Bullock v. Carver

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 23 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

ARDEN BRETT BULLOCK,

Petitioner-Appellant,
v.
No. 00-4023
SCOTT CARVER, Warden, Utah State
Prison,

Respondent-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 2:92-CV-680-B)

Submitted on the briefs: *

Craig S. Cook, Attorney, Salt Lake City, Utah, for Petitioner-Appellant.

Thomas B. Brunker, Assistant Attorney General and Jan Graham, Utah Attorney
General, Salt Lake City, Utah, for Respondent-Appellee.

Before EBEL, ANDERSON, and KELLY, Circuit Judges.

EBEL, Circuit Judge.

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case
therefore is ordered submitted without oral argument.
 In December 1986, a Utah jury convicted petitioner-appellant Arden Brett

Bullock of three counts of aggravated sexual abuse of a child and three counts of

sodomy upon a child. The state trial court subsequently sentenced him to a

minimum mandatory prison term of fifteen years to life on each sodomy count and

nine years to life on each sexual abuse conviction, with the sentences to run

concurrently. The Utah Supreme Court upheld Mr. Bullock’s conviction by a

three-to-two vote in 1989, see State v. Bullock, 791 P.2d 155 (Utah 1989), and

the United States Supreme Court denied Mr. Bullock’s petition for certiorari in

1990. See Bullock v. Utah, 497 U.S. 1024 (1990). Two years after the Supreme

Court rejected Mr. Bullock’s appeal, Mr. Bullock filed, pursuant to 28 U.S.C.

§ 2254, a petition for writ of habeas corpus with the United States District Court

for the District of Utah alleging that during his trial he received ineffective

assistance of counsel and that his rights under the Due Process Clause and

Confrontation Clause had been violated.

Over several months in 1996, the magistrate judge held a four-day

evidentiary hearing on Mr. Bullock’s ineffective assistance of counsel claim.

Three years later, the magistrate judge issued a 105-page report and

recommendation rejecting all three claims for relief. Despite numerous objections

from Mr. Bullock, the district court adopted the report and recommendation,

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denied Mr. Bullock habeas relief, and rejected Mr. Bullock’s subsequent motion

for a certificate of probable cause to appeal his habeas petition to this court.

This appeal followed. We now grant a certificate of appealability for each

of the issues Mr. Bullock raises on appeal and affirm the denial of habeas relief.

In reaching this conclusion, we reemphasize that the ultimate inquiry when

deciding whether an attorney performed in a constitutionally deficient manner is

not whether the counsel’s actions can be considered strategic, but whether, under

all the circumstances, counsel’s actions may be considered objectively reasonable.

I. Background

The facts of this case have been fully described by the Utah Supreme Court,

the magistrate judge’s report and recommendation, and the parties’ briefs on

appeal. Therefore, we provide only a brief summary of the underlying events.

In 1985, one of Mr. Bullock’s former neighbors in Bountiful, Utah, took

her four-year old son to see Dr. Barbara Snow, then clinical director of the

Intermountain Sexual Abuse Treatment Center (ISAT), because of inappropriate

sexual remarks he had made to two fellow four-year-olds. Mariam Smith, also a

former neighbor of Mr. Bullock’s and then ISAT’s overall director, referred the

boy to Dr. Snow, a “child therapist with a Ph.D. in social work, who worked with

child victims of sexual abuse.” During his second meeting with Dr. Snow, the

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boy alleged that he had been sexually assaulted by two eight-year-old boys from

the neighborhood, one of whom was Mr. Bullock’s son. Eventually, Dr. Snow

interviewed the eight-year-old boys, and one alleged that Mr. Bullock had

sexually molested him and several other neighborhood children, including

Mr. Bullock’s eight-year-old son and twelve-year-old daughter. As word of the

alleged abuse spread throughout the neighborhood, other boys were brought to see

Dr. Snow, who, with only a few exceptions discussed below, did not record her

interviews with the children or otherwise document what occurred during the

interview sessions, despite requests from a local police detective and a child

psychologist that she do so. During their initial interviews with Dr. Snow, several

of the boys denied that they had been abused by Mr. Bullock. Eventually,

however, four boys alleged that Mr. Bullock had engaged in criminal sexual acts

with them two years earlier, when the boys were six or seven years old. The boys

also told Dr. Snow that Mr. Bullock had threatened to harm them, their families,

and their pets.

Although Dr. Snow documented few of her interviews, 1 she did conduct

two interviews in the presence of state officials. In October 1985, Dr. Snow

interviewed one of the boys at the Salt Lake County District Attorney’s Office.

Approximately two months later, on December 13, 1985, Dr. Snow met with three

1
Dr. Snow apparently audiotaped one interview with one of the boys.

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of the boys, the three boys’ parents, a Bountiful police detective, and two county

attorneys from the Salt Lake County Attorney’s Office. During this meeting,

Dr. Snow interviewed “the boys one at a time in front of each other and the other

people present.” Two of the children described incidences of abuse that

corresponded with what they had previously told Dr. Snow, but one boy, who had

been pressured by his father to report the incident, denied that he had been

abused.

Eventually, all four boys were referred to Dr. Ann Tyler, “a psychologist

and Executive Director of the Family Support Center, an agency dedicated to the

prevention and treatment of child abuse and neglect,” who performed

“corroborative assessments” that were designed “to collect sufficient data [so that

she could give] an opinion as to whether the boys had been abused. One of the

boys initially told Dr. Tyler that he felt pressured to accuse Mr. Bullock of abuse,

informing Dr. Tyler that he accused Mr. Bullock to appease his father, that he

could not recall the alleged abuse, and that Dr. Snow had told him he had been

abused. Nevertheless, Dr. Tyler, who, unlike Dr. Snow, recorded her interviews,

concluded that, in all likelihood, all four boys had been abused.

Utah subsequently charged Mr. Bullock with abusing the boys. A jury tried

Mr. Bullock in December 1986, and two attorneys represented Mr. Bullock

throughout the proceedings. During the trial, Dr. Snow and Dr. Tyler described

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their interviews with the boys and recounted the boys’ statements indicating that

they have been sexually molested by Mr. Bullock. In addition, Dr. Tyler opined

that the boys had been sexually abused. The four boys all testified via videotaped

deposition that they had been molested by Mr. Bullock. Several of the boys’

parents described behavioral changes in their children after the alleged abuse

occurred but before the meetings with Dr. Snow.

The defense responded to the prosecution’s case by arguing that Dr. Snow

planted the allegation of abuse by Mr. Bullock in the boys’ minds. In making

their case, Mr. Bullock’s defense attorneys relied, in part, on Dr. Snow’s own

statements during trial. Dr. Snow testified, for example, that she was “very

aggressive in [her] questioning of children,” that she was “relatively indifferent to

what [would] happen to the [alleged] perpetrator,” that she did not approach

interview sessions “with an open mind” but as an “ally for the child,” and that she

did not see herself as a fact collector like the police.” Dr. Snow also testified

extensively about her interview techniques, and she acknowledged that she did

not record her interviews with the children, take notes during the interviews, or

write reports following the interviews. Indeed, Dr. Snow admitted that her “own

integrity” was the only way of verifying what had occurred during the interview

sessions. Similarly, the defense team emphasized contradictions and

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inconsistencies in the boys’ testimony, including the fact that one of the boys had

retracted an allegation of abuse as being untrue.

The defense attorneys also called three expert psychologists who severely

criticized Dr. Snow’s interviewing techniques and asserted that her methods had

irreparably tainted not only the boys’ testimony, but their actual recollections of

events. In addition, the defense experts challenged Dr. Tyler’s conclusion that

the boys had been abused, arguing that the boys had already been contaminated by

Dr. Snow by the time Dr. Tyler evaluated them.

Mr. Bullock also took the stand in his own defense, denying any improper

behavior toward the boys or any other child. Similarly, his daughter testified and

denied that she had been involved in any sexual activity with her father or with

any of the boys, as the boys had alleged. She also described her interview with

Dr. Snow wherein Dr. Snow attempted to coerce her to admit that she had been

sexually abused.

Ultimately, the jury convicted Mr. Bullock of three counts of aggravated

sexual assault and three counts of sodomy upon a child, but acquitted him on one

charge of aggravated sexual assault and two counts of sodomy upon a child.

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 II. Jurisdiction and standard of review

The district court had jurisdiction over Mr. Bullock’s habeas petition under

28 U.S.C. § 2254. Because Mr. Bullock appealed the denial of his habeas petition

after the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) became

effective, we may only address issues for which a certificate of appealability has

been granted. See id. § 2253(c)(1); Slack v. McDaniel, 529 U.S. 473, 481-82

(2000); Moore v. Marr, 254 F.3d 1235, 1238 (10th Cir.), cert. denied, 122 S. Ct.

670 (2001). The district court declined to grant a COA on any of the issues raised

in this appeal. Nonetheless, we may grant a COA and consider the underlying

merits of the appeal, if Mr. Bullock “demonstrate[s] that reasonable jurists would

find the district court’s assessment of the constitutional claims debatable or

wrong.” Slack, 529 U.S. at 484. For the reasons outlined below, we find that on

each claim Mr. Bullock “has made a substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(c)(2), and, therefore, we conclude that

reasonable jurists “would find the district court’s [decision] . . . debatable or

wrong.” Slack, 529 U.S. at 484. Consequently, we grant a COA on each of the

three issues raised in Mr. Bullock’s habeas petition.

However, because Mr. Bullock filed the underlying habeas petition before

the enactment of the AEDPA, we apply pre-AEDPA law when reviewing the

merits of his habeas petition. See Tillman v. Cook, 215 F.3d 1116, 1121 (10th

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Cir. 2000). Under pre-AEDPA law, “we presume state court factual

determinations to be correct,” and where, as here, the federal district court made

factual findings after holding an evidentiary hearing, we review those findings

“for clear error.” Romero v. Tansy, 46 F.3d 1024, 1028 (10th Cir. 1995). In

either situation, we review the district court’s “conclusions of law de novo.”

Tillman, 215 F.3d at 1121. Finally, “[w]e may grant relief to a state prisoner only

if state court error deprived him of fundamental rights guaranteed by the

Constitution of the United States.” Id. (quoting Brown v. Shanks, 185 F.3d

1122, 1124 (10th Cir. 1999) (further quotations omitted)).

III. Ineffective Assistance of Trial Counsel

Mr. Bullock devotes the overwhelming majority of his eighty-six page

opening brief to arguing that he received ineffective assistance from his trial

counsel, thus violating his rights under the Sixth Amendment. Although Mr.

Bullock spends a great deal of time discussing his ineffective assistance of

counsel claim, his arguments, at their core, center around his trial attorney’s

failure to object to various pieces of evidence introduced by the state during trial.

Specifically, Mr. Bullock argues that his trial counsel erred by not trying to

exclude as unreliable the children’s hearsay testimony presented through police

officers, the children’s parents, and Drs. Snow and Tyler. He also contends that

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his trial counsel acted ineffectively by not objecting to the children’s direct

testimony under Rule 403 of the Utah Rules of Evidence. 2

A. Legal Standards

In determining whether a habeas petitioner’s trial counsel acted

ineffectively, we apply the general ineffective assistance of counsel standard

identified by the Supreme Court in Strickland v. Washington, 466 U.S. 668

(1984). See Romano v. Gibson, 278 F.3d 1145, 1151 (10th Cir. 2002) (applying

Strickland). Under Strickland, a petitioner must satisfy a two-part test in order to

prevail on an ineffective assistance of counsel claim. First, he must demonstrate

that his attorney’s “performance was deficient” and “fell below an objective

standard of reasonableness.” Strickland, 466 U.S. at 687-88. In applying this

test, we give considerable deference to an attorney’s strategic decisions and

“recognize that counsel is strongly presumed to have rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment.” Id. at 690. Second, a habeas petitioner must show that the trial

counsel’s deficient performance prejudiced him, which requires a showing 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.

Unless otherwise noted, Utah’s Rules of Evidence are identical to the Federal
2

Rules of Evidence.

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 Whether a petitioner’s claim satisfies Strickland’s two-part test is a mixed

question of law and fact we review de novo. Boyd v. Ward, 179 F.3d 904, 913

(10th Cir. 1999).

B. Trial Counsel’s Strategy

After hearing testimony from Mr. Bullock’s trial attorneys, the magistrate

judge found that Mr. Bullock’s defense team assumed that the children’s direct

testimony could not be excluded and believed that the children would come across

as highly credible witnesses. Consequently, Mr. Bullock’s attorneys developed

their defense around the assumption that the children’s direct testimony would be

admitted into evidence and that Mr. Bullock would have to explain why the

children would accuse him of sexual abuse. Ultimately, according to the

magistrate judge and the district court, the defense attorneys concluded that,

instead of directly attacking the children’s credibility, it would be most effective

to argue that the children came to believe they had been abused by Mr. Bullock

through (1) their repeated exposure to stories attributing the abuse to Mr. Bullock

and (2) Dr. Snow’s aggressive interviewing tactics. As the magistrate judge

explained,

In summary, counsel’s theory of the defense was that the children’s
stories of molestation by petitioner were the product of improper
interview techniques and coercion by Dr. Snow and contamination by
their exposure to discussions of the molestation among themselves,
their parents, and at the meeting at the county attorney’s office.

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 “In deciding how best to present th[is] defense, counsel considered

different scenarios,” including the exclusion of the children’s hearsay testimony,

the magistrate judge found. Eventually, the attorneys reasoned that if the

children’s hearsay testimony were excluded from the prosecution’s case in chief,

it would ultimately be admitted in the prosecution’s rebuttal case “to rehabilitate

the child witnesses’ credibility after the defense had attacked it through the

cross-examination of Drs. Snow and Tyler.” Therefore, Mr. Bullock’s trial

counsel concluded, according to the magistrate judge and district court, that the

hearsay testimony should come in during the “prosecution’s case-in-chief rather

than to give the appearance to the jury and the court that they were trying to hide

something.” Although the defense team also considered seeking a limiting

instruction that would inform the jury that the children’s hearsay statements could

only be considered in “evaluating Dr. Snow’s interview techniques and not for the

truth of the matter asserted,” they declined to do so because (1) they wanted to

use any favorable hearsay testimony for the truth of the matter asserted and

(2) feared the limiting instruction might confuse the jury, particularly if some

statements were admitted for the truth of the matter asserted while others were

not.

In addition, Mr. Bullock’s trial counsel believed other advantages could be

derived from not excluding the children’s hearsay testimony. First, the hearsay

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statements revealed that the children only suggested that Mr. Bullock had abused

them after they had met with Dr. Snow. Second, the hearsay statements

demonstrated inconsistencies and contradictions within the children’s allegations

and the possibility that outside pressure influenced their stories. 3

Mr. Bullock forthrightly concedes that the “strategy as presented by the

Magistrate Judge and the lower court makes sense in the abstract and certainly

would insulate [Mr. Bullock’s attorneys] from any claim of ineffectiveness had

such decisions been properly made with understanding and information.” See

Strickland, 466 U.S. at 689-90. Mr. Bullock, however, argues that the admission

of the children’s direct testimony and the children’s hearsay testimony cannot be

considered a reasonable strategic choice because Mr. Bullock’s “attorneys were

not aware of legal options available from which to make strategic choices.” 4

3
Dr. Tyler, for example, testified that one victim told her that he felt
pressured to assert that Mr. Bullock had abused him and that he did not
specifically recall the incidences of abuse. Moreover, Dr. Tyler’s testimony
revealed that nearly all of the children initially had trouble remembering whether
incidences of abuse occurred, with some initially denying altogether that
Mr. Bullock had sexually assaulted them.
4
At least with regard to the children’s hearsay testimony, it is not entirely
clear that Mr. Bullock’s claim is factually correct. As will be discussed in the
following sections, our review of the record suggests that Mr. Bullock’s trial
counsel did not know that the children’s hearsay statements could be challenged
under a Utah statute governing the admission of “a child victims’s out-of-court
statement regarding sexual abuse of that child.” Utah Code Ann. § 76-5-411(1).
However, it is also clear from the record that Mr. Bullock’s trial attorneys did
know that, under general evidentiary rules, they could challenge the use of at least
(continued...)

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Although we discuss his specific claims more below, Mr. Bullock essentially

argues that his attorneys were unaware of Utah evidentiary rules that could have

been used to challenge the admissibility of the boys’ direct and hearsay testimony.

Mr. Bullock appears to argue that his attorneys’ unawareness rendered their

performance constitutionally deficient. 5

C. Role of Presumptions in Ineffective Assistance of Counsel Analysis

A threshold issue underlying Mr. Bullock’s ineffective assistance of

counsel argument, then, is how trial counsel’s alleged strategy, or lack thereof,

influences our analysis under Strickland’s deficient performance prong. As will

be discussed below, the overriding question under the first prong of Strickland is

whether, under all the circumstances, counsel performed in an objectively

unreasonable manner. Two presumptions inform our objective reasonableness

inquiry. First, we always start the analysis that an attorney acted in an objectively

4
(...continued)
some the hearsay evidence, but elected not to do so for strategic reasons.
Consequently, at least in regard to the hearsay evidence, we disagree with the
notion that Mr. Bullock’s attorneys acted in complete ignorance of the possibility
of excluding the children’s hearsay statements.
5
There is some tension in Mr. Bullock’s argument. On the one hand,
Mr. Bullock suggests that a fully informed attorney could have employed the
strategy that his attorneys used. Later in his brief, however, he seems to retract
his earlier concession, arguing that the failure to challenge the children’s direct
and hearsay statements “is clearly below the standard of competent counsel.” For
reasons discussed below, we do not believe that Mr. Bullock’s trial attorneys
performed in an objectively unreasonable manner.

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reasonable manner and that an attorney’s challenged conduct might have been part

of a sound trial strategy. Second, where it is shown that a particular decision was,

in fact, an adequately informed strategic choice, the presumption that the

attorney’s decision was objectively reasonable becomes “virtually

unchallengeable.” However, it is important to remember that these presumptions

are simply tools that assist us in analyzing Strickland’s deficient performance

prong and they do not, in and of themselves, answer the ultimate question, which

is whether counsel performed in an objectively reasonable manner. So, for

example, even though counsel’s strategy was ill-informed and thus does not

qualify for the virtually unchallengeable presumption of reasonableness, a court

reviewing the record before it might still conclude that counsel performed in an

objectively reasonable manner. And, conversely, it is also possible on rare

occasions to conclude that counsel’s fully-informed strategic choices were

unreasonable if “‘the choice was so patently unreasonable that no competent

attorney would have made it.’” Phoenix v. Matesanz, 233 F.3d 77, 82 n.2 (1st

Cir. 2000) (quoting Washington v. Strickland, 693 F.2d 1243, 1254 (5th Cir.

1982)).

1. General Presumption of Reasonableness

As we have often explained, a petitioner raising an ineffective assistance of

counsel claim carries a “heavy burden.” E.g., Gonzales v. McKune, 247 F.3d

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1066, 1072 (10th Cir. 2001), vacated in part on other grounds by Gonzales v.

McKune, 279 F.3d 922 (10th Cir. 2002) (en banc), petition for cert. filed (U.S.

May 7, 2002) (No. 01-10243); Fox v. Ward, 200 F.3d 1286, 1295 (10th Cir.

2000). Generally speaking, “[t]here is a ‘strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance.’”

Romano, 278 F.3d at 1151 (quoting Strickland, 466 U.S. at 689); see also

Brecheen v. Reynolds, 41 F.3d 1343, 1365 (10th Cir. 1994) (explaining

“presumption that counsel’s conduct was constitutionally effective”); United

States v. Haddock, 12 F.3d 950, 955 (10th Cir. 1993) (“[P]roof [of deficient

performance] must overcome the ‘strong presumption’ that counsel was

effective.”) (citation omitted). This presumption derives from our common

experience that attorneys, as a whole, usually represent their clients in a

professional, competent, and reasonable manner. See, e.g., Bell v. Cone, 122

S.Ct. 1843, 1863 (2002) (Stevens, J., dissenting) (“[A] presumption that every

lawyer in every capital case has performed ethically, diligently, and competently

is appropriate because such performance characterizes the members of an

honorable profession.”).

Put another way, the Supreme Court has explained, the general presumption

of objective reasonableness requires a petitioner to “overcome the presumption

that, under all the circumstances, the challenged action ‘might be considered

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sound trial strategy.’” Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana,

350 U.S. 91, 101 (1955)) (emphasis added); see also Kimmelman v. Morrison,

477 U.S. 365, 385 (1986) (applying Strickland presumptions); Romano, 278 F.3d

at 1151 (noting general presumption of effectiveness requires petitioner to

overcome presumption the counsel have acted as he did for valid strategic

reasons); Boyd, 179 F.3d at 914 (explaining that, in light of the presumption of

effectiveness, a petitioner must overcome presumption that challenged actions

might have been part of a sound trial strategy). Thus, the Strickland decision

“places upon the defendant the burden of showing that counsel’s action or

inaction was not based on a valid strategic choice.” Wayne R. LaFave et al.,

Criminal Procedure § 11.10(c) at 715 (West 2d 1999); see also Darden v.

Wainwright, 477 U.S. 168, 186-87 (1986) (discussing presumption that counsel

acted strategically); Gonzales, 247 F.3d at 1072 (explaining that ineffective

assistance of counsel claimant must “overcome the presumption that defense

counsel’s actions were sound trial strategy”); Fox, 200 F.3d at 1295 (same).

Thus, when we review an ineffective assistance of counsel claim, we start by

presuming, absent a showing to the contrary, that an attorney’s conduct is

objectively reasonable because it could be considered part of a legitimate trial

strategy. Boyd, 179 F.3d at 914.

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 2. Presumption of Reasonableness where Attorney Made Adequately Informed
Strategic Choice

Beyond the general presumption of objective reasonableness, Strickland

further presumes that “strategic choices made after thorough investigation of law

and facts relevant to plausible options are virtually unchallengeable.” 466 U.S. at

690; see also Barrett v. United States, 965 F.2d 1184, 1193 (1st Cir. 1992)

(distinguishing between presumption that counsel acted objectively reasonably

and in a way that might be considered strategic and presumption of validity for

strategic choices made after thorough investigation). Indeed, we have explained

that “[s]trategic or tactical decisions on the part of counsel are presumed correct,

unless they were completely unreasonable, not merely wrong.” Moore, 254 F.3d

at 1239 (citations and quotation omitted); see also Romano, 278 F.3d at 1151

(explaining the difficulty in challenging an attorney’s strategic choices). Unlike

the general presumption that an attorney acted objectively reasonably because his

decision might have been made for legitimate strategic reasons, which

automatically applies in all cases, Strickland, 466 U.S. at 689, this second,

“virtually unchallengeable” presumption of reasonableness operates only where it

is shown (1) that counsel made a strategic decision and (2) that the decision was

adequately informed. Id. at 690-91.

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 3. Ultimate Inquiry into Objective Reasonableness

Strickland’s presumptions–the presumptions (1) that counsel’s actions were

objectively reasonable because they might have been part of a sound trial strategy

and (2) that actual strategic choices made after thorough investigation are

“virtually unchallengeable,” Strickland, 466 U.S. at 689-90–should not obscure

the overriding, and ultimately determinative, inquiry courts must make under

Strickland’s deficient performance prong: whether, after “considering all the

circumstances,” counsel’s performance fell “below an objective standard of

reasonableness.” Id. at 688; see Darden, 477 U.S. at 184; Roe v. Flores-Ortega,

528 U.S. 470, 477 (2000); Fisher v. Gibson, 282 F.3d 1283, 1292 (10th Cir.

2002); Brecheen, 41 F.3d at 1365; Denton v. Ricketts, 791 F.2d 824, 826 (10th

Cir. 1986). As the Supreme Court recently explained when discussing

Strickland’s first prong, “[t]he relevant question is not whether counsel’s choices

were strategic, but whether they were reasonable.” Roe, 528 U.S. at 480 (citing

Strickland, 466 U.S. at 688); see Chandler v. United States, 218 F.3d. 1305,

1315-16 (11th Cir. 2000) (en banc) (explaining how ultimate inquiry under

Strickland’s first prong is whether counsel’s performance was objectively

reasonable), cert. denied, 531 U.S. 1204 (2001).

Consequently, even where an attorney pursued a particular course of action

for strategic reasons, courts still consider whether that course of action was

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objectively reasonable, notwithstanding Strickland’s strong presumption in favor

of upholding strategic decisions. See Fisher, 282 F.3d at 1296 (explaining that

“‘the mere incantation of “strategy” does not insulate attorney behavior from

review’” (quoting Brecheen, 41 F.3d at 1369 (further citation omitted))); Phoenix

v. Matesanz, 233 F.3d 77, 82 n.2 (1st Cir. 2000) (“We should note that ‘virtually

unchallengeable’ does differ from ‘unchallengeable.’ Our overall task according

to Strickland is to determine whether the challenged ‘acts or omissions [are]

outside the wide range of professionally competent assistance.’” (quoting

Strickland, 466 U.S. at 690)); Washington v. Hofbauer, 228 F.3d 689, 703-04

(6th Cir. 2000) (explaining that even if a court concludes that counsel chose not

to cross-examine a witness for strategic reasons, the court “cannot stop there,

[but] . . . must also assess if this strategy was constitutionally deficient”).

By the same token, an attorney’s unawareness of relevant law at the time he

made the challenged decision does not, in and of itself, render the attorney’s

performance constitutionally deficient. When discussing Strickland’s deficient

performance component, for example, we have emphasized that “[t]he Sixth

Amendment does not guarantee an errorless trial, and ‘prevailing professional

norms’ do not require perfection at trial.” Haddock, 12 F.3d at 956 (citing

Denton, 791 F.2d at 828). Cf. Long v. McKeen, 722 F.2d 286, 289 (6th Cir.

1983) (“[T]he Constitution guarantees only a fair trial and competent attorney. It

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does not mandate that trial counsel will recognize and raise every conceivable

constitutional claim. This is true whether the failure to raise the constitutional

claim is based upon ignorance of the law or a mistake in judgment . . . .” (internal

quotation and citation omitted)). Similarly, the Supreme Court has cautioned

federal courts that even in circumstances where an attorney erred, “[i]t will

generally be appropriate for a reviewing court to assess counsel’s overall

performance throughout the case in order to determine whether the ‘identified acts

or omissions’ overcome the presumption that counsel rendered reasonable

professional assistance.” Kimmelman, 477 U.S. at 386, a position echoed in our

decision in United States v. Smith, 10 F.3d 724 (10th Cir. 1993) (per curiam).

In Smith, we found an attorney’s representation “objectively reasonable,”

even though the attorney failed to request a lesser-included-offense jury

instruction and was “unaware of the availability of the lesser included offense

[instruction] and thus necessarily ignorant of the consequences of his conduct.”

Id. at 728. We justified this conclusion on “Strickland’s focus on objectively

reasonable representation considering all circumstances” and reasoned that

“counsel’s representation as a whole should be considered when determining

whether the defendant received a fair trial.” 6 Id. As we explained:

6
Smith acknowledged that, “at first blush,” certain language in Strickland
could be construed as holding that an attorney’s conduct is objectively
(continued...)

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 We are satisfied that even if Defense Counsel had been aware of the
availability of the lesser included offense [instruction] . . ., Counsel’s
actual representation would still have been within the range of
objectively reasonable representation. Consequently, we are of the
view that where counsel’s representation is objectively reasonable
under all the circumstances of a case and ensured that the defendant
received a fair trial overall, it makes no difference that certain
decisions may have been unreasonable or made without a full
recognition of the consequences.

Id. at 729; see also Chandler, 218 F.3d at 1315-16 & nn. 16-17 (explaining that to

satisfy Strickland’s deficient performance prong, “a petitioner must establish that

no competent counsel would have taken the action that his counsel did take,” and

that deficiency will not be found where fully informed and competent

“hypothetical counsel” could have taken the same action) (emphasis added);

Harich v. Dugger, 844 F.2d 1464, 1470-71 (11th Cir. 1988) (en banc) (holding

that attorney’s ignorance of potential defense under state law did not establish

deficient performance under Strickland because fully competent attorney aware of

6
(...continued)
unreasonable where the attorney was “unaware” of the availability of a lesser-
included-offense instruction. Smith, 10 F.3d at 728. The court specifically
referenced language in Strickland discussing an attorney’s duty to investigate:
“[S]trategic choices made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments support the
limitations on investigation. In other words, counsel has a duty to make
reasonable investigations or to make a reasonable decision that makes a particular
investigations unnecessary.” Strickland, 466 U.S. at 690-91. Ultimately,
however, we concluded in Smith that “Strickland’s focus on objectively
reasonable representation considering all circumstances” meant that an
uninformed decision could still be objectively reasonable. 10 F.3d at 728.

- 22 -
the defense “could well have taken action identical to counsel in this case”),

partial overruling on other grounds by Romano v. Oklahoma, 512 U.S. 1 (1994),

recognized in Davis v. Singletary, 119 F.3d 1471, 1482 (11th Cir. 1997). Cf.

Dixon v. Snyder, 266 F.3d 693, 703 (7th Cir. 2001) (finding that if counsel had

been aware of relevant state law, his actions would been “even more

unreasonable”).

Certainly, an attorney’s ignorance will affect a court’s ineffective

assistance of counsel analysis. An attorney’s demonstrated ignorance of law

directly relevant to a decision will eliminate Strickland’s presumption that the

decision was objectively reasonable because it might have been made for strategic

purposes, and it will often prevent the government from claiming that the attorney

made an adequately informed strategic choice. 7 See, e.g., Williams v. Taylor, 529

7
Analogously, we have often held that an attorney’s failure to present a
defense theory or mitigation evidence cannot be considered strategic where that
decision was influenced by inadequate preparation and investigation. Fisher,
282 F.3d at 1296 (concluding that counsel’s “accidental[] elicitat[ion] [of]
damaging testimony” during a capital murder trial could not be considered
strategic where the attorney did not “undertake substantial pretrial investigation,”
and where the testimony was “produced by the happenstance of counsel’s
uninformed and reckless cross-examination”); Battenfield v. Gibson, 236 F.3d
1215, 1229 (10th Cir. 2001) (explaining that an attorney’s failure to investigate
potential mitigation evidence could not be dismissed as strategic where the
attorney “was ignorant of various other mitigation strategies he could have
employed”). Nothing in our decision should be construed as affecting an
attorney’s obligation to investigate particular defenses or seek out mitigation
evidence. See, e.g., Stouffer v. Reynolds, 168 F.3d 1155, 1167 (10th Cir. 1999);
(continued...)

- 23 -
U.S. 362, 395 (2000) (observing that attorney’s failure “to conduct an

investigation that would have uncovered extensive records graphically describing

[the defendant’s] nightmarish childhood” could not be considered strategic where

counsel “incorrectly thought that state law barred access to such records”); Dixon,

266 F.3d at 703 (holding that where counsel was unaware of a state statute

governing cross-examination, “his decision not to cross-examine [the witness]

cannot be accorded the same presumption of reasonableness as is accorded most

strategic decisions”); Pavel v. Hollins, 261 F.3d 210, 218 n. 11 (2d Cir. 2001)

(collecting cases and discussing how decisions made in ignorance of relevant

facts and law cannot be characterized as strategic under Strickland); see

also Bryan v. Gibson, 276 F.3d 1163, 1183 (10th Cir. 2001) (reh’g en banc

granted, April 26, 2002) (Henry, J., concurring part and dissenting in part)

(arguing that counsel’s decision not to present certain mitigation evidence could

not be considered strategic because the defense attorney “did not even realize that

he could present” the evidence at issue) (emphasis omitted).

In many cases, a lawyer’s unawareness of relevant law will also result in a

finding that counsel performed in an objectively deficient manner. See, e.g.,

Kimmelman, 477 U.S. at 385-86 (explaining that counsel’s failure to conduct

(...continued)
7

Breechen, 41 F.3d at 1366.

- 24 -
pretrial discovery was objectively unreasonable because counsel had a “startling

ignorance of the law” and mistakenly believed “that the State was obliged to take

the initiative and turn over all of its inculpatory evidence to the defense and that

the victim’s preferences would determine whether the State proceeded to trial

after an indictment had been returned”); Magana v. Hofbauer, 263 F.3d 542, 550

(6th Cir. 2001) (“[Counsel’s] complete ignorance of the relevant law under which

his client was charged, and his consequent gross misadvice to his client regarding

the client’s potential prison sentence, certainly fell below an objective standard of

reasonableness under prevailing professional norms.”); Baker v. Barbo, 177 F.3d

149, 154 (3d Cir. 1999) (holding that “a trial attorney’s error with respect to his

ignorance of the sentencing law [at issue in the case] has satisfied the first prong

of the Strickland test”); United States v. Glover, 97 F.3d 1345, 1349 (10th Cir.

1996) (“The illegal-sentence issue counsel failed to raise was clearly meritorious

under the existing [United States Sentencing] [G]uidelines and elementary

burden-of-proof principles, surely both matters within the requisite expertise of a

practicing member of the criminal defense bar.”); United States v. Kissick, 69

F.3d 1048, 1056 (10th Cir. 1995) (“An attorney’s failure to challenge the use of a

prior conviction to classify the defendant as a career offender when that prior

conviction is facially insufficient to satisfy the definition of a ‘controlled

substance offense’ under USSG § 4B1.2 therefore constitutes deficient

- 25 -
performance under Strickland.”); see also LaFave et al., Criminal Procedure

§ 11.10(c) at 720 (explaining that “clearly negligent treatment of a crucial

deficiency in the prosecution’s case or an obvious strength of the defense” will

render an attorney’s overall performance inadequate).

Even where an attorney’s ignorance of relevant law and facts precludes a

court from characterizing certain actions as strategic (and therefore presumptively

reasonable), however, the pertinent question under the first prong of Strickland

remains whether, after considering all the circumstances of the case, the

attorney’s representation was objectively unreasonable. See Roe, 528 U.S. at 481;

Kimmelman, 477 U.S. at 386; Strickland, 466 U.S. at 688-90; Chandler, 218 F.3d

at 1315-16 & n.16; Smith, 10 F.3d at 729; Harich, 844 F.3d at 1470-71; see also

Pavel, 261 F.3d at 219-23 (concluding that trial counsel’s decision not to call a

witness could not be considered strategic but then considering whether attorney’s

performance was unreasonable). If the performance was objectively reasonable,

then the ineffective assistance claims fails. See Strickland, 466 U.S. at 697.

In summary, whether a counsel’s actions can be considered strategic plays

an important role in our analysis of Strickland’s deficient performance prong. As

a general matter, we presume that an attorney performed in an objectively

reasonable manner because his conduct might be considered part of a sound

strategy. Moreover, where it is shown that a challenged action was, in fact, an

- 26 -
adequately informed strategic choice, we heighten our presumption of objective

reasonableness and presume that the attorney’s decision is nearly unchallengeable.

The inapplicability of these presumptions (because, for example, the attorney was

ignorant of highly relevant law) does not, however, automatically mean that an

attorney’s performance was constitutionally inadequate. Instead, we still ask

whether, in light of all the circumstances, the attorney performed in an objectively

reasonable manner.

D. Ineffective Assistance of Counsel Claim

With these principles in mind, we consider the specifics of Mr. Bullock’s

ineffective assistance of counsel claim.

1. Children’s Direct Testimony

As outlined earlier, the district court found that Mr. Bullock’s trial

attorneys premised much of their trial strategy on the belief that the children’s

direct testimony, whether live in the courtroom or, as occurred in this case,

through videotape, could not be excluded, and, as presented, would be credible.

On appeal, Mr. Bullock argues, as he did before the district court, that his

attorneys performed ineffectively because the children’s direct testimony could

have been excluded using Utah Rule of Evidence 403, which, like its federal

counterpart, provides that relevant evidence “may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice, confusion of

- 27 -
the issues, or misleading the jury, or by considerations of undue delay, waste of

time, or needless presentation of cumulative evidence.” Utah R. Evid. 403; see

Fed. R. Evid. 403. The magistrate judge and the district court both found this

argument to be without merit, and we agree with this conclusion.

As Mr. Bullock acknowledges, Utah law existing at the time of his trial

deemed the boys legally competent to testify about the alleged abuse: “A child

victim of sexual abuse under the age of ten is a competent witness and shall be

allowed to testify without prior qualification in any judicial proceeding. The trier

of fact shall determine the weight and credibility of the testimony.” Utah Code

Ann. § 76-5-410. Nonetheless, Mr. Bullock argues that his trial counsel should

have invoked Rule 403, which also existed at the time of his trial, and, citing

Dr. Snow’s coercive tactics, moved to exclude the children’s testimony as

inherently unreliable.

In making this argument, Mr. Bullock relies upon a decision handed down

by the Utah Supreme Court five months after his trial, State v. Fulton, 742 P.2d

1208 (Utah 1987). In Fulton, the supreme court explained that “the law in Utah is

that all witnesses are competent, and section 76-5-410 is not an exception to this

general rule. Every person is considered competent to be a witness and must be

allowed to testify unless the testimony is otherwise excludable under the Utah

Rules of Evidence.” Id. at 1217. The court cautioned, however, that section 76-

- 28 -
5-410 “does not mean that the trial court may never prevent a child from

testifying.” Id. at 1218. Instead, explained the court, a trial judge might exclude

a child’s testimony under Rule 403, if it were to find the testimony “unreliable.”

Id. In a footnote, the supreme court observed that a trial court “may take into

account the child’s susceptibility to suggestion and whether the child has been

intentionally prepared or unconsciously influenced by adults in such a way that it

is likely the child is only parroting what others have said about the relevant

facts.” Id. at 1218 n.15.

We find Mr. Bullock’s invocation of Fulton unconvincing. When

reviewing an ineffective assistance of counsel claim, we must make every effort

“to eliminate the distorting effects of hindsight, to reconstruct the circumstances

of counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.” Strickland, 466 U.S. at 689. Consequently, we have

rejected ineffective assistance claims where a defendant “faults his former

counsel not for failing to find existing law, but for failing to predict future law”

and have warned “that clairvoyance is not a required attribute of effective

representation.” United States v. Gonzalez-Lerma, 71 F.3d 1537, 1542 (10th Cir.

1995); Sherrill v. Hargett, 184 F.3d 1172, 1175 (10th Cir. 1999) (“Generally,

counsel is not ineffective for failing to anticipate arguments or appellate issues

that only blossomed after defendant’s trial and appeal have concluded.”); see also

- 29 -
Smith v. Singletary, 170 F.3d 1051, 1054-55 (11th Cir. 1999); Lilly v. Gilmore,

988 F.2d 783, 786-88 (7th Cir. 1993) (both explaining that trial counsel is not

ineffective just because he offered legal advice later found erroneous, provided

the underlying legal advice was objectively reasonable at the time it was given).

In this case, the failure to invoke Rule 403 at the time of Mr. Bullock’s trial

was not objectively unreasonable. Section 76-5-410 states unequivocally that

children under the age of ten “shall be allowed to testify without prior

qualification in any judicial proceeding.” Utah Code Ann. § 76-5-410. Prior to

the Fulton decision, the provision could have been read as mandating that any

credibility questions, which arguably would include the “reliability” of the

children’s testimony, be resolved by the jury: “The trier of fact shall determine

the weight and credibility of the testimony.” Id. In any event, Fulton does not

unequivocally support Mr. Bullock’s argument. While the Utah Supreme Court

noted that the Rule 403 could be used to exclude inherently unreliable testimony,

Fulton itself found that the admission of the child’s testimony did not violate

Rule 403. Fulton, 742 P.2d at 1218. Moreover, Fulton only held that a trial court

“may take into account” the unreliability of the children’s testimony in applying

Rule 403, and “should consider” this factor along with any others “that have a

bearing on the balancing required by Rule 403.” Id. at 1218 n.15 (emphasis

added). The decision, as we understand it, gave Utah trial courts the right to

- 30 -
consider the reliability of children’s testimony when deciding whether such

testimony should be admitted into evidence, but it did not require the per se

exclusion of unreliable testimony. Therefore, even if Mr. Bullock’s counsel had

invoked Rule 403 and challenged the reliability of the children’s testimony, the

trial court could have exercised its discretion and admitted the evidence, a

decision that the Utah appellate courts could only have reviewed for an abuse of

discretion.

Because we do not believe that Mr. Bullock’s attorneys performed

deficiently by not invoking Rule 403, we reject Mr. Bullock’s argument that his

trial counsel acted ineffectively by not challenging the boys’ direct testimony

under Rule 403.

2. Children’s Hearsay Testimony

Utah law–both as it exists now and as it existed at the time of

Mr. Bullock’s trial–permits the admission of “a child victim’s out-of-court

statement regarding sexual abuse of that child” in certain circumstances. Utah

Code Ann. § 76-5-411(1). Before admitting any hearsay statement, however, the

statute requires that “the judge shall determine whether the interest of justice will

best be served by admission of that statement.” Id. § 76-5-411(2) (emphasis

added). When deciding whether to admit the hearsay testimony, the statute

declares that the “judge shall consider the age and maturity of the child, the

- 31 -
nature and duration of the abuse, the relationship of the child to the offender, and

the reliability of the assertion and of the child.” Id. (emphasis added).

Importantly, a year before Mr. Bullock’s trial, the Utah Supreme Court

made clear that state trial courts must assess the reliability of a child’s hearsay

statement prior to admitting it into evidence. See State v. Nelson, 725 P.2d 1353,

1355 n.3 (Utah 1986) (explaining that the importance of finding the child’s

hearsay statement reliable “cannot be overemphasized” and warning that “the trial

court must make an in-depth evaluation of the proposed testimony” before it can

be admitted). Indeed, the court identified factors beyond those mentioned in the

statute that a court should consider when assessing the reliability of hearsay

statements, noting that “to determine the reliability of the statement, a court

should consider how soon after the event it was given, whether the statement was

spontaneous, the questions asked to elicit it, the number of times the statement

was repeated or rehearsed, and whether the statement is repeated verbatim in

court, viz., tape recording, video, or otherwise.” Id.

Based on our review of the state trial proceedings, it appears, as

Mr. Bullock contends, that at least one of his attorneys, Steven McCaughey, did

not fully grasp section 76-5-411’s reliability component and erroneously believed

that the children’s hearsay statements to Drs. Snow and Tyler would be admitted

- 32 -
under any circumstances. 8 Mr. Bullock’s other attorney, Christine Soltis, seemed

to acknowledge that in theory the hearsay statements could have been excluded

for reliability grounds under section 76-5-411, but explained that she doubted that

would occur in practice.

We conclude, however, that a fully informed attorney could have concluded

that admitting the hearsay statement was to Mr. Bullock’s strategic advantage

and, therefore, that his attorneys’ performance was not objectively unreasonable.

See Smith, 10 F.3d at 729; Harich, 844 F.2d at 1470-71. For example, as

Mr. McCaughey pointed out during the evidentiary hearing, if the hearsay

statements had been excluded, then the only testimony presented by the

prosecution would have been the direct testimony of the children, and it is

objectively reasonable to conclude, as Mr. Bullock’s attorneys in fact concluded,

that directly attacking the children on cross-examination would not have been an

effective trial strategy to produce an acquittal. Further, it is undisputed that by

admitting the hearsay statements, Mr. Bullock’s trial counsel was able to (1)

8
During pretrial proceedings, the prosecuting attorney discussed Nelson and
recommended that a hearing be held to establish the reliability of the hearsay
statements. The trial court declined to hold such a hearing, but warned the county
attorney that before the hearsay testimony could be admitted, it would have to
make findings in accordance with section 76-5-411. Mr. Bullock’s trial counsel
did not respond, and when the hearsay testimony was offered during the ensuing
trial, they did not attempt to block it under section 76-5-411, despite Dr. Snows’s
disconcerting actions.

- 33 -
highlight inconsistencies and contradictions in the children’s testimony, (2)

expose Dr. Snow’s unprofessional interview tactics, (3) reveal ways in which the

children may have “contaminated” one another, and (4) generally argue that the

children’s allegations resulted from Dr. Snow’s pressure tactics.

In light of these considerations, we reject the hearsay component of

Mr. Bullock’s ineffective assistance of counsel claim. Having rejected both

components of Mr. Bullock’s ineffective assistance of counsel argument under the

first prong of Strickland, we reject his ineffective assistance of counsel claim in

its entirety. Strickland, 466 U.S. at 697.

IV. Due Process Clause and Confrontation Clause Claims

Beyond his ineffective assistance of counsel arguments, Mr. Bullock raises

two additional claims on appeal. First, he alleges that he was “denied federal due

process of law when the police permitted Barbara Snow to initially interview the

children since she was not a neutral-fact gatherer,” did not record her interviews,

and used coercive interviewing tactics that “contaminated” and “shaped” the

children’s testimony. Second, he alleges that the children’s videotaped testimony

violated his rights under the Confrontation Clause. Mr. Bullock does not cite a

single case in his brief to support either argument, and his brief devotes a total of

five of its eighty-plus pages to the two arguments. Instead, Mr. Bullock argues

- 34 -
that the “space limitation in this appeal” does not allow him to address the issues

in detail and directs us to an addendum containing his filings before the district

court.

After receiving Mr. Bullock’s opening brief, Utah moved to strike

Mr. Bullock’s Due Process Clause and Confrontation Clause arguments on the

ground that the legal authority to support them is incorporated in his appellate

brief by reference to the briefs he filed in the federal district court. Normally, we

will not consider arguments on appeal that simply direct us to filings before the

district court. See Gaines-Tabb v. ICI Explosives USA, Inc. , 160 F.3d 613, 623-

24 (10th Cir. 1998) (explaining that allowing parties to simply adopt on appeal

the pleading filed in district court “rather than setting forth in their appellate brief

their quarrel with the district court’s reasoning” would create a “means of

circumventing the page limitations on briefs set forth in the appellate rules and

unnecessarily complicate the task of an appellate judge”) (citations omitted). In

this case, however, Mr. Bullock’s opening appellate brief contains a short

statement of the issues and arguments related to his Due Process and

Confrontation Clause claims, and Utah has responded to those arguments in its

brief. Therefore, we will consider those claims as framed in the opening brief.

Utah’s motion to strike the arguments is denied.

- 35 -
 A. Due Process

Mr. Bullock’s due process argument has two components, as best we can

tell. First, he contends that the state violated his due process rights by allowing

Dr. Snow to ply her questionable interview techniques on the children. Second,

in a related argument, he contends Dr. Snow’s failure to record her interviews

amounts to state action that failed to preserve potentially exculpatory evidence.

We reject both arguments.

1. Unreliability

In advancing his “unreliability” argument, Mr. Bullock argues that his

conviction depended upon the testimony (either direct or hearsay) of children who

had been subjected to Dr. Snow’s coercive interview tactics. As a factual and

legal matter, he asserts, Dr. Snow’s techniques rendered the boys’ testimony

inherently unreliable. Because the evidence was not reliable, he further argues, it

should not have been admitted during his trial, and because his conviction

depended upon this improperly admitted unreliable evidence, he contends, his

conviction violates due process.

A habeas petitioner is only entitled to relief, however, for alleged violations

of federal rights, not for errors of state law. See Estelle v. McGuire, 502 U.S. 62,

67 (1991). Generally speaking, a state court’s misapplication of its own

evidentiary rules–which seems to be at the heart of Mr. Bullock’s unreliability

- 36 -
claim–is insufficient to grant habeas relief. Id. at 72 (“Nor do our habeas powers

allow us to reverse [a petitioner’s] conviction based on a belief that the trial judge

incorrectly interpreted the California Evidence Code in ruling that the prior injury

evidence was admissible as bad acts evidence in this case.”). Under Tenth Circuit

precedent, Mr. Bullock may only obtain habeas relief for an improper state

evidentiary ruling “if the alleged error was ‘so grossly prejudicial [that it] fatally

infected the trial and denied the fundamental fairness that is the essence of due

process.’” Revilla v. Gibson, 283 F.3d 1203, 1212 (10th Cir. 2002) (quoting Fox,

200 F.3d at 1296) (bracket in original); see also Chambers v. Mississippi,

410 U.S. 284, 289-90, 302 (1973) (holding that Mississippi’s application of its

rules of evidence denied a petitioner a fair trial). While it is undisputed that

“[t]he right to a fair trial is a fundamental liberty secured by the Fourteenth

Amendment,” Estelle v. Williams, 425 U.S. 501, 503 (1976), the Supreme Court

has defined “the category of infractions that violate fundamental fairness very

narrowly. Beyond the specific guarantees enumerated in the Bill of Rights, the

Due Process Clause has limited operation.” Estelle, 502 U.S. at 73 (internal

quotations and citations omitted).

In this case, Snow’s improper interviewing techniques were fully identified,

examined, criticized, and interpreted at a trial in which Mr. Bullock was

represented by competent counsel. It is clear from the trial record, for instance,

- 37 -
that Mr. Bullock’s trial counsel attacked Dr. Snow’s credibility throughout the

trial, raised the argument that Dr. Snow implanted the allegations of abuse in the

boys’ minds, and elicited expert testimony–including the state’s own

expert–condemning Dr. Snow’s interview techniques. Cf. Chambers, 410 U.S. at

302 (finding Due Process violation where state evidentiary ruling prevented the

petitioner from asserting his defense). Under the circumstances, we decline to

hold that Mr. Bullock’s trial was fundamentally unfair.

2. Failure to Record Interviews

The second aspect of Mr. Bullock’s due process claim revolves around

Dr. Snow’s failure to record her interviews with the children. According to

Mr. Bullock:

Snow intentionally failed to preserve critical evidence of her initial
and subsequent interviews in spite of the fact that she knew such
interviews were critically important to both the prosecution and the
defense in ascertaining the truth of the allegations she ascribed to the
children. In addition, such failure was accomplished in complete bad
faith since she had been requested numerous times to do so by the
police and by other therapists. Finally, the loss of a record of these
initial priceless interviews can never be replaced for Appellant’s
defense.

This argument is unavailing.

The Due Process Clause requires police departments to preserve clearly

exculpatory evidence in their possession that might not be available to a

defendant through other means. California v. Trombetta, 467 U.S. 479, 489

- 38 -
(1984); United States v. Gomez, 191 F.3d 1214, 1218 (10th Cir. 1999). A

defendant can obtain relief under the Due Process Clause when he can show that a

police department destroyed evidence with “an exculpatory value that was

apparent before [it] was destroyed.” Trombetta, 467 U.S. at 489; Gomez, 191

F.3d at 1218. Where, however, the police only failed to preserve “potentially

useful” evidence that might have been exculpatory, a defendant must prove that

the police acted in bad faith by destroying the evidence. Arizona v. Youngblood,

488 U.S. 51, 58 (1988) (“[U]nless a criminal defendant can show bad faith on the

part of the police, failure to preserve potentially useful evidence does not

constitute a denial of due process of law.”); Gomez, 191 F.3d at 1219 (“In order

to establish a due process violation with respect to ‘potentially useful’ evidence,

[a defendant] must show that the government acted in bad faith in destroying it.”).

Turning to the facts of this appeal, it is important to note that because

Mr. Bullock can only speculate about the potentially exculpatory nature of the

interviews, he must satisfy Youngblood’s bad faith requirement, assuming for this

appeal that the failure to record an interview is governed by Youngblood. 9

9
If Dr. Snow had kept notes or otherwise recorded her interviews, then those
records would fall clearly within the Youngblood parameters (assuming for the
moment that Dr. Snow was a police agent). See Morgan v. Gertz, 166 F.3d 1307,
1309-10 (10th Cir. 1999) (applying Youngblood where police officers destroyed a
tape recording of an interview); United States v. Femia, 9 F.3d 990, 995 (1st Cir.
1993) (applying Trombetta and Youngblood where the police failed to properly
(continued...)

- 39 -
Youngblood, 488 U.S. at 58; Gomez, 191 F.3d at 1219. Yet even if Dr. Snow

acted in bad faith, 10 Mr. Bullock’s argument falters, for Dr. Snow cannot be

described as either a police officer or as an agent of the police. It is true that

Dr. Snow’s revelations triggered the police investigation into this case and that

much of the information relied upon by the prosecution originated from

Dr. Snow’s interviews. At the time Dr. Snow conducted the interviews at issue,

however, she worked at ISAT. Although the “bulk” of ISAT’s finances came

from a treatment contract it had with Utah’s Division of Family Services, ISAT

was privately run and depended upon funding sources besides the state contract,

including grants, private donations, fees it charged clients, and insurance

coverage. Moreover, ISAT developed and implemented its own practices and

procedures without, as best we can tell from the record on appeal, direction from

the state or the police.

9
(...continued)
preserve tape recordings). It is not at all clear, however, that Youngblood applies
where a police officer fails to take notes or record an interview in the first
instance. See United States v. Brimage, 115 F.3d 73, 76 (1st Cir. 1997) (“The
government is surely correct that the decision not to record a conversation is
categorically different from the failure by police to maintain the breath samples of
a drunk driving defendant, as was the case in Trombetta, or the failure to preserve
semen samples in a sexual assault case, as happened in Youngblood.”). For
purposes of this appeal only, we assume, without deciding, that the a police
officer’s failure to record an interview could be governed by Youngblood.
10
Dr. Snow defended her failure to document the interviews on the ground
that recording equipment inhibits children “from bring[ing] out new information.”

- 40 -
 Nor does it appear that the police condoned Dr. Snow’s dubious interview

techniques. Indeed, detectives specifically requested that Dr. Snow record her

interviews, and eventually the police and the prosecutor’s office intervened and

ended Dr. Snow’s interviews. 11 At most, then, Mr. Bullock could argue that the

police acted negligently in not stopping the unrecorded interviews earlier, but

negligence is an insufficient basis for establishing bad faith under Youngblood.

United States v. Bohl, 25 F.3d 904, 912 (10th Cir. 1994) (“Of course, mere

negligence on the government’s part in failing to preserve such evidence is

inadequate for a showing of bad faith.”).

Consequently, we reject the second component of Mr. Bullock’s due

process claim.

11
Under section 1983, “[p]rivate persons, jointly engaged with state officials
in the challenged action,” are considered stated actors acting under color of state
law. Dennis v. Sparks, 449 U.S. 24, 27-28 (1980) (White, J.). However, the
premise of this liability is that a state officer or official has taken some
affirmative action or step to deprive the section 1983 plaintiff of a constitutional
right. See id. at 28-29 (explaining how private parties “conspire with” state
officials). In the present case, we can find no evidence suggesting that the police
or the prosecutor conspired to prevent Dr. Snow from recording the interviews.
In fact, as discussed above, the record suggests that the police encouraged
Dr. Snow to record her interviews and eventually discouraged the children from
meeting with her again.

- 41 -
 B. Confrontation Clause

Mr. Bullock’s Confrontation Clause argument is summarized in his opening

brief. Like his Due Process Claim, Mr. Bullock’s Confrontation Clause argument

raises two subsidiary issues. First, he alleges that the trial court failed to make

statutorily and constitutionally required findings of unavailability and reliability

before permitting the children to testify via videotape. Second, and more

generally, he contends that his rights under the Confrontation Clause were

violated when the trial court admitted the children’s hearsay statements without

fulfilling its “independent duty to evaluate the reliability of the hearsay testimony

and to make a record of evaluation.”

To the extent Mr. Bullock’s Confrontation Clause argument relies on state

law, they must fail. 12 Estelle, 502 U.S. at 67-68. Moreover, we have previously

explained that a defendant waives the protections guaranteed by the Clause when

his counsel, for reasonable strategic or tactical reasons “stipulat[es] to the

admission of hearsay evidence” or elects not to cross-examine a witness.

Hawkins v. Hannigan, 185 F.3d 1146, 1154-55 & n.5 (10th Cir. 1999). 13 As

12
As explained earlier, we cannot grant Mr. Bullock relief to the extent that
his habeas claims are premised on alleged violations of Utah’s evidentiary rules.
See Moore, 254 F.3d at 1246 (citing Estelle, 502 U.S. at 67-68).
13
Although Hawkins dealt with a situation where an attorney affirmatively
stipulated in his client’s presence to the admission of hearsay testimony, the
opinion indicated that an attorney could waive Confrontation Clause rights
(continued...)

- 42 -
discussed earlier, trial counsel appeared to have an objectively reasonable strategy

for admitting the children’s hearsay testimony, namely to attack Dr. Snow’s

credibility and to reveal inconsistencies in the boys’ stories. Therefore, because

Mr. Bullock’s ineffective assistance of counsel claims fail, his Confrontation

Clause argument also fails.

V. Conclusion

The quest for the truth in sexual abuse cases is always difficult, particularly

when the prosecution’s case heavily relies upon the testimony of young victims.

In this case, Dr. Snow’s disturbing and irresponsible conduct has made this quest

especially difficult. We do not know whether Dr. Snow still counsels children or

testifies as a prosecution witness in sexual abuse cases; if she does either, we

hope that she now follows proper professional and ethical standards. See, e.g.,

State v. Hadfield, 788 P.2d 506, 508-09 (Utah 1990) (explaining pervasive

criticism of Dr. Snow’s interview techniques and how “one police officer . . .

described how the children in Dr. Snow’s care were able to reproduce specific

13
(...continued)
through more implicit actions, such as failing to object or not cross-examine a
witness. 185 F.3d at 1155 n.5 (explaining that an attorney’s decision “to forego”
or “to limit” cross examination of a witness can also be “an effective waiver of
the defendant . . . if done pursuant to a reasonable trial strategy in defendant’s
presence, and without defendant’s objection thereto, without requiring proof of
defendant’s knowing and express consent”).

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information after he had suggested to Dr. Snow that such information should be

present in their statements”).

However, after carefully reviewing the record on appeal and considering

Mr. Bullock’s legal arguments, we conclude that he is not entitled to federal

habeas relief. We therefore GRANT a COA on the issues raised by Mr. Bullock

and AFFIRM the district court’s denial of relief.

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