Cairns v. Johnson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-6803

ROBERT CAIRNS,

Petitioner - Appellant,

versus

GENE M. JOHNSON, Director, Virginia Department
of Corrections,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. M. Hannah Lauck, Magistrate
Judge. (3:05-cv-00396-MHL)

Argued: December 4, 2007 Decided: February 26, 2008

Before NIEMEYER and GREGORY, Circuit Judges, and James P. JONES,
Chief United States District Judge for the Western District of
Virginia, sitting by designation.

Affirmed by unpublished opinion. Judge Jones wrote the opinion, in
which Judge Niemeyer and Judge Gregory joined.

ARGUED: Neal Lawrence Walters, UNIVERSITY OF VIRGINIA SCHOOL OF
LAW, Appellate Litigation Clinic, Charlottesville, Virginia, for
Appellant. Stephen R. McCullough, Deputy State Solicitor General,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellee.
ON BRIEF: Robert F. McDonnell, Attorney General, William E. Thro,
State Solicitor General, William C. Mims, Chief Deputy Attorney
General, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

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JONES, Chief District Judge:

Robert Bruce Cairns, a Virginia prisoner, appeals the judgment

of the district court denying his petition for habeas corpus.

Cairns was convicted in state court of forcible sodomy, rape, and

manufacturing pornography and sentenced to a lengthy term of

imprisonment. In his federal habeas petition, Cairns argued that

the exclusion of a complaining witness’s journals was

constitutional error and that the Court of Appeals of Virginia had

failed to review that error using the appropriate harmless error

standard. Cairns also challenged the sufficiency of the evidence

for conviction. For the following reasons, we affirm the district

court’s decision denying relief.

I.

DeWayne Martin, a family friend, harbored suspicions that

Cairns was sexually abusing Cairns’s fourteen-year-old

stepdaughter, W, and eleven-year-old daughter, N. So, on October

11, 1998, Martin went to Cairns’s home, removed all four of

Cairns’s children, and drove them to a church where he telephoned

the police. Police officers responded to the call and interviewed

the children. W and N reported having been sexually abused by both

parents. Cairns and his wife were arrested that night.

At his first bench trial, Cairns was convicted of four counts

of forcible sodomy, one count of rape, and one count of

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manufacturing pornography. Cairns appealed and the Court of

Appeals of Virginia reversed his convictions and remanded for a new

trial. See Cairns v. Commonwealth, 542 S.E.2d 771 (Va. Ct. App.

2001).

At his second bench trial, Cairns sought to introduce two

journals kept by W. W had told the police that she had recorded

the details of the sexual abuse in her journals. The journals,

however, did not describe sexual abuse by Cairns and his wife.

Instead, they chronicled W’s numerous consensual sexual encounters

with other people. Cairns wanted to impeach W’s testimony by

demonstrating that she lied to the police about the contents of the

journals. Cairns also argued that the conspicuous absence of

sexual abuse in W’s journals cast doubt upon her testimony that she

had been abused. The trial court refused to admit the journals,

citing the Virginia rape shield statute, Va. Code Ann. § 18.2-67.7

(Supp. 2007). Cairns was subsequently convicted of three counts of

forcible sodomy, one count of rape, and one count of manufacturing

pornography.

Cairns appealed his convictions and sentence, claiming, inter

alia, that the trial court had erred by excluding the journals and

that there had been insufficient evidence to convict him. The

Court of Appeals of Virginia (Virginia’s intermediate appellate

court)found that the trial court had erred in excluding the

journals because they were proper impeachment. The court

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determined, however, that the error was harmless and Cairns’s

convictions and sentence were affirmed. See Cairns v.

Commonwealth, 579 S.E.2d 340 (Va. Ct. App. 2003). The Supreme

Court of Virginia denied Cairns’s subsequent petition for appeal.

Cairns then unsuccessfully pursued state collateral remedies.

In his state habeas corpus petition, Cairns raised nine claims,

including exclusion of the journals and insufficiency of the

evidence. A state trial court summarily denied the petition, and

the Supreme Court of Virginia denied Cairns’s appeal.

In his petition in the court below under 28 U.S.C. § 2254

(2000), Cairns raised nine claims, substantially identical to the

claims he had raised in his state habeas corpus petition. The

district court denied relief, and Cairns noted a timely appeal.

We granted a certificate of appealability on the following two

issues: (1) whether Cairns’s Confrontation Clause and due process

rights were violated by not allowing into evidence the two journals

kept by W and (2) whether the evidence at trial was sufficient to

support his convictions.

II.

Cairns contends that he is entitled to relief under § 2254

because (1) exclusion of W’s journals was constitutional error; (2)

the Court of Appeals of Virginia applied the wrong standard in

finding that error to be harmless; (3) use of the incorrect

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standard was contrary to clearly established federal law and,

therefore, deference under the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”) is not appropriate, see 28 U.S.C. §

2254(d); and (4) a de novo harmless error analysis by this court

will lead us to conclude that exclusion of the journals was not

harmless.

A.

As a threshold matter, the Commonwealth of Virginia1 argues

that Cairns failed to exhaust his claim that the Court of Appeals

of Virginia applied the incorrect standard when it evaluated

whether exclusion of the journals was harmless error. The

Commonwealth contends that it was not sufficient for Cairns, in his

petition to the Supreme Court of Virginia, to assign as error

exclusion of the journals. Instead, he was also obligated to

assign, as separate error, the harmless error standard of review

employed by the Court of Appeals of Virginia. The Commonwealth

asserts that Cairns’s failure to assign separate error to the

harmless error standard precludes this court from reviewing that

standard. Therefore, the argument goes, we can only review the

trial court’s decision to exclude the journals using AEDPA

deference. See 28 U.S.C. § 2254(d).

1
For convenience, we will refer to the respondent as the
Commonwealth.

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 Cairns disputes the Commonwealth’s interpretation of the

habeas statute. Cairns maintains that § 2254 merely requires a

petitioner to exhaust his claims in state court. His claim is that

the trial court’s exclusion of the journals violated his

Confrontation Clause and due process rights and that he has raised

and exhausted this claim in the state courts. Cairns further

argues that federal habeas exists to relieve petitioners from

constitutional errors at trial and sentencing. The state appellate

court’s application of an incorrect standard of review is not an

error in trial or at sentencing.

A state prisoner must assert his claims in state court before

seeking relief in a federal habeas petition in order to give the

state an opportunity to right constitutional wrongs. Federal

courts will not entertain a federal habeas claim unless it has been

“fairly presented to the state courts.” Picard v. Connor, 404 U.S.

270, 275 (1971). A claim will have been fairly presented to the

state courts if the substance of the federal habeas claim and,

specifically, the constitutional nature of that claim was presented

to the state court. “Some variations in the factual allegations or

legal theory in a federal habeas claim are permitted so long as

they do not ‘fundamentally alter’ the claim that was advanced in

state court.” Moses v. Branker, No. 06-8, 2007 WL 3083548, at *2

(4th Cir. Oct. 23, 2007) (unpublished).

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 We reject the Commonwealth’s invitation to complicate

needlessly the restrictions on a state prisoner’s ability to pursue

relief from constitutional errors in a federal habeas petition.

The Commonwealth’s understanding of what constitutes a “claim” is

insupportable. Cairns’s “claim” is that the exclusion of the

complaining witness’s journals violated his Confrontation Clause

and due process rights, and the Commonwealth does not argue that

this federal constitutional claim was not properly exhausted in the

state courts. The correctness of the standard of review employed

by the Court of Appeals of Virginia is relevant to our analysis

only because it dictates whether we accord the state court decision

AEDPA deference.

The following procedural facts are undisputed. Cairns first

attempted to admit the journals pretrial by filing a motion in

limine. He sought to admit them at trial and, when he was denied,

made a proffer to create a thorough record. He cited their

exclusion as error in his direct appeal to the Court of Appeals of

Virginia and in his petition for appeal to the Supreme Court of

Virginia. He complained of their exclusion in his state habeas

petition filed with the state trial court and in his subsequent

petition for appeal to the Supreme Court of Virginia. He filed a

motion asking the Supreme Court of Virginia to reconsider its

decision to deny his petition for appeal. Cairns was required to

give the state courts a fair opportunity to consider the substance

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of his constitutional claim. We find that he did so and that he

has properly exhausted his claim.2

B.

We review de novo the district court’s denial of a § 2254

petition. McNeil v. Polk, 476 F.3d 206, 210 (4th Cir. 2007). The

ultimate issue we must determine is whether exclusion of the

journals was harmless error.3 Because the Court of Appeals of

Virginia has already decided this issue, we may only grant relief

if that decision “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).4

The Supreme Court has articulated two standards for evaluating

harmless error. On direct appeal, federal constitutional errors

must be assessed with the “harmless beyond a reasonable doubt”

standard set forth in Chapman v. California, 386 U.S. 18, 24

(1967). On collateral review, federal constitutional errors must

be evaluated using the “substantial and injurious” standard

2
The Commonwealth does not argue that Cairns failed to
properly exhaust his claim that the evidence presented at trial was
insufficient.
3
The Commonwealth conceded in its brief that the exclusion of
the journals was constitutional error.
4
Because the Supreme Court of Virginia summarily denied
without opinion Cairns’s petition for appeal, we examine the court
of appeals opinion—the last explained state court decision—to
determine whether that decision was contrary to or involved an
unreasonable application of clearly established federal law. See
Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991).

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articulated first in Kotteakos v. United States, 328 U.S. 750, 764-

65 (1946), and made applicable to habeas petitions in Brecht v.

Abrahamson, 507 U.S. 619, 623 (1993). If the court is “in grave

doubt about whether or not that error is harmless,” then the court

“should treat the error . . . as if it had a ‘substantial and

injurious effect or influence’” on the verdict. O’Neal v.

McAninch, 513 U.S. 432, 435 (1995).

Accordingly, under clearly established federal law, the Court

of Appeals of Virginia was obligated to determine whether the

exclusion of the journals was harmless beyond a reasonable doubt.

Cairns argues that the court of appeals erroneously applied the

Kotteakos-Brecht harmless error test adopted in the Commonwealth

for evaluating nonconstitutional errors. See Clay v. Commonwealth,

546 S.E.2d 728, 731-32 (Va. 2001). The Commonwealth maintains that

the court of appeals correctly applied the Chapman standard.

If we were to conclude that the court of appeals erroneously

applied the Kotteakos-Brecht standard, then we would conduct an

independent review of the error, using the same standard.

[I]n § 2254 proceedings, a court must assess the
prejudicial impact of constitutional error in a state-
court criminal trial under the ‘substantial and injurious
effect’ standard set forth in Brecht . . . whether or not
the state appellate court recognized the error and
reviewed it for harmlessness under the ‘harmless beyond
a reasonable doubt’ standard set forth in Chapman.

Fry v. Pliler, 127 S. Ct. 2321, 2328 (2007). Thus, we would review

de novo the record and decide whether it was highly probable that

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the exclusion of the journals had a substantial and injurious

effect or influence in determining the guilty verdict.

The Court of Appeals of Virginia found that the journals had

been excluded improperly for two reasons. First, “the journals

were not offered to prove the kind of ‘sexual conduct’ prohibited

by” the rape shield statute. Cairns, 579 S.E.2d at 347. Second,

the journals were proper impeachment under the circumstances of the

case. Id. After concluding that exclusion of the journals was

error, the court of appeals evaluated the harmlessness of that

exclusion. The court observed that “the error [was] harmless only

if [it could] say beyond a reasonable doubt that the error did not

affect the verdict.” Id. The court of appeals then reviewed the

“overwhelming evidence” of Cairns’s guilt and concluded that

“beyond a reasonable doubt and without usurping the fact finding

function, . . . the verdict would have been the same had the

journals been introduced into evidence.” Id. at 348.

Recitation of the phrase “beyond a reasonable doubt” will not,

by itself, evidence that the state court actually conducted the

correct harmless error analysis. Sochor v. Florida, 504 U.S. 527,

541 (1992) (O’Connor, J., concurring). Having carefully reviewed

the substance of the court of appeals’ opinion, however, we believe

that the court properly evaluated the exclusion using the Chapman

“harmless beyond a reasonable doubt” standard. Nevertheless, we

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also independently conclude that the exclusion of the journals did

not have a substantial and injurious effect on the verdict.

“In order for an error to have a ‘substantial and injurious

effect or influence,’ it must have ‘affected the verdict.’” Cooper

v. Taylor, 103 F.3d 366, 370 (4th Cir. 1996). An error will not

have had a substantial or injurious effect or influence if the

evidence against the defendant was “so powerful, overwhelming, or

cumulative that the error simply could not reasonably be said to

have substantially swayed” the verdict. Id. Of course, the

harmfulness of the error must be evaluated in the context of the

trial as it occurred. Thus, in addition to the strength and

quantity of properly admitted evidence of guilt, we also consider

“the extent to which the error permeated the” trial and “the

centrality of the issue affected by the error.” Levasseur v. Pepe,

70 F.3d 187, 193 (1st Cir. 1995). See, e.g., United States v.

Rhynes, 218 F.3d 310, 323 (4th Cir. 2000) (en banc) (concluding

that exclusion of the defendant’s only witness for violation of a

sequestration order was not harmless error because it deprived the

defendant of the ability to challenge the government on numerous

issues); Satcher v. Pruett, 126 F.3d 561, 567-69 (4th Cir. 1997)

(evaluating the harmfulness of an in-court identification by

considering its effect on identification evidence because “the

Commonwealth’s case depended on solid and persuasive identification

evidence”).

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 There was strong, uncontradicted evidence of Cairns’s guilt

introduced at trial. Although there was no physical evidence

linking Cairns to the sexual assault of either girl or the

manufacture of pornography, the prosecution offered ample direct

evidence. W, Cairn’s stepdaughter, testified that she had been

first sexually assaulted by her mother and Cairns on February 16,

1998. She described in graphic detail that encounter and several

others that occurred before Martin removed her from the home on

October 11, 1998. N, Cairns’s daughter, also testified that she

had been sexually abused by her parents. Each girl testified that

the other girl had also been abused. P, Cairns’s son, testified

that he had found a videotape that showed N giving his father oral

sex. This is not, as counsel suggested at oral argument, a “he-

said, she-said” situation where the only evidence against the

defendant is the testimony of the complaining witness. Instead, it

is a “he-said, they-said” case where the two complaining witnesses

and their brother have corroborated each other’s stories. Thus,

the credibility of one witness is not of such paramount importance.

Exclusion of the journals was not an error that permeated the

entire trial. Rather, it limited only one avenue of cross

examination of one witness, W. Cairns was free to cross examine W

about a range of other topics, including discrepancies between her

testimony at the present trial and her testimony at his first

trial. The exclusion of the journals also did not impair Cairns’s

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ability to cross examine the remaining Commonwealth witnesses,

including N and P.

Furthermore, it is important to note that the journals do not

contradict W’s claim that she had been abused. Nor do they

directly contradict any material matter to which she testified in

court. Cairns sought to introduce the journals to highlight their

contemporaneous silence with regard to sexual abuse and to

demonstrate that W lied to the police when she told them that she

had recorded the sexual abuse in her journals. Given this minimal

impeachment value and the corroborative testimony of two other

witnesses (all of whom Cairns was able to cross-examine), we can

confidently say that the exclusion of the journals was not an error

that permeated the entire trial.

Finally, we find that although the excluded evidence was

relevant to a central issue—credibility—the impact on that issue

was minimal.

As demonstrated by the proffer Cairns made, cross-examination

of W using the journals would have brought out the following facts.

First, during the time period that W was being sexually assaulted

by her parents, she was engaging in consensual sex with people her

own age. Second, W listed all of her sexual partners in her

journals and did not include her parent’s actual names—Robert and

Alice. Third, the only reference to sexual abuse was an entry made

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after her parents had been arrested.5 W also stated that she used

code names for her parents and those code names appear in the list

of her sexual partners. She explained that she did not use her

parents’ real names for fear of someone finding the journals and

also because she did not want to be reminded of the abuse if she

read them. Finally, she testified that she did not recall telling

the police that her journals recounted the sexual abuse by her

parents.

Cairns’s defense theory was that the girls had fabricated

tales of sexual abuse in order to punish him for being a strict

disciplinarian. His belief that the admission and use of the

journals would have lent credence to this theory was simply not

borne out by the proffer. W confirmed that the events relayed in

her journals were real and offered a plausible explanation for why

she had not described sexual encounters with her parents in the

journal. Throughout cross examination she maintained that both she

and her sister had been sexually abused by their parents,

notwithstanding the fact that she had not included the abuse in her

private journals.

The central issue in this case was credibility and certainly

the journals were relevant to W’s credibility. However, as defense

5
This was the first entry in the second journal. The second
journal began on March 13, 1999, five months after Cairns and his
wife were arrested. W’s first journal was contemporaneous with the
abuse, and it spanned from August 24, 1997, to August 25, 1998.

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counsel demonstrated during his proffer, the journals had minimal

impeachment value, much of which was diffused by W’s believable

explanations. Even if the court believed that W had lied to the

police about the contents of her journals and that the absence of

sexual abuse descriptions in her journals was probative of whether

the abuse had occurred, that would not impeach her credibility to

the extent necessary to make the fact of the sexual abuse itself

doubtful. In light of these considerations and the fact that the

journals have no bearing on the credibility of the remaining

witnesses, we conclude that the central issue of credibility was

not so affected by the error that we have grave doubts as to the

validity of the verdict.

After a careful review of the record, we can confidently say

that exclusion of W’s journals and Cairns’s subsequent inability to

cross-examine her using the journals, did not have a substantial

and injurious effect on the verdict and, thus, their exclusion was

harmless.6

6
The Commonwealth argues that the harmlessness of the error is
further supported by the state trial court’s statement at
sentencing that the journals would not have affected his decision.
We reject this argument. The court’s statement was directed to the
mitigation value of the journals in the context of sentencing and
thus had no bearing on what the verdict would have been had the
court considered the journals.

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 III.

We turn next to the sufficiency of the evidence. Cairns

specifically asserts that the Commonwealth failed to prove

intimidation, which is a necessary element of the two sodomy

convictions and one rape conviction with regard to W.7 See Va.

Code Ann. §§ 18.2-61(A)(i), -67.1(A)(2) (Supp. 2007).8 And, more

generally, he claims that there was insufficient evidence adduced

at trial to sustain all of his convictions.

“[T]he Due Process Clause of the Fourteenth Amendment protects

a defendant in a criminal case against conviction ‘except upon

proof beyond a reasonable doubt of every fact necessary to

constitute the crime with which he is charged.’” Jackson v.

Virginia, 443 U.S. 307, 315 (1979) (quoting In re Winship, 397 U.S.

358, 364 (1970)). Accordingly, the Court of Appeals of Virginia

was obligated to decide, “after viewing the evidence in the light

most favorable to the prosecution, [whether] any rational trier of

fact could have found the essential elements of the crime[s] beyond

a reasonable doubt.” Id. at 319 (emphasis omitted) (citing Johnson

v. Louisiana, 406 U.S. 356, 362 (1972)).

7
According to the Virginia statutes the Commonwealth could
have proceeded under a theory of force or threat, instead of
intimidation. However, the Commonwealth announced at trial that it
would not introduce evidence of force or threat.
8
Because N was under the age of thirteen at the time of the
sexual abuse, the Commonwealth was not required to prove force,
threat or intimidation. See Va. Code Ann. §§ 18.2-61(A)(iii), -
67.1(A)(1) (Supp. 2007).

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 Because the court of appeals considered the merits of Cairns’s

sufficiency of the evidence claim, we may only review that claim if

the court of appeals reached a conclusion “that was based on an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.”9 28 U.S.C. § 2254(d)(2).

We must presume that determinations of factual issues made by the

court of appeals are correct unless Cairns rebuts this presumption

with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Lenz

v. Washington, 444 F.3d 295, 300 (4th Cir. 2006). We conclude that

AEDPA deference is due the decision of the court of appeals and

therefore will not consider the merits of Cairns’s sufficiency

claims.

A.

In order to convict Cairns of forcible sodomy, the trial court

had to find beyond a reasonable doubt that Cairns had engaged in

oral sex with W, that the act had been against W’s will, and that

it had been accomplished by intimidation. See Va. Code Ann.

§ 18.2-67.1 (Supp. 2007). Similarly, in order to convict him of

rape, the trial court had to find beyond a reasonable doubt that

Cairns had engaged in sexual intercourse with W against her will

and by intimidation. See Va. Code Ann. § 18.2-61 (Supp. 2007).

9
In his brief, Cairns acknowledges that the court of appeals
applied the correct law.

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 The Court of Appeals of Virginia properly focused in on the

intimidation element in both crimes. Under Virginia law,

intimidation may be proved by showing that the victim feared bodily

harm, was subject to the dominion and control of the defendant such

that her mind and will were overborne, or was vulnerable to the

psychological pressure imposed by the defendant. See Cairns, 579

S.E.2d at 351 (citing Sabol v. Commonwealth, 553 S.E.2d 533, 537

(Va. Ct. App. 2001)). Fear of the bodily harm accompanying sexual

assault is sufficient under Virginia law to satisfy the

intimidation element. Also relevant are the victim’s age and the

relationship between the victim and the defendant. Id. (citing

Commonwealth v. Bower, 563 S.E.2d 736, 738 (Va. 2002)).

In reviewing the evidence that had been presented at trial,

the court of appeals noted W’s testimony that she had not wanted to

engage in sexual activity with Cairns, that resisting him would

have been futile because he was more powerful than her, and that

she had been afraid of him when he was angry. Id. The court of

appeals remarked upon the familial relationship between Cairns and

W and W’s particular helplessness because her mother had

participated in the abuse. Finally, the court highlighted evidence

demonstrating that the Cairns household had been a violent place,

including testimony that Cairns had physically abused his wife and

one of his sons in W’s presence. The court of appeals found that

“[c]redible evidence support[ed] the trial court’s finding that the

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Commonwealth [had] proved intimidation beyond a reasonable doubt.”

Id. at 352.

We agree. Even if W’s journals had been admitted, they would

not have rebutted any of the aforementioned evidence of

intimidation. The court of appeals did not base its decision upon

an unreasonable interpretation of the facts.

B.

Cairns was convicted of two counts of forcibly sodomizing W

and one count of raping her. He was convicted of one count of

forcibly sodomizing N. His conviction for manufacturing

pornography was based on videotaping the sexual abuse. He contends

that the evidence is insufficient as a matter of law to support any

of these convictions.

The court of appeals properly considered the evidence in the

light most favorable to the Commonwealth, the prevailing party

below. In so doing, it held that “[c]redible evidence support[ed]

the trial court’s finding.” Id.

The court of appeals found that, viewed in the light most

favorable to the Commonwealth, the evidence at trial showed that

Cairns first attempted to rape W on February 16, 1998, his

birthday. In April and May of that year he sodomized her by

forcing her to give and receive oral sex. During a game of strip

poker with his wife and W, he both raped W and forced her to

perform oral sex on him. In the summer of 1998, he videotaped

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himself giving and receiving oral sex with both W and N. One of

the videos was found and viewed, albeit briefly, by his son P who

testified that the tape showed N performing oral sex on their

father. At the time of the abuse, N was under thirteen years of

age. W testified that she had not wanted to engage in sexual

activities with her father but that fighting him had not been an

option.

It was reasonable for the court of appeals to conclude that

there was sufficient evidence from which a rational trier of fact

could conclude that the Commonwealth had proved “beyond a

reasonable doubt of every fact necessary to constitute the” crimes

with which Cairns was charged. In re Winship, 397 U.S. at 364.

Therefore, we accord that decision AEDPA deference and will not

review the merits of Cairns’s sufficiency claim.

IV.

Because we conclude that the district court correctly rejected

Cairns’s federal constitutional claims, the judgment of the

district court denying his § 2254 petition is

AFFIRMED.

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