Case Information
*1 Before McCONNELL , ANDERSON , and BALDOCK , Circuit Judges.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
*2 Petitioner-appellant Thomas J. Clardy appeals the district court’s denial of a writ of habeas corpus under 28 U.S.C. § 2254. He attacks his convictions for rape, aggravated criminal sodomy, and aggravated indecent liberties against a child on two grounds. Clardy asserts (1) that the Kansas state court erred in denying him access to records to prove that the child’s mother was about to lose custody and had a motive to fabricate the story of sexual abuse because she saw Mr. Clardy and his mother as potential rivals, and (2) that the Kansas state court erred in ruling that evidence that the child was undergoing counseling for previous sexual abuse, which might have accounted for her knowledge of a type of sexual activity, was barred by application of the state’s rape shield law.
On appeal in federal court, we find that, because Clardy’s first argument does not implicate federal law or the Constitution, it remains a question of Kansas state law that we cannot review under 28 U.S.C. § 2254. Clardy’s second argument as presented in his brief on appeal would have a constitutional dimension, but a review of the record reveals that Clardy did not fully present his constitutional argument to the Kansas state courts on direct attack. We consider the procedural issues this raises, but ultimately err on the side of both caution and judicial efficiency to review the claim. We hold that Clardy’s argument is without merit, and we affirm the district court’s denial of a writ of habeas corpus.
BACKGROUND
Clardy was convicted of sexually abusing A.S., a girl who was nine years old at the time. The girl’s mother, Cynthia, had met Clardy two to three weeks before she became homeless in August of 1993. Clardy offered for Cynthia and her children to move in with himself and his mother, but soon after the family moved in with the Clardys, Cynthia was arrested for a parole violation. She asked the Clardys to continue to care for her children while she was incarcerated.
When Cynthia was released from prison in November 1993, she and the children moved into their own rental place. Two weeks later, A.S. became upset and revealed to her mother that Clardy had sexually abused her while she had lived with him. Cynthia called the police to report the abuse, and A.S. was examined at a medical center. Neither that medical center, nor a subsequent specialty center, found physical evidence of abuse.
A.S. testified, however, that during the time she lived with the Clardys, she slept in Thomas Clardy’s bed. Her description of the abuse was precise and graphic. Clardy had “put his private in my private,” specifying that privates were used “to pee.” Clardy would tell her to get on top of him and “start moving up and down” with his private in hers, and that it hurt. He had put his private in her “butt” while she was “laying on her side” and he was behind her. Clardy had made her “put my mouth on his private part” and “made me rub it up and down.” *4 Clardy’s penis was round, hard and pointed up; white stuff came out of it and went on the sheets or in his underwear, and some got in her mouth. His scrotum was big and hung down. She was also instructed to moan when “he was about to have a king-sized one.”
A.S.’s brother confirmed important pieces of his sister’s testimony. Jimmy reported that his sister had slept most of the time in Clardy’s room, and that Jimmy had once opened the door of Clardy’s bedroom to find his “sister on top of Mr. Clardy.” Jimmy related that Clardy had been on his back, and had whispered to his sister “off, off, real fast,” and his sister had “sort of rolled off . . . .” Jimmy had walked out and “didn’t think nothing” of what he had seen.
Clardy’s defense was mainly alibi, but he complains that the Kansas trial court made two decisions to exclude evidence that might have been useful to him. First, Clardy’s counsel had subpoenaed records from both the Kansas state agency in charge of child welfare (the Kansas Department of Social and Rehabilitation Services, or “SRS”), and records of A.S.’s counseling sessions at the Wyandotte Mental Health Center. Clardy argued that the records “could be relevant” and “could be useful to the defense” in exploring the issue of custody, but was not much more specific about what he was looking for. Both agencies moved to quash the subpoenas on the ground that the records were confidential under Kansas state law. See Kan. Stat. Ann. §§ 38-1507, 65-5602. After in camera *5 review, the trial court determined that the records “contain no evidence that is relevant in this matter” and were protected by the cited statutes. Clardy was able, though, to cross-examine A.S.’s mother Cynthia at length during the trial to explore his theory that she had fabricated the abuse charges to keep custody of her children when her main rivals might have been the Clardys.
*6 Second, Clardy’s defense counsel filed a motion pursuant to Kansas’s rape shield law to introduce evidence at trial concerning previous sexual abuse of A.S. Clardy asserted that the evidence of previous abuse was necessary to explain how a child of nine could know so much about sex, and he alleged that to deny the admission of this evidence would violate his Sixth Amendment right to confrontation. The trial court reviewed the records in camera , though, and determined that the type of sexual abuse A.S. had previously been exposed to was very different from what she had described as her experiences with Clardy. A.S. had previously been abused by a neighbor named John Gamble, who, in a one- time act, had performed oral sex together on A.S. and two other girls. There is some allegation that A.S. was exposed to pornographic movies and magazines at Gamble’s house, [1] but there is no evidence that A.S. was ever alone with Gamble or that they had engaged in standard sexual intercourse.
Clardy was convicted by a jury on two counts of rape, four counts of
aggravated criminal sodomy, and two counts of aggravated indecent liberties. On
April 24, 1998, the Kansas Court of Appeals affirmed Clardy’s conviction, and,
on July 8, 1998, the Kansas Supreme Court summarily denied his petition for
review. State v. Clardy ,
In his brief to the Kansas Court of Appeals, Clardy alluded to both of the issues he raises before us. His challenge to the application of the rape shield law, however, was largely on evidentiary grounds. Pet. Br. on Dir. App. at 31-38. [2] The state appellate court’s decision in response specifically addressed the evidentiary ground. State v. Clardy , No. 76,690 at 14-17 (Kan. Ct. App. Apr. 24, 1998).
*7 Clardy timely filed this petition for a writ of habeas corpus with the federal district court in Kansas. The district court denied his petition, but granted a certificate of appealability on the two issues before us.
STANDARD OF REVIEW
After a district court has granted a certificate of appealability, we review its
denial of a writ of habeas corpus de novo . See, e.g. , Valdez v. Ward , 219 F.3d
1222, 1229 (10th Cir. 2000) (applying the same standards as applied by the
district court). Under the statute that codified the writ of habeas corpus, however,
federal courts shall “entertain an application for a writ of habeas corpus in behalf
of a person in custody pursuant to the judgment of a State court only on the
ground that he is in custody in violation of the Constitution or laws or treaties of
the United States.” 28 U.S.C. § 2254(a); see also Estelle v. McGuire , 502 U.S.
62, 67-68 (1991); accord Richmond v. Embry ,
Furthermore, under the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), we may not generally grant a petition for a writ of habeas corpus
unless “the applicant has exhausted the remedies available in the courts of the
State” before filing in federal court. 28 U.S.C. § 2254(b)(1)(A). In order to have
been fairly presented to the state courts, the form of a claim raised to the state
appellate court must be the “substantial equivalent” of the form of the claim
raised in the federal habeas petition. Picard v. Connor ,
If some claims in the petition have been exhausted and others have not, the
petition is considered mixed. See, e.g. , Rose v. Lundy ,
Yet if a petitioner’s claim would now be procedurally barred in the state
courts, there is little purpose in dismissing his petition to permit him to refile his
claim there. His claim is instead “considered exhausted and procedurally
defaulted for purposes of federal habeas relief.” Thomas v. Gibson , 218 F.3d
1213, 1221 (10th Cir. 2000) (citing Coleman v. Thompson ,
DISCUSSION
1. Clardy’s Claim Regarding Admission of Records from State Agencies
Clardy’s first claim regarding the state court’s decision not to admit state
agency records in evidence is purely a matter of the interpretation of Kansas law.
Indeed, at no point in his brief on appeal did Clardy attempt to argue that the state
court’s decision implicated federal law or had a constitutional dimension. We are
thus barred from reviewing his objection under habeas corpus standards. Estelle ,
2. Clardy’s Claim Regarding Application of the Rape Shield Law
Clardy does argue before us that his second claim regarding the application of Kansas’s rape shield law has a federal constitutional dimension, but he failed to clearly raise the argument in this form before the state courts on direct attack. The state courts did not directly or specifically address the argument as a Sixth Amendment argument. This claim thus presents procedural issues, and we consider these before we conclude that uncertainty about the application of Kansas’s procedural bar would have us address the merits of his claim.
a. Issues of Procedural Posture
On direct appeal, Clardy framed his objection to the application of the rape shield laws to exclude reference to A.S.’s previous sexual experience largely as a question regarding standards of evidence. The argument in his brief opened, for example, with the assertion that “The standard of review regarding admission of prior sexual conduct of a complaining witness is the same as any question involving relevant evidence.” Pet. Br. on Dir. App. at 31. Clardy agreed that the admission of “evidence rests within the sound discretion of the trial court,” and therefore that the state court’s decision not to admit evidence of A.S.’s previous sexual history should “not be set aside absent a showing of abuse of discretion.” Id. In sum, although he alluded to a Sixth Amendment right, Clardy’s position was essentially that “[t]he rape shield statute basically incorporates the existing rules of evidence which the judge must use to decide whether the proffered evidence is relevant.” Id.
The Kansas Court of Appeals answered Clardy’s limited evidentiary argument about application of the rape shield law in kind. It documented that Clardy had asserted that the evidence of A.S.’s previous sexual history was “relevant to explain how she was able to provide sexual details other than by her contact with him,” but it found no abuse of the trial court’s discretion in denying admission of the evidence. Clardy , No. 76,690 at 14. According to the state *11 appellate court, nothing tied the “pornography A.S. was exposed to . . . to the acts she said Clardy committed,” and that the actual form of sexual abuse A.S. had been exposed to had been significantly different than what she had experienced with Clardy. Clardy , No. 76,690 at 17.
*12
Clardy now argues on collateral attack in federal court that the state trial
court’s decision not to permit him to introduce evidence of A.S.’s previous sexual
abuse under Kansas’s rape shield law
[3]
violated his Sixth Amendment right to
confrontation.
[4]
But it is unclear whether this formulation of Clardy’s claim is the
“substantial equivalent” of the one he raised in state court. See Picard , 404 U.S.
at 278. We could thus consider it not to have been exhausted, and therefore not
appropriate for consideration on collateral attack in federal court. 28 U.S.C.
§ 2254(b)(1)(A). Although the state has failed to note this issue in any of its
filings, and indeed no party has addressed the problematic procedural posture of
this case, we may raise this issue ourselves upon review of the record. See, e.g. ,
Trice v. Ward ,
We are not confronted with a mixed petition at this point, however, because
Clardy would be procedurally barred from raising this claim now in the state
courts. See, e.g. , Thomas,
Clardy does not argue that Kansas’s procedural bar was not independent or
adequate, nor does he suggest that he could establish “cause and prejudice or a
*14
fundamental miscarriage of justice” such that we should consider his claim if the
state’s bar applied. English ,
Accordingly, on the assumption that Clardy’s Sixth Amendment claim is
exhausted, we will review the merits of that claim under the AEDPA. “[F]ederal
habeas review of state convictions is limited when the state courts have
adjudicated a claim on the merits.” Cook v. McKune ,
In such a situation, the question arises whether the state court adjudication
of the claim is entitled to deference under the AEDPA. If entitled to such
deference, we may only grant a writ of habeas corpus if that state adjudication
(1) “resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States,” 28 U.S.C. § 2254(d)(1); or (2) “resulted in a decision
that was based on an unreasonable determination of the facts in light of evidence
presented in the State court proceeding,” id . § 2254(d)(2). While our circuit has
issued somewhat conflicting opinions on whether a state court has in fact
considered a claim on its merits, we have recently stated that “we apply [the
AEDPA] standard notwithstanding the [state court’s] failure to cite or discuss
federal case law.” Miller v. Mullin ,
“Subsidiary factual findings by the state courts are subject to a presumption of correctness, rebuttable only by clear and convincing evidence.” Cook , 323 F.3d at 831 (citing 28 U.S.C. § 2254(e)(1)). Further “[w]here, as here, the district court has not held an evidentiary hearing, but based its decision solely on review of the state court record, we conduct an independent review of the district court’s decision.” Id.
We conclude that established case law demonstrates that the application of
Kansas’s rape shield law to the facts of Clardy’s case did not implicate his rights
under the Sixth Amendment for several reasons.
[6]
As an initial matter, we note
that Kansas’s rape shield law has been found to be constitutional, State v. Blue ,
Our caselaw generally emphasizes that standards of relevance and
materiality must be maintained in the admission of evidence, and application of
these standards will not often threaten a defendant’s rights under the Sixth
*17
Amendment. See United States v. Bautista ,
Clardy argues, however, that he had a particular need to introduce evidence
about the previous sexual abuse A.S. suffered because he wanted to explain how a
child could know so much about sex. But this is not a sufficient reason to suggest
that application of the rape shield law might have violated his Sixth Amendment
rights. We have, for example, found that the application of a rape shield law to
*18
prevent the introduction of a victim’s prior sexual history does not violate a
defendant’s rights, even when his victim is a child.
[7]
In Richmond v. Embry , 122
F.3d 866 (10th Cir. 1997), for example, we held that it was permissible to exclude
evidence that a twelve-year-old victim owned condoms and frequently had a male
visitor. Id. at 868-70, 874, 876. The defendant had attempted to introduce this
evidence to show an alternative explanation for why the twelve-year-old would
have been sexually active.
[8]
Id. at 873-74. A.S. was eleven when she testified
*19
against Clardy, and Clardy makes no principled argument why the difference of
one year from the age of his victim to the age of the victim giving testimony in
Richmond is relevant. Indeed, the interests of the state in protecting child victims
of sexual assault from surprise, harassment, and unnecessary invasions of privacy
in cross-examination become stronger as the victim is younger. Dolinger v. Hall ,
Moreover, Clardy’s argument against the Kansas rape shield law parallels
the unsuccessful arguments made by defendants against rape shield laws
regardless of the age of their victims. Thus, for example, in United States v.
Ramone ,
Finally, Clardy has already been granted more procedure in the state court
system than the United States Supreme Court has found necessary to protect a
defendant’s Sixth Amendment rights. Because Clardy’s pre-trial objection to the
application of Kansas’s rape shield law was prompt, the trial judge reviewed the
evidence that Clardy sought to admit with his arguments in mind, and it gave
Clardy a reasoned explanation for its decision why the evidence was not relevant
and would be barred by application of the state’s rape shield law. Yet the United
States Supreme Court has held that rape shield laws may not violate a defendant’s
Sixth Amendment rights even when the defendant procedurally defaults from
having his proffered evidence reviewed by the trial court. Lucas ,
CONCLUSION
The judgment of the district court to deny Clardy’s petition for a writ of habeas corpus is AFFIRMED. In so concluding, we admonish counsel that the presentation of this case would have been greatly assisted had counsel addressed the many procedural issues involved.
ENTERED FOR THE COURT Stephen H. Anderson Circuit Judge
Notes
[*] This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
[1] The Kansas Court of Appeals, however, found this allegation not to be true. Apparently, “[t]here was no evidence that the pornography A.S. was exposed to correlated to the acts [A.S.] said Clardy committed.” State v. Clardy , No. 76,690 at 17 (Kan. Ct. App. Apr. 24, 1998).
[2] Although Clardy clearly focused on state evidentiary grounds in his brief to the Kansas Court of Appeals, he did cite a case involving the Sixth Amendment right to confront witnesses, noting that it “recognized the strong constitutional right of the defendant to present a defense.” Pet. Br. on Dir. App. at 33.
[3] Kansas’s rape shield law, Kan. Stat. Ann. § 21-3525(b), reads in pertinent part: [I]n any prosecution to which this section applies, evidence of the complaining witness’ previous sexual conduct with any person including the defendant shall not be admissible, and no reference shall be made thereto in the presence of the jury, except under the following conditions: The defendant shall make a written motion to the court to admit evidence or testimony concerning the previous sexual conduct of the complaining witness. The motion must be made at least seven days before the commencement of the trial unless that requirement is waived by the court. The motion shall state the nature of such evidence or testimony and its relevancy and shall be accompanied by an affidavit in which an offer of proof of the previous sexual conduct of the complaining witness is stated. The motion, affidavits and any supporting or responding documents of the motion shall not be made available for examination without a written order of the court except that such motion, affidavits and supporting and responding documents or testimony when requested shall be made available to the defendant or the defendant's counsel and to the prosecutor. The defendant, defendant's counsel and prosecutor shall be prohibited from disclosing any matters relating to the motion, affidavits and any supporting or responding documents of the motion. The court shall conduct a hearing on the motion in camera. At the (continued...)
[3] (...continued) conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the previous sexual conduct of the complaining witness is relevant and is not otherwise inadmissible as evidence, the court may make an order stating what evidence may be introduced by the defendant and the nature of the questions to be permitted. The defendant may then offer evidence and question witnesses in accordance with the order of the court.
[4] Under the Sixth Amendment to the United States Constitution, “the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const., Amend. VI.
[5] Kan. Stat. § 60-1507 reads in pertinent part: (a) Motion attacking sentence. A prisoner in custody under sentence of a court of general jurisdiction claiming the right to be released upon the ground that the sentence was imposed in violation of the constitution or laws of the United States, or the constitution or laws of the state of Kansas, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may at any time, pursuant to the time limitations imposed by subsection (f), move the court which imposed the sentence to vacate, set aside or correct the sentence. * * * (f) Time limitations. (1) Any action under this section must be brought within one year of: (i) The final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction; or (ii) the denial of a petition for writ of certiorari to the United States supreme court or issuance of such court’s final order following granting such petition. (2) The time limitation herein may be extended by the court only to prevent a manifest injustice. Kan. Stat. § 60-1507 (2004).
[6] Because Clardy’s counseled brief made no argument that application of the
rape shield law violated due process, see, e.g. , Aplt. Br. at i, we conduct no
separate analysis of fundamental rights. Cf. Richmond ,
[7] Although Clardy mentioned the facts of United States v. Begay , 937 F.2d
515 (10th Cir. 1991), which held that a defendant’s Sixth Amendment rights were
implicated in his attempt to present evidence that a child he had been convicted of
raping may have been sexually abused by another person, id. at 521-22, we can
fundamentally distinguish that case. The question in Begay was whether evidence
regarding the source of semen or injury should have been admitted under Federal
Rule of Evidence 412(b)(2)(A). Begay ,
[8] Because the petitioner in Richmond had attempted to introduce the evidence about the twelve-year-old’s alleged previous sexual activity through his own witnesses, rather than through cross-examination of the victim, the case was decided under the Fifth and Fourteenth Amendments’ right to due process and the (continued...)
[8] (...continued) Sixth Amendment’s right to compulsory process, but the practical effect of the ruling was the same as if the case had been decided under the Sixth Amendment’s right to confrontation, as the petitioner had originally argued. See Richmond , 122 F.3d at 873-74 (discussing application of Colorado’s rape shield law).