Kenneth E. FROST, Petitioner-Appellant, v. Rex PRYOR, Warden, Lansing Correctional Facility; Derek Schmidt, Kansas Attorney General, Respondents-Appellees.
No. 13-3086.
United States Court of Appeals, Tenth Circuit.
April 25, 2014.
MATHESON, Circuit Judge.
* Rex Pryor, Warden of the Lansing Correctional Facility, is substituted for his predecessor David McKune, and Derek Schmidt, Kansas Attorney General, is substituted for his predecessor, Steve Six, pursuant to Fed. R.App. P. 43(c)(2).
For these reasons, we REMAND for the district court to vacate the sentence and resentence consistent with this opinion.
Natalie Chalmers, Assistant Solicitor General, Office of the Kansas Attorney General, Topeka, KS, appearing for Appellees.
Before LUCERO, McKAY, and MATHESON, Circuit Judges.
In 2005, a Kansas state court jury convicted Kenneth Frost of aggravated indecent liberties with a child in violation of
Mr. Frost then sought a writ of habeas corpus in federal court under
Mr. Frost now appeals, arguing (1) the district court incorrectly denied relief on the merits of his ineffective assistance claim and (2) we should also grant relief on his procedurally barred claims. As to his first issue, we are statutorily bound by AEDPA to ask only if the state court‘s decision was contrary to, or an unreasonable application of, clearly established Supreme Court law. And the Supreme Court has instructed that unreasonable application occurs only when fairminded jurists could not possibly disagree over the correctness of the state court‘s decision. Because this standard so severely constrains our review, we affirm the district court‘s denial of habeas relief on the first issue. As to his second issue, we deny a COA on all remaining claims.
I. BACKGROUND
A. Factual History
In reviewing a
Near the end of 2000 or the beginning of 2001, A.G. (Mother) started dating Frost. Several months later, Mother, her 8-year-old son [] (the child), and the child‘s twin sibling moved into Frost‘s home.
After moving into the home, the child began soiling himself in his underwear. According to the child, Frost was sexually abusing him and he was “okay” with
soiling himself because he wanted Frost to think he was “kind of gross” and to “stay away.” Unaware of the alleged sexual abuse, Mother took the child to several doctors in an attempt to uncover the reason the child was defecating in his clothing. For reasons unrelated to the issues presented in this case, Mother and the children stopped living with Frost in March or April of 2002. Frost, however, continued to speak with the child and his sibling over the telephone for another 5 or 6 months. According to Mother, Frost‘s absence coincided with the gradual decrease and eventual cessation of the child‘s soiling behavior. The child‘s condition also improved after Dr. David Nichols, the child‘s primary care physician, prescribed the child medication in December 2002.
On May 7, 2004, Mother took the child to Cindy Coggins, a licensed professional counselor, in order to have him evaluated for possible Attention Deficit Hyperactivity Disorder (ADHD). During this visit, Mother relayed to Coggins her suspicion that the child had been sexually abused. Mother stated the child was withdrawn and had experienced daily bowel problems on and off for the last 3 years, although they had stopped in the 3 weeks prior to the visit. Coggins asked the child during this visit if anyone had hurt him; the child turned to look at his mother but said nothing. Coggins ended the session, advising Mother that if anything had happened to the child, he would disclose it when he was ready.
In the fall of 2004, Frost reportedly attempted to telephone Mother and reinitiate contact with her. When Mother discussed Frost‘s alleged phone call with her then fiance, the child reportedly overheard the conversation and his soiling behavior resumed. Around that time, the child wrote Mother a letter stating that someone had touched him, specifically mentioning Frost‘s name. Mother called Coggins to tell her about the letter and the reoccurrence of the bowel condition. On November 30, 2004, Coggins met with Mother and the child. Mother gave Coggins the letter and, after recording notes about it, Coggins discarded the letter and conducted her second counseling session with the child. During this session, the child reported that Frost had sexually abused him on two separate occasions in two different rooms, describing each incident in detail. As a mandatory reporter, Coggins reported the suspected abuse to authorities.
The State‘s investigation resulted in a referral to Sunflower House, a child advocacy center. Sarah Byall, a social worker at Sunflower House, conducted a videotaped interview of the child. During the interview, the child made disclosures consistent with his statements to Coggins.
State v. Frost, No. 98,433, 212 P.3d 263, 2009 WL 2371007, at *1 (Kan.Ct.App. July 31, 2009) (unpublished table decision).
B. Procedural History
1. State Proceedings
a. Charging, preliminary hearing, and first trial
On February 23, 2005, Mr. Frost was charged with one count of aggravated indecent liberties with a child in violation of
At the preliminary hearing, the child testified about two separate instances of abuse occurring in two separate rooms within the house. Slightly different from his prior statement to Coggins, however, the child further testified that Frost forced him to take off his and Frost‘s clothing (not that Frost did it himself) and that no abuse occurred in the bathroom.
Mother also testified at the preliminary hearing, stating that during the relevant time period, she sought medical treatment from Dr. Nichols for the child‘s bowel condition. After hearing Mother testify that the child never had experienced bowel problems before, Frost advised his attorney that Mother told him the child did have soiling issues prior to moving in with Frost in 2001. Frost directed his counsel, Phillip Crawford, to obtain the child‘s medical records.
State v. Frost, 2009 WL 2371007, at *2.
Contrary to Mr. Frost‘s wishes, Mr. Crawford did not request the child‘s medical records. According to Mr. Frost, he also “told [Mr.] Crawford on several occasions that [A.G., the child‘s mother,] threatened to send him back to prison.” Aplt. Br. at 8. Mr. Frost further asserts that Mr. Crawford‘s co-counsel, Michelle Durrett, was present during one of these occasions. Id. at 8-9. In addition, Mr. Frost contends that he told Kenneth Lindquist, Mr. Crawford‘s investigator, about A.G.‘s threat. Id. In preparation for Mr. Frost‘s first trial, Mr. Lindquist prepared subpoenas for several witnesses who could testify about A.G.‘s threat to send Mr. Frost “back to prison one way or another.” State v. Frost, 2009 WL 2371007, at *9. The first trial began on September 19, 2005, but the judge declared a mistrial after the state‘s witness violated a motion in limine prohibiting the introduction of evidence about Mr. Frost‘s criminal history.
b. Second trial, conviction, and motion for new trial
The second trial began on November 28, 2005. Mr. Crawford did not subpoena any of the witnesses who indicated their willingness to testify about A.G.‘s threats. Nor did Mr. Crawford investigate the child‘s medical records as directed by Mr. Frost. At trial, the child testified that Mr. Frost had sexually abused him on two occasions. When asked about the first instance, the child told the prosecutor that he was playing with his toy cars in his bedroom when Mr. Frost entered the room and
told me to stand up and touched me, my front private part. And then he made me touch him in the same place. Then he made me pull down my pants and he touched me. And then he made me—he made me pull down his and he made me touch him. And then that‘s when he threatened to hurt my mom if I ever told anybody.
State v. Frost, 2009 WL 2371007, at *5 (quoting Trial Tr. Vol. II, at 242-43). When asked about the second incident, the child testified:
He pushed me in my mom‘s room and he touched me in the private part. And then he told me to pull down my pants and he touched me in my private part again. And then he—then he made me pull down his pants and touched me in his private part. And then he made me do that a couple times. And then he pulled up his pants and left the room.
Id. at *6 (quoting Trial Tr. Vol. I, at 245). This testimony varied from prior accounts given by the child in several re-
Apart from these details, however, the child‘s trial testimony was consistent with his testimony at the preliminary hearing and his pretrial interviews with counselor Cindy Coggins and social worker Sarah Byall. Ms. Coggins, for example,
testified from her clinical notes regarding the child‘s disclosure. Although there were some discrepancies, Coggins’ notations regarding the abuse were consistent with the child‘s testimony at trial; during the first incident Mother and the child‘s sibling were at the grocery store, the child was playing in his bedroom when Frost approached him, sexually touched him over and under his clothing, forced the child to touch Frost under Frost‘s clothing, and threatened the child, warning that if the child told anyone of the abuse Frost would hurt the child‘s mom. During the second incident, the child was in the living room watching television when Frost pushed the child into the bedroom Frost shared with Mother, sexually touched the child, forced the child to touch him, and threatened the child, saying, “If you tell anybody I‘ll hurt you.” According to Coggins, the child never wavered or hesitated in telling her what had happened. Furthermore, Coggins also stated the child “seemed to be relieved” after disclosing the alleged abuse to her, and that during later counseling sessions the child “seemed more peaceful” and “didn‘t seem to be as withdrawn.”
State v. Frost, 2009 WL 2371007, at *6 (quotations omitted); see also Trial Tr. Vol. II, at 196–97.
A significant portion of the trial testimony concerned the child‘s bowel control problems. The child‘s mother testified that her son had “never” experienced these problems before meeting Mr. Frost in 2001. Trial Tr. Vol. I, at 124. When asked by the prosecution on three additional occasions whether she could recall her son having soiling problems before 2001, she replied “no” each time. Id. at 123. Although the child maintained that he intentionally soiled his pants to ward off Mr. Frost‘s advances, see id. Vol. II, at 246, 310, expert testimony suggested that the condition was beyond the child‘s control:
[Ms.] Coggins testified Mother identified the child‘s bowel condition as encopresis, which Coggins described as a condition characterized by accidental, involuntary bowel movements. Coggins explained to the jury that, although encopresis generally stems from a physical medical condition, it also can be psychological in nature. When specifically asked whether, if psychologically grounded, the condition is consistent with a child that has been sexually abused, Coggins responded that “it can be.”
When cross-examined by the State at trial, Dr. Logan admitted he was a forensic psychiatrist, which he defined as “one who yields a psychiatric opinion about some issue of legal importance.” Furthermore, when the prosecutor suggested that the “meat and bones” of being a forensic psychiatrist involved “presenting your opinions in court to a fact-finder,” Dr. Logan disagreed and explained that his primary function was to undertake a solid clinical evaluation of the individual. Dr. Logan admitted, however, that in this case, he had been unable to conduct a clinical evaluation of the child and that his opinion was based on the limited records that had been made available, including the child‘s interviews with Coggins and [with social worker Sarah Byall] at Sunflower House, as well as the preliminary hearing transcript.
State v. Frost, 2009 WL 2371007, at *2-3.
Mr. Frost also testified at trial. He denied that he had ever seen the child with his pants pulled down or that the child saw him with his pants pulled down, and he further denied that any fondling or other sexual contact had occurred. Id. at *3; see also Trial Tr. Vol. II, at 380–81.
The jury convicted Mr. Frost as charged. Mr. Frost requested new counsel and filed a motion for a new trial based on ineffective assistance. Specifically, Mr. Frost faulted his counsel‘s failure to request the child‘s medical records, which revealed—contrary to the testimony of both A.G. and her son—that he had been treated for bowel problems in September 1996, approximately five years before meeting Mr. Frost. The records also included a note to the child‘s school from August 2002 suggesting that the child‘s soiling problems were attributable to physiological, not psychological, causes: “[S]chool needs note to have juice instead of milk. The child has bowel movement accidents if he drinks milk.” State v. Frost, 2009 WL 2371007, at *3. Finally, Mr. Frost asserted that his counsel failed to present evidence that A.G. told witnesses in October 2004 that she would “send Frost back to prison one way or another.” Id. at *9.
After an evidentiary hearing at which Mr. Crawford, Mr. Frost, and the child‘s primary care physician testified, the state trial court concluded Mr. Crawford‘s performance was not deficient and denied Mr. Frost‘s motion for a new trial. See id. at *3. On March 7, 2007, the court sentenced Mr. Frost to 204 months in prison. See Frost v. McKune, 2013 WL 812153, at *1.
c. Kansas Court of Appeals
Mr. Frost appealed to the KCOA, raising, among other issues: (i) an ineffective assistance claim based on his counsel‘s failure to investigate the child‘s medical records; and (ii) three other claims, including an ineffective assistance claim based on his counsel‘s failure to seek testimony about A.G.‘s threats to send Mr. Frost “back to prison one way or another” and two prosecutorial misconduct claims regarding commentary on witness credibility.
A majority of the KCOA panel affirmed the state trial court‘s rejection of Mr. Frost‘s ineffective assistance claim. State v. Frost, 2009 WL 2371007, at *8-9. Although the majority determined that trial counsel‘s failure to investigate the victim‘s medical history was constitutionally deficient, see id. at *5, it nonetheless held that Mr. Frost was not prejudiced because of the “overwhelming amount of evidence” against him, id. at *8. The KCOA began its prejudice analysis by articulating the following standard:
To establish prejudice, a defendant must demonstrate a reasonable probability that, but for counsel‘s deficient performance, the result of the proceeding would have been different.
Id. at *5. Applying this standard to the facts of Mr. Frost‘s case, the KCOA determined that:
[Mr.] Frost must demonstrate a reasonable probability that he would have been acquitted by the jury if they had known (1) the child was seen by a doctor with regard to a soiling condition 5 years earlier, when he was 4 years old, and (2) there was a note dated August 19, 2002, in the child‘s medical records stating “school needs note to have juice instead of milk. The child has bowel movement accidents if he drinks milk.” Given the overwhelming evidence of Frost‘s guilt presented at trial, we are not persuaded that the jury would have reached a different result had it been presented with the information to which Frost refers.
Id.
The KCOA observed that with respect to the evidence presented to the jury, “when compared to what was consistent with the child‘s statements, the inconsistencies are nominal.” Id. at *7. According to the KCOA, the “child‘s accounts established the elements of the crime for which [Mr.] Frost was convicted, and it was the jury‘s function to determine his credibility.” Id. Further, the “jury was made well aware of evidence explaining away the significance of encopresis, yet chose nevertheless to convict [Mr.] Frost.” Id. Thus, the “medical records argued for by [Mr.] Frost pale[d] in comparison.” Id.
As for the evidence not presented to the jury, the court determined that the revelation that the child had suffered from soiling issues five years before meeting Mr. Frost would not “have swayed the minds of the jurors.” Id. at *8. “Even if [Mr.] Crawford had introduced evidence proving that the child had bowel problems long before meeting [Mr.] Frost, this fact does not contradict the child‘s direct testimony that [Mr.] Frost sexually abused him and that he was ‘okay’ with soiling himself because he wanted [Mr.] Frost to think he was ‘kind of gross’ and to ‘stay away.‘” Id. Indeed, the state court observed, “because the record cites no medical cause for the bowel problems that occurred when the child was 4 years old, the jury would have been free to infer that the child soiled himself in response to anxiety or trauma back then and, because the bowel condition recurred, there must have been some anxiety or trauma occurring around the time the child moved in with [Mr.] Frost.” Id. Finally, the state court found the “child‘s young age, 4 years old, at the time of the pre-abuse soiling[,] render[ed] negligible any effect [the] medical records could have had in impeaching the child‘s testimony, at 13 years old, that no soiling problems existed prior to coming into contact with [Mr.] Frost.” Id.
Accordingly, the KCOA affirmed the state trial court‘s conviction because “evidence establishing one solitary incident of pre-abuse soiling” could not “have had any
One judge dissented on the issue of prejudice. According to the dissenting member of the panel, “one objective fact seemed to corroborate both the mother‘s testimony and that of the child: his problem of soiling his pants began only after he had moved in with [Mr.] Frost and, thus, presumably in response to [Mr.] Frost‘s abuse.” Id. at *13 (Leben, J., dissenting). Had Mr. Crawford requested the child‘s medical history, “the cross-examination of those witnesses would have been much stronger,” and the “jury might well have considered the objective foundation of the State‘s case sufficiently shaken that reasonable doubt of guilt had been shown.” Id.
ii. Remaining claims
The KCOA also rejected Mr. Frost‘s claims that (1) his trial counsel was ineffective in failing to subpoena witnesses to provide testimony on A.G.‘s threat to send Mr. Frost “back to prison one way or another” and (2) the prosecution improperly attacked the credibility of Mr. Frost‘s expert. See id. at *9–11.2
d. Kansas Supreme Court
Mr. Frost petitioned the Kansas Supreme Court for discretionary review of the ineffective assistance claim based on trial counsel‘s failure to investigate the child‘s medical history. He did not include the other ineffective assistance claim or the prosecutorial misconduct claims in his petition. See Frost v. McKune, 2013 WL 812153, at *2 (citing Aplt. Pet. for Review at 1, 5-11). The Kansas Supreme Court denied review on September 7, 2010.
2. Federal Proceedings
On September 28, 2011, Mr. Frost filed a federal habeas petition under
a. Ineffective assistance claim based on failure to investigate the child‘s medical history
Applying the considerable deference due to state decisions on the merits under AEDPA, the district court considered and rejected Mr. Frost‘s claim that his trial counsel provided ineffective assistance by failing to investigate the child‘s medical history. See Frost v. McKune, 2013 WL 812153, at *3-10. Although the district court observed that it would be a close call under de novo review, it felt “compelled” by “the narrow scope of review in habeas cases,” id. at *10, to dismiss Mr. Frost‘s petition because the KCOA‘s resolution of the prejudice issue was neither contrary to nor an unreasonable application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which enunciated the federal standard for evaluating ineffective assistance claims.3 The
b. Procedurally barred claims
The federal district court determined that Mr. Frost‘s remaining claims were procedurally barred because they were not fairly presented to the Kansas Supreme Court and would now be untimely under Kansas‘s procedural rules. See Frost v. McKune, 2013 WL 812153, at *2; see also
II. JURISDICTION AND STANDARD OF REVIEW
On appeal, Mr. Frost presses all four issues raised in the district court. A COA is a prerequisite to appellate jurisdiction in a habeas action. See
The KCOA rejected this claim on the merits. Our review is therefore governed by AEDPA, which “erects a formidable barrier to federal habeas relief,” Burt v. Titlow, 134 S.Ct. 10, 16 (2013), and “requires federal courts to give significant deference to state court decisions” on the merits. Lockett v. Trammel, 711 F.3d 1218, 1230 (10th Cir.2013); see also Hooks v. Workman, 689 F.3d 1148, 1162-63 (10th Cir. 2012) (“This highly deferential standard
Under AEDPA, we may not grant a state prisoner‘s petition under
“Clearly established law is determined by the United States Supreme Court, and refers to the Court‘s holdings, as opposed to the dicta.” Lockett, 711 F.3d at 1231 (quotations omitted). A state court decision is “contrary to” the Supreme Court‘s clearly established precedent “if the state court applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court] has done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694 (2002) (quotations omitted).
A state court decision is an “unreasonable application” of Supreme Court precedent if “the state court identifies the correct governing legal rule from [the] Court‘s cases but unreasonably applies it to the facts of the particular state prisoner‘s case.” Williams v. Taylor, 529 U.S. 362, 407 (2000) (opinion of O‘Connor, J.);7 accord Wiggins v. Smith, 539 U.S. 510, 520 (2003). “Evaluating whether a rule application was unreasonable requires considering the rule‘s specificity. The more general the rule“—like the one adopted in Strickland—“the more leeway [state] courts have in reaching outcomes in case-by-case determinations.” Richter, 131 S.Ct. at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). An “unreasonable application of federal law” is therefore “different from an incorrect application of federal law.” Id. at 785 (quoting Williams, 529 U.S. at 410 (opinion of O‘Connor, J.)).
We may “issue the writ” only when the petitioner shows “there is no possibility fairminded jurists could disagree that the state court‘s decision conflicts with [the Supreme] Court‘s precedents.” Id. at 786 (emphasis added). “Thus, ‘even a strong case for relief does not mean that the state court‘s contrary conclusion was unreasonable.‘” Id. “‘If this standard is difficult to meet’ and it is ‘that is because it was meant to be.‘” Titlow, 134 S.Ct. at 16 (quoting Richter, 131 S.Ct. at 786). Indeed, AEDPA stops just “short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings.” Richter, 131 S.Ct. at 786. Accordingly, “[w]e will not lightly conclude that a State‘s criminal justice system has experienced the ‘extreme malfunction’ for which federal habeas relief is the remedy.” Titlow, 134 S.Ct. at 16 (quoting Richter, 131 S.Ct. at 786).
In making this assessment, however, “we review the district court‘s legal analysis of the state court decision de novo” and its factual findings, if any, for clear error. Byrd v. Workman, 645 F.3d 1159, 1165 (10th Cir.2011) (quotations omitted). Finally, our review is “limited to the record that was before” the KCOA. Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011).
III. DISCUSSION
Mr. Frost raises four grounds for relief: (1) ineffective assistance of counsel in failing to investigate the child‘s medical records; (2) ineffective assistance of counsel in failing to elicit testimony about A.G.‘s threats to send Mr. Frost “back to prison one way or another,” State v. Frost, 2009 WL 2371007, at *8-9; (3) improper prosecutorial comment assailing the credibility of Mr. Frost‘s expert; and (4) improper prosecutorial comment vouching for the credibility of the child. For the reasons stated below, we (A) affirm the district court‘s decision on the first ground and (B) deny COA on the remaining three claims.
A. Ineffective Assistance of Counsel for Failure to Request Medical Records
1. Legal Background
The Supreme Court has held that the Sixth Amendment right to counsel includes a right to effective representation. Under Strickland, a defendant must demonstrate two elements to prove ineffective assistance:
First, the defendant must show that counsel‘s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel‘s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. 466 U.S. at 687.
To establish constitutionally deficient performance, “the defendant must show that counsel‘s representation fell below an objective standard of reasonableness.” Id. at 688; see also Williams, 529 U.S. at 390-91 (opinion of Stevens, J.). A court considering such a claim must apply a “strong presumption” that counsel‘s representation was within the “wide range” of reasonable assistance. Strickland, 466 U.S. at 689. Because we agree with the KCOA‘s conclusion that Mr. Crawford‘s failure to investigate the child‘s medical records fell below this standard, see State v. Frost, 2009 WL 2371007, at *5, we focus here on Strickland‘s prejudice inquiry.8
To establish prejudice, a defendant “must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. It is not enough “to show that the errors had some conceivable effect on the outcome of the proceeding.” Richter, 131 S.Ct. at 787 (quoting Strickland, 466 U.S. at 687). Rather, the “likelihood of a different result must be substantial....” Id. at 792 (emphasis added).
Thus, “[i]n assessing prejudice under Strickland, the question is not whether a court can be certain counsel‘s performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel act-
2. Strickland Review Under AEDPA
As noted above, because the KCOA rejected Mr. Frost‘s ineffective assistance claim on the merits, we must evaluate this claim through AEDPA‘s deferential lens. See
“It is past question that the rule set forth in Strickland qualifies as ‘clearly established Federal law, as determined by the Supreme Court of the United States.‘” Williams, 529 U.S. at 391 (opinion of Stevens, J.). Thus, “[i]f a state court were to reject a prisoner‘s claim of ineffective assistance of counsel on the grounds that [he] had not established by a preponderance of the evidence that the result of his criminal proceeding would have been different” absent counsel‘s deficient performance, that decision would be contrary to clearly established Supreme Court precedent because the prisoner “need only demonstrate a ‘reasonable probability that... the result of the proceeding would have been different.‘” Id. at 405-06 (opinion of O‘Connor, J.) (quoting Strickland, 466 U.S. at 694) (emphasis added); accord Richter, 131 S.Ct. at 792 (Strickland does not “require a showing that counsel‘s actions ‘more likely than not altered the outcome‘” (quoting Strickland, 466 U.S. at 693)).
Even if a state court applied the proper “reasonable probability” standard from Strickland, we may still grant relief if it applied the standard “unreasonabl[y],”
The Supreme Court has articulated a test for reasonableness: a state court decision is reasonable “so long as ‘fairminded jurists could disagree’ on the correctness of the state court‘s decision.” Id. at 786 (quoting Alvarado, 541 U.S. at 664).
The Court‘s “fairminded jurists” test thus serves as a proxy for “unreasonable application.” It is designed to help federal courts reviewing
We must apply the Supreme Court‘s “fairminded jurists” test to Mr. Frost‘s case. Thus, to obtain relief under
3. Analysis
Mr. Frost argues the KCOA (1) relied on a preponderance standard contrary to Strickland‘s “reasonable probability” prejudice standard; and (2) unreasonably applied the “reasonable probability” standard to the facts of his case. We disagree.
a. The KCOA did not apply a standard contrary to Strickland‘s prejudice standard.
First, the KCOA did not apply a standard that was “contrary to” Strickland. The KCOA correctly recognized that “[t]o establish prejudice, a defendant must demonstrate a reasonable probability that, but for counsel‘s deficient performance, the result of the proceeding would have been different.” State v. Frost, 2009 WL 2371007, at *5. The Supreme Court has recently reiterated the very same standard: “The defendant must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Pinholster, 131 S.Ct. at 1403 (quoting Strickland, 466 U.S. at 694).
Mr. Frost argues that the KCOA used an “outcome determinative” standard that “is directly contrary to clearly established Supreme Court precedent.” Aplt. Br. at 25. As Mr. Frost observes, some language in the KCOA opinion perhaps suggests it held Mr. Frost to a higher standard than that dictated by Strickland. At one point, the KCOA states that “[g]iven the overwhelming evidence of [Mr.] Frost‘s guilt presented at trial, we are not persuaded that the jury would have reached a different result had it been presented with the information to which [Mr.] Frost refers.” State v. Frost, 2009 WL 2371007, at *5 (emphasis added). This phrasing (“would have“), Mr. Frost argues, evokes a “more likely than not” preponderance standard, which conflicts with Strickland‘s “reasonable probability” standard. See Williams, 529 U.S. at 406 (opinion of O‘Connor, J.); see also Aplt. Br. at 26.9
But the foregoing articulation of the prejudice standard does not render the
Accordingly, we hold that the KCOA‘s decision was not “contrary to” clearly established law as determined by the Supreme Court, see
b. The KCOA did not unreasonably apply Strickland‘s reasonable probability standard.
Second, although the issue is close, Mr. Frost has not shown the KCOA‘s ruling on Strickland‘s prejudice standard was “so lacking in justification that there was an error ... beyond any possibility for fairminded disagreement.” Titlow, 134 S.Ct. at 16 (quoting Richter, 131 S.Ct. at 786-87) (emphasis added).
At trial, the State presented evidence to link the victim‘s encopresis problems with the alleged abuse. In its opening statement and closing argument, the State argued there was a causal connection between the encopresis and the abuse. See Trial Tr. Vol. I, at 93-95; id. Vol. II, at 428-29. It relied primarily on the mother‘s testimony (1) denying the victim had any encopresis problems before her relationship with Mr. Frost and (2) saying the problems arose during the time they were living with Mr. Frost and when Mr. Frost attempted to contact her two years later. See id. Vol. I, at 93-95, 123-27; id. Vol. II, at 428-29. Counselor Cindy Coggins testified the mother told her in May 2004 that the child had experienced encopresis for three years. See id. Vol. II, at 192. She also testified encopresis can be related to sexual abuse. See id. at 190-91. The defense, having to accept the mother‘s version of when the encopresis started because it had not obtained the records showing otherwise, attempted to rebut the encopresis connection through expert witness Dr. Logan, who suggested physiological and psychological factors unrelated to sexual abuse. See id. Vol. I, at 100-06; id. Vol. II, at 338-39, 415-16.
But it turns out the mother‘s testimony was false as to when the problems began. Mr. Frost‘s lawyer failed to obtain records showing the child‘s primary care physician, Dr. Nichols, treated the child for encopresis roughly four years before he and his
The KCOA provided several reasons why it concluded trial counsel‘s error did not prejudice Mr. Frost. The court specifically relied on the child‘s mostly consistent testimony, the limited impeachment value of the medical records as to the child‘s allegations that he had been abused, the supporting testimony of counselor Coggins and social worker Byall, and the jury‘s decision not to credit Mr. Frost‘s expert. See State v. Frost, 2009 WL 2371007, at *6-8. Additionally, the KCOA observed that “one solitary incident of pre-abuse soiling” was not inconsistent with the prosecution‘s theory that the child‘s condition became indisputably worse after meeting Mr. Frost. Id. at *8.
Mr. Frost now argues the mother‘s false denial about previous encopresis problems shows she tried to induce her son to tell a false story to two therapists, the police, the preliminary hearing court, and the trial court jury. But that is only one possible explanation for her testimony. She may have forgotten the earlier doctor visit for encopresis or at least the timing of it. Or she may have thought, mistakenly and wrongly, that admitting to the earlier encopresis would weaken her son‘s truthful testimony and the State‘s case.
As the prosecution said in closing argument, the outcome of this case turned on whether the jury believed the child‘s testimony about the two incidents. See Trial Tr. Vol. II, at 404. We have carefully reviewed the entire record. The child‘s testimony was specific and mostly consistent about the primary location of each incident, Mr. Frost‘s aggressive behavior, the general sequence of events, and Mr. Frost‘s threats to harm his mother if he told anyone. The minor inconsistencies with previous tellings were more in keeping with a credible repetition of the events than a story that is identical from one telling to another. The child not only endured the ordeal of talking in court about the abuse, but also the embarrassment of discussing his encopresis condition and his belief it would ward off Mr. Frost.
The KCOA‘s decision did not discuss the credibility of A.G.--the child‘s mother—in its prejudice application. As the dissent observes, the new evidence that the child had suffered from a bowel control problem before meeting Mr. Frost and that this problem was potentially attributable to milk (as opposed to psychological trauma) had impeachment potential given that A.G. repeatedly denied her son had experienced soiling problems before her meeting Mr. Frost. See Trial Tr. Vol. I, at 123-24 (responding “no” three times when asked if her son had experienced these problems before and asserting he had “never” had soiling problems during his tumultuous childhood).
Although the medical records may weaken the mother‘s credibility, they do not materially undermine the child‘s. It was the child, not his mother, who testified at trial about the two alleged incidents of sexual abuse. His testimony established the elements of the offense, specifically identifying Mr. Frost. The KCOA reasonably concluded that the value of impeaching a thirteen-year-old over whether he remembered soiling himself when he was four years old was limited when compared with the other evidence indicating Mr. Frost‘s guilt. See State v. Frost, 2009 WL 2371007, at *7-8. Indeed, although the
In light of the foregoing, we cannot say Mr. Frost has shown the KCOA‘s ruling on his Strickland claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 131 S.Ct. at 786-87 (emphasis added). We may be inclined to agree with Mr. Frost and our dissenting colleague if our review were de novo. We also might be more inclined to side with Mr. Frost if the test were whether the KCOA‘s analysis alone was unreasonable. For example, the KCOA‘s description of the evidence against Mr. Frost as “overwhelming,” State v. Frost, 2009 WL 2371007, at *5, and its disbelief that the medical records “could have any likelihood of changing the result at trial,” id. at *8 (emphasis added), were both overstatements.
But the critical question is whether the KCOA‘s conclusion was itself unreasonable. See Byrd, 645 F.3d at 1170-71 (declining to grant relief based on state court‘s “failure to conduct the specific analysis” requested by the petitioner because we “fail[ed] to see how its conclusion ... could be construed as being in such tension with governing U.S. Supreme Court precedents, or so inadequately supported by the record, or so arbitrary as to be unreasonable” (quotations omitted) (emphasis added)).
Although we may disagree with the state court‘s conclusion, we cannot say Mr. Frost has shown “there is no possibility fairminded jurists could disagree” over the correctness of its decision. Howell v. Trammell, 728 F.3d 1202, 1213 (10th Cir. 2013) (quoting and emphasizing Richter, 131 S.Ct. at 786); see also Richter, 131 S.Ct. at 786 (“[E]ven a strong case for relief does not mean the state court‘s contrary conclusion was unreasonable.“). That is the very narrow space that AEDPA and the Supreme Court have left us.10 We are therefore constrained to affirm.
B. Expanding the COA on Mr. Frost‘s Remaining Issues
In addition to the sole issue on which the federal district court granted a COA, Mr. Frost appeals the district court‘s dismissal of (1) his claim that trial counsel provided ineffective assistance by failing to present evidence about A.G.‘s threat to send him “back to prison one way or another“; (2) his claim that the prosecutor improperly assailed his expert‘s credibility during closing arguments; and (3) his claim that the prosecutor improperly vouched for the child‘s credibility during closing arguments.12
As previously noted, Mr. Frost may not appeal the federal district court‘s decision without a COA. Miller-El, 537 U.S. at 335-36; Lockett, 711 F.3d at 1249. The district court dismissed each of these claims on procedural grounds and refused to grant a COA for any of them. Although Mr. Frost does not explicitly seek a COA, we construe his filing of a notice of appeal as a request for a COA. See Fed. R.App. P. 22(b)(2) (“If no express request for a certificate is filed, the notice of appeal constitutes a request addressed to the judges of the court of appeals.“); see also United States v. Gordon, 172 F.3d 753, 753-54 (10th Cir.1999) (citing Fed. R.App. P. 22(b)(2)).
1. Standard for Granting COA
Under AEDPA, we may not issue a COA unless “the applicant has made a substantial showing of the denial of a constitutional right.”
2. Legal Background
a. Exhaustion and anticipatory procedural bar
A federal court cannot grant a state prisoner‘s habeas petition unless the petitioner has exhausted his claims in state court. See
Mr. Frost‘s claims are now and have long been untimely under Kansas state law. See Kan. Sup.Ct. R. 8.03(a)(1) (“jurisdictional” 30 day limit for petitioning state supreme court for discretionary review); id. 183(c)(3) (allowing collateral post-conviction relief for “trial errors affecting constitutional rights” that “could have been raised on appeal” only when “exceptional circumstances excuse the failure to appeal“);
b. Exceptions to the anticipatory procedural bar
There are two circumstances where a federal court may nevertheless consider claims subject to an anticipatory procedural bar: (1) if the prisoner has alleged sufficient “cause” for failing to raise the claim and resulting “prejudice” or (2) if denying review would result in a fundamental miscarriage of justice because the petitioner has made a “credible” showing of actual innocence. See Coleman, 501 U.S. at 750; House v. Bell, 547 U.S. 518, 537 (2006); McQuiggin v. Perkins, — U.S. —, 133 S.Ct. 1924, 1931-32, 185 L.Ed.2d 1019 (2013). Because Mr. Frost only asserts his actual innocence and does not contend he has adequate cause for failing to raise these claims in this case, we do not address the first exception.
“[T]he fundamental miscarriage of justice exception seeks to balance the societal interests in finality, comity, and conservation of scarce judicial resources with the individual interest in justice that arises in the extraordinary case.” Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). To make a
3. Analysis
We deny COA on all three issues because reasonable jurists would not debate the district court‘s procedural ruling that (1) Mr. Frost failed to exhaust these claims by not including them in his petition for discretionary review by the Kansas Supreme Court; and (2) he has therefore procedurally defaulted these claims for purposes of federal habeas because the time for petitioning the state court has expired. See O‘Sullivan, 526 U.S. at 845, 848-49.
Mr. Frost argues that the district court nonetheless erred in determining that he had not satisfied the fundamental miscarriage of justice exception to the anticipatory procedural bar. We disagree. Reasonable jurists would not debate the district court‘s conclusion that Mr. Frost failed to make the “credible showing of actual innocence,” see Perkins, 133 S.Ct. at 1931, required to circumvent the anticipatory procedural bar. Although Mr. Frost is correct that the Court‘s decisions do not require a “traverse” to make this showing, they nevertheless require a petitioner to show that “it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt” in light of the new evidence. House, 547 U.S. at 536-37 (quoting Schlup, 513 U.S. at 327) (emphasis added).
Mr. Frost‘s petition falls short of this demanding standard, which is significantly higher than “that needed to establish prejudice” under Strickland. Schlup, 513 U.S. at 327. Simply maintaining one‘s innocence, or even casting some doubt on witness credibility, does not necessarily satisfy this standard. See Stafford v. Saffle, 34 F.3d 1557, 1562 (10th Cir.1994) (new evidence was “only impeachment evidence, rather than evidence of actual innocence” supporting a claim under Herrera v. Collins, 506 U.S. 390, 417, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993)); cf. Bousley v. United States, 523 U.S. 614, 623 (1998) (claim of actual innocence must be based on new evidence suggesting “factual innocence, not mere legal insufficiency“). Mr. Frost‘s new evidence regarding the mother‘s alleged threats to send him back to prison and the victim‘s past encopresis does not substantially undermine the victim‘s testimony of the abuse. Accordingly, we cannot agree with Mr. Frost that, in light of this new evidence, it is “more likely than not” that “no reasonable juror” would have found him guilty. See House, 547 U.S. at 536-37.
Because reasonable jurists would not debate the district court‘s procedural rulings on these issues, we deny COA on each of them.14
For the foregoing reasons, we (1) affirm the district court‘s denial of habeas relief on Mr. Frost‘s ineffective assistance claim regarding trial counsel‘s failure to investigate the child‘s medical records; and (2) deny COA on Mr. Frost‘s remaining claims.
LUCERO, Circuit Judge, dissenting.
Although my colleagues in the majority state they would be inclined to grant habeas relief had this case come to us on de novo review, they hold that they are compelled to affirm under the highly deferential standard of review applicable to
I agree with my colleagues that the trial attorney‘s “failure in this case to obtain the child‘s medical records plainly fell below an objective standard of reasonableness.” (Id. at 1224 n. 8.) Frost testified that he instructed his attorney to track down records that would contradict important testimony from the victim‘s mother, and an investigator testified that she was able to obtain those records in about an hour. As my colleagues note, it has long been clearly established that counsel “has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland v. Washington, 466 U.S. 668, 691 (1984).
To prevail on an ineffective assistance claim, however, Frost must also show that his attorney‘s deficient performance caused prejudice. Id. To do so, he must establish “a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. I recognize, of course, the considerable deference due to the decision of the KCOA pursuant to the Antiterrorism and Effective Death Penalty Act of 1996. See, e.g., Howell v. Trammell, 728 F.3d 1202, 1212-13 (10th Cir.2013). But “[e]ven in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Given the centrality of the issue addressed by the medical records that counsel failed to obtain and the potentially devastating effect those records would have had on the prosecution‘s case, I consider the KCOA‘s conclusion that counsel‘s failure was nonprejudicial to be unreasonable.
Frost was convicted of aggravated indecent liberties with a child. As the KCOA dissent highlighted, “one objective fact seemed to corroborate both the mother‘s testimony and that of the child: his problem of soiling his pants began only after he had moved in with Frost and, thus, presumably in response to Frost‘s criminal abuse.” Frost, 2009 WL 2371007, at *13 (emphasis added). It is no stretch to characterize the correlation of the victim‘s en-
Moreover, the medical records would have provided an extremely valuable avenue of impeachment. As the majority acknowledges, the KCOA‘s decision completely failed to address the impact of the records on the credibility of the child‘s mother. (Majority Op. 1228-29.) She testified repeatedly and emphatically that the child had not suffered similar accidents before the events relevant to the trial:
Q Okay. Did [the child] ever start having these accidents before you moved in with the defendant?
A No.
Q Did you—could you recall ever him having any accidents like this? For example, after you told him that his biological father and he are not going to have any contact did he ever—
A No.
Q Did he ever start having these accidents any of the other times that you have had to uproot your family and move?
A No.
Q Did he ever have these accidents after your family unit split up from six, two adults with four children, to two separate families of one adult and two children?
A No, he never did.
The KCOA unreasonably failed to consider the medical records’ effect on the credibility of the mother. Combined with the court‘s other errors—including those noted by my colleagues, (id. at 1229), the KCOA‘s unreasonable analysis resulted in an unreasonable conclusion.
I agree with the majority that the records had less potential to impeach the victim. (Id. at 1228-29.) However, Frost elicited significant testimony suggesting that a mother might put “ideas in [the child‘s] head” and that a child‘s testimony could be “taint[ed]” by hearing his mother‘s conversations. A forensic psychiatrist testified that a child “may want to please the mother. He may pick up things that the mother is saying and repeat those.” Trial evidence suggested that the child had trouble verbalizing details of the alleged abuse when his mother was not present. One witness noted that the victim “turned and looked at his mother” when asked about the abuse and a therapist stated in her report that the child “deferred to his mother for answers regarding abuse.” Thus, evidence that the mother had lied on the stand may have reflected on the child‘s testimony and the prosecution‘s entire case.
I respect my colleagues’ view on this difficult issue; the AEDPA “standard does not require all reasonable jurists to agree that the state court was unreasonable.” House v. Hatch, 527 F.3d 1010, 1019 (10th Cir.2008). However, Frost presents more than simply a strong case for retrial with the benefit of the previously undiscovered medical records. He has shown that the majority decision of the KCOA was unrea-
Notes
Nor, contrary to the dissent‘s assertion, does this deference “by definition preclude relief,” Miller-El, 537 U.S. at 340, on all ineffective assistance claims advanced by federal habeas petitioners. For example, if the new evidence in this case squarely undermined the child‘s credibility, then a state decision concluding the defendant failed to establish prejudice would be an “error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 131 S.Ct. at 787; see, e.g., Cannedy v. Adams, 706 F.3d 1148, 1164-65 (9th Cir 2013) (concluding that the state court unreasonably applied Strickland‘s prejudice element because new evidence that the alleged sexual abuse victim said she “just made the allegations of abuse up so she could get away from it all” went “to the heart of her credibility” and “would have been the cornerstone of Petitioner‘s case“), cert. denied, 134 S.Ct. 1001, 187 L.Ed.2d 863 (2014). So, too, if deficient performance prevented a defendant from presenting considerable mitigation evidence in the penalty phase of a capital case sufficient to cause “at least one juror” to “strike a different balance,” Wiggins, 539 U.S. at 537, or from presenting strong alibi evidence, see, e.g., Stitts v. Wilson, 713 F.3d 887, 894 (7th Cir.2013) (no “fairminded jurist” would agree with state court‘s finding of no prejudice where the introduction of alibi witnesses would have transformed the trial “from a one-sided presentation of the prosecution‘s case into a battle between competing eyewitness testimony“), cert. denied, 134 S.Ct. 1282, 188 L.Ed.2d 299 (2014).