Moore v. Marr

F I L E D
United States Court of Appeals
Tenth Circuit

JUL 3 2001
PUBLISH

UNITED STATES COURT OF APPEALS PATRICK FISHER
Clerk
TENTH CIRCUIT

STEPHEN MOORE,

Petitioner - Appellant,
v.
No. 00-1015
RICHARD MARR and THE
ATTORNEY GENERAL FOR THE
STATE OF COLORADO,

Respondents - Appellees.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 95-S-2454)

Howard A. Pincus, Assistant Federal Public Defender (Michael G. Katz, Federal
Public Defender, with him on the briefs), Denver, Colorado, for Petitioner-
Appellant.

Paul E. Koehler, Assistant Attorney General (Ken Salazar, Attorney General, with
him on the brief), Denver, Colorado, for Respondents-Appellees.

Before EBEL and LUCERO, Circuit Judges, and VRATIL, * District Judge.

LUCERO, Circuit Judge.

*
The Honorable Kathryn H. Vratil, United States District Judge for the
District of Kansas, sitting by designation.
 Stephen Moore was convicted in 1988 by a Colorado jury of first-degree

assault, a crime of violence for stabbing, and one count of felony menacing for

wielding a gun. He was sentenced to twenty-six years in prison. After exhausting

his state court remedies, he sought habeas corpus relief in federal district court.

The district court denied his request for habeas relief and also denied his request

for a certificate of probable cause. Our jurisdiction is premised on 28 U.S.C.

§ 1291 and 28 U.S.C. § 2253. Although we grant Moore’s request for a

certificate of appealability (“COA”) on all issues, 1 we affirm the district court’s

denial of his request for habeas relief. 2

I

On July 4, 1987, Moore, accompanied by James Klevenz, went to the

apartment of a friend and sometime employer, Kenneth Goudie, seeking $150

Goudie owed him. When Moore arrived, he found Goudie on his couch—Goudie

had spent the entire night before drinking and playing cards. Moore came armed

with a cane, a knife, and a gun, allegedly because he feared Goudie’s temper.

1
Because the Antiterrorism and Effective Death Penalty Act of 1996
applies to Moore’s right to appeal, see infra Part II.A, we construe his request for
a certificate of probable cause as a request for a COA. See, e.g., Tillman v.
Cook, 215 F.3d 1116, 1120 (10th Cir. 2000).
2
We have considered appellant’s pro se filings in deciding this appeal. To
the extent necessary, we have construed such filings as motions to file
supplemental documents on appeal and have granted those motions.

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 Not surprisingly, the visit by the well-armed creditor to the intoxicated

debtor soon took a violent turn. At trial, Moore admitted he began the scuffle,

which later ended in Goudie’s stabbing, by beating Goudie with the cane. Goudie

managed to grab the cane from Moore and then beat Moore with the cane,

breaking Moore’s glasses and knocking Moore to his knees. While on his knees

Moore stabbed Goudie in the chest, puncturing his lung and causing him to suffer

cardiac arrest. After stabbing Goudie, Moore pointed a gun at him and demanded

his money, pursuant to which Goudie gave him $200.

The sole factual dispute at trial was whether Moore stabbed Goudie in self-

defense. Moore claimed that after he began beating Goudie with the cane, there

was a break in the action. He alleged that Klevenz broke up the initial fight and

then Goudie attacked him.

Moore raises three arguments in support of his appeal. First, he argues he

was denied effective assistance of counsel at trial because his counsel failed to

impeach Goudie with a prior inconsistent statement and failed to obtain testimony

from two potential witnesses. Second, he alleges the state committed a Brady

violation when it did not disclose that Goudie, the key witness for the

prosecution, had applied for and received victim compensation payments. Finally,

Moore asserts his Confrontation Clause rights were violated by the limits the state

court placed on his ability to cross-examine Goudie.

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 II

A. Standard of Review

Appellant asserts that the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”) does not apply to his appeal because his original habeas corpus

petition was filed before the effective date of the Act; appellees do not appear to

disagree with that assertion. In Slack v. McDaniel , 529 U.S. 473, 481–82 (2000) ,

however, the Supreme Court clearly rejected appellant’s position and held that

post-AEDPA law governs the right to appeal in any case where the notice of

appeal was filed after the effective date of AEDPA. See also English v. Cody ,

241 F.3d 1279, 1281 (10th Cir. 2001); Tillman v. Cook , 215 F.3d 1116, 1120–21

(10th Cir. 2000).

Appellees’ failure to object to appellant’s argued-for standard of review is

understandable. As the Court concluded in Slack , AEDPA codifies the pre-

AEDPA certificate of probable cause standard announced in Barefoot v. Estelle ,

463 U.S. 880 (1983), with the exception that AEDPA’s requirement for the right

to appeal is a “substantial showing of the denial of a constitutional right,” 28

U.S.C. § 2253(c)(2), while the pre-AEDPA requirement was a “substantial

showing of the denial of a federal right.” Slack , 529 U.S. at 483–84. In Tillman

we reviewed the Court’s ruling in Slack and determined that although it “may

have some effect on non-constitutional claims” raised in petitions for habeas

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corpus, it does not change the standard for reviewing constitutional claims.

Tillman , 215 F.3d at 1120. The standard for reviewing a habeas petitioner’s right

to appeal announced in Barefoot is as follows:

[P]etitioner need not show that he should prevail on the merits. He
has already failed in that endeavor. Rather, he must demonstrate that
the issues are debatable among jurists of reason; that a court could
resolve the issues [in a different manner]; or that the questions are
adequate to deserve encouragement to proceed further.

463 U.S. at 883 n.4 (citations and internal quotations omitted). We will grant

habeas relief only if petitioner shows the alleged state court error “‘deprived him

of fundamental rights guaranteed by the Constitution of the United States.’”

Tillman , 215 F.3d at 1121 (quoting Brown v. Shanks , 185 F.3d 1122, 1124 (10th

Cir. 1999)).

To clear up any future confusion in cases where a petition for habeas

corpus was filed with the district court prior to AEDPA and the notice of appeal

was filed with this Court after AEDPA, we note that Slack overrules our prior

precedent holding that AEDPA did not apply in such situations. See, e.g. ,

Rodgers v. Wyo. Att’y Gen. , 205 F.3d 1201, 1202 n.1 (10th Cir. 2000); Fowler v.

Ward , 200 F.3d 1302, 1307 (10th Cir. 2000).

Although AEDPA clearly governs Moore’s right to appeal in this case, pre-

AEDPA law governs our review of petitioner’s claims. See English , 241 F.3d at

1281; Tillman , 215 F.3d at 1121. We review legal issues de novo and the federal

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district court’s findings of fact for clear error. Tillman , 215 F.3d at 1121. Under

pre-AEDPA law, any findings of fact made by the state courts are entitled to a

presumption of correctness. Id. ; see also 28 U.S.C. § 2254(d) (1994).

B. Effective Assistance of Counsel

Moore claims his trial counsel was ineffective because he failed to impeach

Goudie with a prior inconsistent statement and because he failed to obtain the

testimony of two potential witnesses for trial. Moore’s ineffective assistance of

counsel claim is a mixed question of law and fact that we review de novo. Sellers

v. Ward , 135 F.3d 1333, 1344 (10th Cir. 1998).

The test for establishing constitutionally ineffective assistance of counsel is

twofold. Petitioner must demonstrate that his counsel’s performance fell below

an objective standard of reasonableness and that counsel’s substandard

performance prejudiced his defense. Strickland v. Washington , 466 U.S. 668,

687, 688 (1984). To meet the first prong, petitioner must demonstrate that the

omissions of his counsel fell “outside the wide range of professionally competent

assistance.” Id. at 690. This standard is “highly demanding.” Kimmelman v.

Morrison , 477 U.S. 365, 382 (1986). Strategic or tactical decisions on the part of

counsel are presumed correct, Strickland , 466 U.S. at 689, unless they were

“completely unreasonable, not merely wrong, so that [they] bear no relationship to

a possible defense strategy,” Fox v. Ward , 200 F.3d 1286, 1296 (10th Cir. 2000)

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(quotation and citations omitted) (alteration in Fox ). To prevail on the second,

prejudice prong , petitioner “must show there is a reasonable probability that, but

for his counsel’s unprofessional errors, the result of the proceeding would have

been different.” Strickland , 466 U.S. at 694. This, in turn, requires the court to

focus on “the question whether counsel’s deficient performance render[ed] the

result of the trial unreliable or the proceeding fundamentally unfair.” Lockhart v.

Fretwell , 506 U.S. 364, 372 (1993).

1. Failure to Impeach

During the prosecution’s direct examination, Goudie admitted he had been

drinking all night before his encounter with Moore and had not gone to sleep until

10 a.m. on July 4. He also testified he had not been using any drugs, aside from

alcohol, nor had anybody else at the party. He reiterated this during cross-

examination, asserting further that he did not use drugs as a general matter.

Although Moore’s counsel had access to Goudie’s medical records, counsel did

not attempt to impeach Goudie by cross-examining him on his admission to

hospital personnel the day of the stabbing that he had been drinking and had

“snorted coke.” 3
(II R.O.A., IV State R. Def.’s ex. 23 at 3.)

3
Counsel did attempt to impeach Goudie’s assertion that he had not done
drugs with a photo of his living room from the day of the incident displaying what
was arguably a roach clip and cocaine paraphernalia, but the court sustained the
prosecution’s objections to this line of questioning. Additionally, the court
(continued...)

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 Moore argues his Sixth Amendment right to effective assistance of counsel

was violated by his trial counsel’s failure to impeach Goudie, the prosecution’s

key witness. If counsel had cross-examined Goudie on the basis of his prior

inconsistent statement in his medical record, Moore argues, counsel could have

destroyed Goudie’s credibility with the jury. Since the trial’s outcome depended

on the jury’s assessment of Goudie’s word against Moore’s concerning the

allegation that Moore acted in self-defense, the argument continues, counsel’s

failure to impeach Goudie, or even to attempt to do so, was ineffective as well as

prejudicial.

In order to assess Moore’s ineffective assistance of counsel claim, we

briefly review the evidence presented at trial. It is uncontroverted that Moore

came over to Goudie’s house bearing three weapons: a gun, a knife, and a cane.

It is further uncontested that Moore beat Goudie with the cane, stabbed him with

the knife, and pointed the gun at him. 4
At trial Moore’s credibility was called

into doubt by the introduction of his two prior felony convictions, one of which

occurred within a year of the trial and involved assault of a police officer.

(...continued)
3

allowed Moore to testify to his belief, based on his prior experiences with the
victim, that Goudie was on cocaine at the time of the incident.
4
Moore admitted at trial that he came to Goudie’s bearing a gun, but in his
earlier statement to police he flatly and repeatedly denied having a gun at the time
of the incident.

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Importantly, Goudie’s story that he was attacked by Moore was strongly supported

by the testimony of his neighbors, one of whom did not even know Goudie prior

to the incident. Conversely, Moore’s story was not supported by any of the

witnesses. For instance, Moore testified he was forced out the door of Goudie’s

apartment as Goudie beat him, he was then pushed up against the railing of the

building, and finally he had no choice but to stab Goudie. Goudie’s neighbor and

acquaintance, Michael Hartford, testified that he saw Moore advancing on Goudie

while Goudie screamed “Don’t come near me anymore. Don’t come near me

anymore.” (II R.O.A., XII State R. at 152.) He also testified that Goudie was

trying to keep Moore away as Moore tried to stab him with the knife. Another

neighbor, Richard DeBarris, who did not know Goudie until the incident, testified

that he saw Moore stab Goudie as the two backed out of the apartment, and that

Goudie was backed up by Moore’s approaches, not vice versa.

Although counsel’s failure to impeach a key prosecution witness is

potentially the kind of representation that falls “outside the wide range of

professionally competent assistance,” Strickland , 466 U.S. at 690, we need not

examine that issue because we hold Moore has failed to demonstrate prejudice

from his counsel’s omissions and thus has failed to establish he was denied

effective assistance of counsel, id. at 697 (“If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course

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should be followed.”). Our review of the trial transcript shows that overwhelming

evidence against Moore was presented at trial, even absent Goudie’s testimony.

In addition, Goudie testified that he had been drinking heavily not long before the

fight ensued. 5
Accordingly, even if Goudie had been impeached we cannot

conclude that the outcome would have been different. As Moore’s trial counsel

stated:

This was never a great case from the beginning unfortunately. . . .
You look at it, break it down to the bottom line facts. You’ve got a
man [Moore] who is going to testify with two prior felony
convictions who’s going over armed with a cane, a gun and a knife,
admits to the police and admits on the stand that he began the
argument, began the fight, stabbed the victim, and then claims self
defense. With all due respect to Mr. Moore, that’s a hard story to
sell to a jury.

(II R.O.A., VII State R. at 86–87.)

2. Failure to Obtain Testimony from Marta Musich

Moore also asserts that his counsel was ineffective because he failed to

obtain the testimony of Marta Musich. She allegedly would have testified to

5
We acknowledge that the effects of cocaine may be different than the
effects of alcohol, as is the social stigma associated with the two drugs. Thus,
evidence that Goudie used cocaine at or near the time of the fight and then lied
about it on the stand could possibly have had an impact on the jury’s perceptions
of his credibility, volatility, and ability to remember clearly the events of the
fight. We note, however, that the record does not contain information regarding
the different effects of the two drugs and that, even if it did, Moore still could
not meet the prejudice prong of Strickland due to the other, overwhelming
evidence introduced against him at trial.

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Goudie’s reputation for violence, thus justifying Moore’s need to go to Goudie’s

house armed and supporting his claim that he acted in self-defense.

We conclude that counsel’s failure to obtain Musich’s testimony, even if

completely unreasonable, 6
did not prejudice Moore’s defense. Although Moore

was the only person to testify directly as to Goudie’s recent violent history, the

prosecution did not try to contradict Moore’s assertion. 7
Whether or not Goudie

was a violent man with a history of attacking others, the facts at trial clearly

established that Moore hit Goudie first and eventually stabbed him. Additional

6
Our review of the record leaves us less certain than the district court that
“it does not appear that defense counsel could easily have procured [Musich’s]
presence at trial.” (I R.O.A. Doc. 50 at 3.) Nevertheless, we need not determine
the likelihood of Musich’s presence in order to resolve Moore’s claim.
7
Sergeant David Maclaughlin, a police officer who investigated the
stabbing, had an opportunity to refute Goudie’s violent record but did not. (See II
R.O.A., XII State R. at 177 (“Q: [Moore] also indicated to you that he knew on
occasion how violent Mr. Goudie could be, is that correct, regarding an incident
where Mr. Goudie had crushed somebody’s cheekbone? . . . [Maclaughlin]: Yes.
I think it was a Mr. Steele . . . He asked me if I could—his words were, ‘Have
you checked Goudie’s record?’ and I said, ‘Yes.’”).)
Moore points us to the prosecutor’s statements in closing argument that
Moore was the only one to testify to Goudie’s violent nature. (See II R.O.A., XIII
State R. at 21 (“Stephen Moore tells you he knew that Kenneth Goudie was
violent. Stephen Moore is the only person that told you that, he is the only person
that you heard that from. There were other witnesses up there, they could have
been asked that question, too.”); id. at 23 (“[Moore is] the only one that told you
anything about what a bad guy Ken Goudie is. That’s the only person you have
got it from.).) Although the prosecutor focuses on the fact that Moore’s
testimony stood alone, the fact remains that the prosecution did not introduce
evidence to refute Goudie’s alleged reputation for violence and that Moore’s
statements were thus uncontroverted.

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evidence of Goudie’s violent character would have done nothing to refute the

uncontroverted fact that Moore used the three weapons he carried with him

against Goudie. Nor would such evidence mitigate Moore’s admission that he

carried the knife with him as a general matter. 8
Finally, evidence of Goudie’s

violent temper could do nothing to mitigate the evidence of Moore’s own history

of violence, in particular his admission at trial that when he loses his temper he

hurts people. 9

3. Failure to Obtain Testimony from James Klevenz

We also affirm the district court’s denial of Moore’s ineffective assistance

of counsel claim premised on the failure of his counsel to obtain the testimony of

James Klevenz. Klevenz allegedly would have testified that he broke up the first

fight between Goudie and Moore by inserting himself in the middle and that the

8
In response to the question “Do you ordinarily take a club, knife and gun
with you when you go to people’s houses?” Moore stated “Sometimes I carry a
gun when I think I have been threatened. The stick is a walking stick, it was very
light, and the knife, I carried it.” (II R.O.A., XII State R. at 198.)

The following discussion occurred during the prosecution’s cross-
9

examination of Moore:

Q: You have a real bad temper, right?
A: No, not really.
Q: When you lose it, it’s really bad, isn’t it?
A: Yes, but I don’t lose it very often.
Q: But when you lose it, you hurt people, too, right?
A: Yes.

(Id. 202.)

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stabbing resulted from a second fight, initiated by Goudie, and was an act of self-

defense.

In state post-conviction proceedings, Moore testified he told his trial

counsel that Klevenz was likely either in New Jersey or Pennsylvania. Klevenz,

however, testified he never left Colorado. Moore’s trial counsel enlisted the aid

of an investigator to attempt to find Klevenz, and the investigator made continued

efforts to try to locate him. Klevenz, however, testified he did not want to be

found and actively avoided service. 10
Not only did he avoid service of a subpoena

10
Klevenz’s own testimony at Moore’s state post-conviction proceedings
shows he had no intention of showing up at any trial until he had cleared up his
own legal problems. (See II R.O.A., XVI State R. at 112 (“I was wanted for a lot
of things at the time. That’s why I didn’t show up at the original trial.”); id. at
113 (“My only reason I didn’t testify was I was wanted for various crimes and I
was scared and I wasn’t coming to court for nobody. . . . They tried to serve [a
subpoena] on me. I looked out the window and didn’t answer.”).) Particularly
significant was the following testimony:

[Klevenz]: Like I said, I was wanted for numerous violations. I had
left the state earlier, couple years earlier. I was on parole—not
parole, probation. . . . I was wanted for numerous things and I was
worried about getting caught. . . . I even–the police, I didn’t even
give them my right name. I gave them Raymond Gotnet. . . .
[Question]: Why didn’t you come forward later?
[Klevenz]: Since then, I’ve . . . taken care of everything that I had
against me.
[Question]: Would you appear at another trial?
[Klevenz]: I certainly would.

Id. at 116. Unfortunately for Moore, the necessary predicate of Klevenz’s
clearing up his record did not occur until after Moore’s trial.

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by Moore, but he avoided service by the prosecution, who also would have liked

him to testify.

The state court held an evidentiary hearing on the effectiveness of Moore’s

counsel, and we owe that court’s findings of fact a presumption of correctness.

28 U.S.C. § 2254(d) (1994). The court found that Moore, against the advice of

counsel, refused to ask for a continuance and to waive his right to speedy trial.

Counsel advised Moore that a continuance would allow him to make additional

efforts to locate Musich and Klevenz and would also give him further time to

prepare. The trial court found counsel’s testimony at the hearing credible

concerning Moore’s own strategic error, namely his estimate that the prosecution

would not be able to prepare for trial within the speedy trial period. Accordingly,

the court concluded that Moore’s failure “to follow counsel’s advice in obtaining

a continuance of the trial was the sole contributing factor in defense counsel’s

inability to locate and present witnesses.” Colorado v. Moore , No. 87 CR 903,

slip op. at 11 (Adams County, Colo. Dist. Ct. Dec. 11, 1991).

In this appeal, Moore argues that because the state court did not make a

factual finding concerning whether Klevenz could have been located before trial,

the federal court should have held an evidentiary hearing on that issue. He

attempts to argue that the state public defender’s lack of knowledge concerning

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what the investigator did to try to locate Klevenz precludes a finding that

reasonable efforts were made.

We conclude that the hypothetical ability to locate Klevenz before trial is

not conclusive with regard to Moore’s counsel’s effectiveness. To be entitled to

an evidentiary hearing, Moore would have to “make allegations which, if proved,

would entitle him to relief.” Stouffer v. Reynolds , 168 F.3d 1155, 1168 (10th Cir.

1999) (quotation omitted). Even if he proved Klevenz could have been found, he

would not be entitled to relief because, as the district court concluded, “defense

counsel’s efforts were reasonable.” (I R.O.A. Doc. 50 at 5.) Klevenz actively

avoided service, Moore gave his counsel incorrect information regarding

Klevenz’s whereabouts, Moore refused to waive his speedy trial right in order to

give counsel additional time to locate Klevenz despite counsel’s advice, and

counsel employed a professional investigator to find Klevenz. Evaluating “[t]he

reasonableness of counsel's performance . . . from counsel's perspective at the

time of the alleged error and in light of all the circumstances,” Kimmelman , 477

U.S. at 381, we simply can not conclude counsel’s performance fell “outside the

wide range of professionally competent assistance,” Strickland , 466 U.S. at 690.

Accordingly, we need not reach the prejudice prong of the ineffective assistance

of counsel test, and we affirm the district court’s denial of Moore’s Sixth

Amendment claims.

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 C. Brady Violation

Moore’s next claim is a matter of first impression in this Court. He asserts

the prosecution committed a Brady violation by failing to disclose that Goudie

had applied for and received victim compensation payments. 11

Under Brady v. Maryland , 373 U.S. 83, 87 (1963), the prosecution violates

a defendant’s due process rights when it fails to disclose evidence favorable to

the defendant that was material either to guilt or punishment. The Brady rule is

applicable where the suppressed evidence was impeachment evidence. United

States v. Bagley , 473 U.S. 667, 676 (1985). Evidence is material if there is a

reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different. Id. at 682. A “reasonable

probability” is a “probability sufficient to undermine confidence in the outcome”

of the case. Id. “‘The question is not whether the defendant would more likely

than not have received a different verdict with the evidence, but whether in its

absence he received a fair trial, understood as a trial resulting in a verdict worthy

of confidence.’” Moore v. Gibson , 195 F.3d 1152, 1165 (10th Cir. 1999) (quoting

11
The receipt of payments at issue is limited to Goudie’s receipt of
emergency pre-trial payments. The state court explicitly found that “any
payments made to the victim after trial are not discoverable.” Colorado v. Moore,
No. 87 CR 903, slip op. at 8. As Moore points out, however, the district court did
not make any findings with regard to the discoverability of the emergency
payments received before the conclusion of the trial or with regard to the mere
fact that Goudie had applied for such payments.

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Kyles v. Whitley , 514 U.S. 419, 434 (1995)). Whether the allegedly suppressed

evidence was material is a mixed question of law and fact that we review de novo.

Id.

Prior to trial, Goudie applied for just under $10,000 in victim compensation

payments under Colorado law. See Colorado Crime Victim Compensation Act,

Colo. Rev. Stat. §§ 24-4.1-100.1 to -304. He also applied for, and received, a

$500 emergency payment. The program administering such payments was run

with the help of the Colorado district attorney’s office.

Before this Court, Moore argues that the potential to receive victim

compensation payments gave Goudie a “powerful incentive to paint himself as the

‘victim’” (Appellant’s Br. at 42); i.e., Goudie had a $10,000 interest in testifying

that Moore attacked him and that Moore did not act in self-defense. See Colo.

Rev. Stat § 24-4.1-108(1) (entitling crime victims to compensation). According

to Moore, introduction of Goudie’s monetary interest in testifying would have

affected his credibility to the jury.

Goudie’s application for victim compensation payments and application for

and receipt of emergency victim compensation payments may well have been

“favorable” within the meaning of Brady. 12 Because Goudie’s receipt of such

12
We note that the determination of whether evidence is material under
Brady and thus should have been produced is a different question than whether
(continued...)

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payments depended on a finding by the Crime Victim Compensation Board that he

did not substantially provoke Moore in the course of the altercation, introduction

at trial of the fact of the application would have demonstrated that Goudie had a

financial interest in painting himself as the “victim.” See id. § 24-4.1-108(1)(e)

(disallowing compensation if the victim’s injuries are “substantially attributable

to his wrongful act or substantial provocation of his assailant”). Additionally,

introduction of Goudie’s application for emergency payments could have

supported an assertion that Goudie was in dire financial straits and thus had a

greater incentive to vilify Moore. While appellees correctly note a conviction is

not necessary for victim compensation payments to be approved by the Board, see

id. § 24-4.1-106(3), it belies common sense to think the Board would have

ignored a “not guilty by reason of self-defense” verdict in making its decision

regarding Goudie’s status as a “victim.” Furthermore, Goudie’s payment was

guaranteed in the event Moore was convicted. See id. §§ 24-4.1-108(1), -106(3).

Because we conclude Moore has not demonstrated that the victim witness

information was material, we need not determine whether the information was

12
(...continued)
the same evidence is admissible at trial. See Colo. Rev. Stat. § 24-4.1-107.5(2)
(deeming materials associated with an application for victim compensation
confidential and providing that such materials “shall not be discoverable unless
the court conducts an in camera review . . . and determines that the materials
sought are necessary for the resolution of an issue then pending before the
court”).

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favorable. Accordingly, we hold there was no Brady violation. As we discussed

in depth while analyzing Moore’s ineffective assistance of counsel claim based on

the failure to impeach Goudie with evidence that he had been doing drugs the

night before the incident, we do not conclude there was a “reasonable probability

that, had the evidence been disclosed to the defense, the result of the proceeding

would have been different.” Bagley, 473 U.S. at 676 (internal quotations

omitted). There was overwhelming evidence of guilt including: the testimony of

multiple witnesses that Moore was the aggressor, the fact that Moore went to

Goudie’s apartment heavily armed and employed each weapon before leaving, and

Moore’s admission that he started the fight. 13

13
Additionally, although we are mindful of the post hoc nature of Moore’s
counsel’s testimony that he would not have used the evidence to impeach Goudie
even if he had it, we, like the district court, find it enlightening with regard to the
ultimate issue of whether disclosure would have had a reasonable probability of
altering the result at trial. Moore v. Marr , No. 95-S-2454, order at 7 (D. Colo.
Nov. 30, 1999) (“While counsel’s statement, made several years after trial, is not
dispositive about whether the evidence actually would have been used, it does
provide some instruction on this issue.”). At the post-conviction hearings in
state court, Moore’s counsel testified as follows regarding the victim
compensation information:

[Moore’s Trial Counsel:] . . . I stipulated in this case to serious
bodily injury as a tactical decision . . . because I don’t want the jury
to have some doctor up there testifying in detail about a punctured
lung and cardiac arrest and what impact it had on the victim, how it’s
going to affect him, the scars, things like that. Juries hear about that.
They don’t like that. . . .
The problem with the Victim Compensation Fund . . . you open
(continued...)

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 D. Confrontation Clause

Moore’s final claim is that his Sixth Amendment Confrontation Clause

rights were violated by the limits placed on his counsel’s ability to cross-examine

Goudie. We review claims under the Confrontation Clause de novo. Fowler , 200

F.3d at 1307. Habeas relief is warranted only if there is an error that was not

13
(...continued)
up a door to allow the prosecution to then question as to what the
basis of the payments are, allowing them to bring in a lot of evidence
that I as a defense lawyer don’t want in front of juries in the first
place, let alone rehash with incredible details as to all different drugs
he’s given and things like that. It can backfire and in the end it can
outweigh it.
In this particular case, although it might have been useful and
it might have had an impact, the victim was stabbed and he did go to
the hospital and he did suffer a cardiac arrest and there were medical
problems. . . . The problem is that this opens up the door. . . .
Q In this case in your opinion would it have been a useful
impeachment tool?
A That’s hard to say. The jurors might have found it interesting. I
think it wouldn’t have been as useful as Mr. Moore would like it to
be because it would have opened up doors I wouldn’t have wanted to
open. If I recall correctly, when I became aware of the Victim
Compensation Fund thing, Mr. Moore and I had addressed it and
when I filed a motion for new trial, I chose not to address the issue
on a motion for new trial because I believe I decided it wasn’t
relevant, that it wouldn’t have made an impact in the case. That was
my call. I still maintain that it probably wouldn’t have made a
difference in the case . . . .

(II R.O.A., VII State R. at 73–74.) Additionally, Moore’s counsel testified that,
in his seven years of experience as a public defender, neither he nor any public
defender he knew had ever sought the discovery of, or tried to use, victim
compensation payment information to impeach a victim-witness’s testimony.

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harmless. Id. (citing Brecht v. Abrahamson , 507 U.S. 619, 637 (1993)). As a

general matter, federal habeas corpus relief does not lie to review state law

questions about the admissibility of evidence, see Estelle v. McGuire , 502 U.S.

62, 67–68 (1991), and federal courts may not interfere with state evidentiary

rulings unless the rulings in question rendered “the trial so fundamentally unfair

as to constitute a denial of federal constitutional rights,” Tucker v. Makowski ,

883 F.2d 877, 881 (10th Cir. 1989) (quotations and citations omitted).

At trial, the court sustained the prosecution’s motion to disallow cross-

examination of Goudie concerning a picture allegedly displaying drugs and drug

paraphernalia. The prosecution successfully argued that while such evidence may

have been relevant to Goudie’s ability to perceive the events in question, it was

not relevant for any other purposes, and thus its value was more prejudicial than

probative. Moreover, the court found that the important issue was whether

Goudie was intoxicated and not the type of intoxicant used. (II R.O.A., XII State

R. at 137 (“The only issue is whether or not he was intoxicated. He has already

indicated that he may have been. As to what type of intoxication, I don’t think

that is relevant and the court will sustain the objection.”).)

The Supreme Court has stated that the Confrontation Clause does not

prevent trial judges from imposing limits on cross-examination. Delaware v. Van

Arsdall , 475 U.S. 673, 679 (1986). In Van Arsdall , the Court noted that “trial

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judges retain wide latitude insofar as the Confrontation Clause is concerned to

impose reasonable limits on . . . cross-examination based on concerns about,

among other things, . . . prejudice, . . . or interrogation that is repetitive or only

marginally relevant.” Id. (emphasis added). In examining the extent of any

alleged harm caused by the court’s limitations we consider factors including “the

importance of the witness’ testimony in the prosecution’s case, whether the

testimony was cumulative, the presence or absence of evidence corroborating or

contradicting the testimony of the witness on material points, the extent of cross-

examination otherwise permitted, and, of course, the overall strength of the

prosecution’s case.” Id. at 684.

As an initial matter, we have already concluded that impeachment of

Goudie on his drug usage would not have had a reasonable probability of

changing the outcome of the trial; accordingly, even if the trial court erred, we

hold such error was harmless. In weighing the potential harm of the alleged error,

we note that the trial court did not limit altogether Moore’s ability to cross-

examine Goudie on drug use. In fact, the trial court allowed verbal cross-

examination on Goudie’s alleged drug use and even allowed Moore to testify as to

whether Moore believed Goudie was under the influence of drugs. The trial court

exercised its “wide latitude” of discretion to prevent the admission of a line of

questioning it reasonably assessed was more prejudicial than probative. Although

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the Confrontation Clause guarantees an opportunity for cross-examination, it does

“not [guarantee] cross-examination that is effective in whatever way, and to

whatever extent, the defense might wish.” Van Arsdall , 475 U.S. at 679

(quotations omitted).

III

Because the issues raised by Moore’s petition are “debatable among jurists

of reason,” Barefoot , 463 U.S. at 883, we GRANT Moore’s request for a COA;

however, because we do not conclude Moore was deprived of “fundamental rights

guaranteed by the Constitution of the United States,” Tillman , 215 F.3d at 1121

(quotation omitted), we AFFIRM the district court’s denial of habeas relief.

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