
Miller-El v. Cockrell, 537 U.S. 322 (2003) (standard for Certificate of Appealability and deference in federal habeas review)
O’Sullivan v. Boerckel, 526 U.S. 838 (1999) (exhaustion requires one full round of state appellate review)
Schlup v. Delo, 513 U.S. 298 (1995) (demanding actual-innocence gateway standard to overcome procedural default)
Wiggins v. Smith, 539 U.S. 510 (2003) (illustrative ineffective-assistance prejudice standard in capital mitigation context)