Parker v. Scott

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 5 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

MATTHEW RICHARD PARKER,

Petitioner-Appellant,
v. No. 02-5202
H.N. “SONNY” SCOTT,

Respondent-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. NO. CV-99-888-K)

R. Thomas Seymour (C. Robert Burton with him on the brief), Seymour Law
Firm, Tulsa, Oklahoma, for Petitioner-Appellant.

William J. Holmes (W. A. Drew Edmondson, Attorney General of Oklahoma, and
Kellye G. Bates, Assistant Attorney General, on the brief), Office of the Attorney
General for the State of Oklahoma, Oklahoma City, Oklahoma, for Respondent-
Appellee.

Before McCONNELL , BALDOCK , and TYMKOVICH , Circuit Judges.

TYMKOVICH , Circuit Judge.
 Petitioner Matthew Richard Parker appeals from the district court’s denial

of his petition for a writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254

(2000), following his conviction, sentencing, and appeal in Oklahoma state

courts. A jury found Parker guilty of one count of sexual abuse of a seven-year-

old child under Okla. Stat. tit. 21, § 843 (1991), replaced by Okla. Stat. tit. 10,

§ 7115 (Supp. 1995). Parker was sentenced to life imprisonment. See Order, No.

99-CV-888-K(M), at 1 (N.D. Okla. Oct. 29, 2002). We have jurisdiction of his

appeal under 28 U.S.C. § 1291 (2000) and 28 U.S.C. § 2253 (2000).

Applying the deferential standard of review contained in the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA) to the Oklahoma Court of

Criminal Appeals’s holding, we conclude that Parker’s trial did not violate his

constitutional rights. We therefore AFFIRM.

I. BACKGROUND

A. The Issues on Appeal

On appeal Parker raises the following due process and ineffective

assistance of counsel claims:

(1) His due process rights were violated at trial,

a. because of the impermissible vouching for the credibility of
the child victim by a child abuse expert and two state officials;

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 b. because of the admission of inherently unbelievable testimony
by the child victim;

c. because of the trial judge’s denial of a request for production
of an investigator’s notes during trial; and

d. because of the use of jury instructions that did not properly set
forth the elements of the crime under Oklahoma law.

(2) He was denied the effective assistance of trial counsel because of the
overall conduct of his defense.

He also raises several other claims relating to the conduct of counsel or the

admission of testimony or evidence at trial that he did not raise in the district

court. We conclude those claims are waived. See Jones v. Gibson, 206 F.3d 946,

958 (10th Cir. 2000); Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir. 1999).

B. The Charge and the Trial

In March 1996, Parker was accused of repeatedly sexually abusing a seven-

year-old child his fiancee babysat. Parker’s arrest came after the child related the

abuse to her mother who in turn contacted the police. Oklahoma state authorities

subsequently conducted an investigation and interviewed the child. The

interviewers included James Lovett, a State Department of Human Services Child

Welfare Investigator, and Corporal Rex Berry, a Tulsa Police Department Officer.

Additionally, Dr. Nancy Inhoffe, a pediatrician, interviewed and conducted a

physical examination of the child. Following the investigation, the State indicted

Parker for sexual abuse of a minor child.

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 The trial occurred in March 1997. The prosecution put forth the child as its

main witness. The child testified that the abuse occurred between August 1994

and October 1995 at two different homes in Tulsa County. She stated that during

the time in which Parker’s fiancee was her babysitter, Parker would get on top of

her and “stick his private in [her] private,” as well as on her “bottom.” App. at

348, 350. She also described how his sexual organ appeared, noting that it had a

mole on it, and testified that during these incidents something that felt like

“[r]aindrops” would land on her stomach. Id. at 351, 348. Some of the child’s

testimony was less clear, however, such as the number of times she had been

abused, whether she pretended to be asleep during the abuse, and in what room of

the homes the abuse occurred.

The child’s mother testified regarding how she came to learn about these

incidents from the child and the steps she then took to contact authorities.

Additionally, Lovett and Berry each testified about their interviews with the child.

The prosecution also called Dr. Inhoffe as an expert witness. Dr. Inhoffe testified

that a child’s excessive sexual knowledge could evidence sexual abuse. App. at

424. She also explained that this particular child’s “knowledge of sexual contact

was in excess of what she should know for her age.” Id. at 406.

Parker testified in his own defense. He also called nine witnesses,

including his fiancee, whom he had married prior to trial. Parker and his wife

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both vehemently denied the allegations against Parker. Parker also called Dr.

Inhoffe as an adverse witness. A jury found Parker guilty and recommended a

sentence of life imprisonment. After his conviction, Parker lost on direct appeal

to the Oklahoma Court of Criminal Appeals. See Summary Opinion, No. F-97-

661 (Okla. Crim. App. Oct. 19, 1998) (OCCA Order). He did not seek state post-

conviction relief.

In October 1999, Parker filed a federal petition for writ of habeas corpus,

raising numerous grounds for relief. The district court denied relief on all

grounds in October 2002, and this Court granted a certificate of appealability in

June 2003. See Order, No. 99-CV-888-K (M), at 1 (N.D. Okla. Oct. 29, 2002)

(District Court Order); Order, No. 02-5202 (10th Cir. June 26, 2003).

II. AEDPA STANDARD OF REVIEW

Our review of this case is governed by AEDPA. See Upchurch v. Bruce ,

333 F.3d 1158, 1162 (10th Cir. 2003). Under AEDPA, “federal habeas review of

state convictions is limited when the state courts have adjudicated a claim on the

merits.” Cook v. McKune , 323 F.3d 825, 829 (10th Cir. 2003). Where, as here,

state courts have adjudicated the petitioner’s claims on the merits, we may only

grant a writ of habeas corpus if the state court’s decision (1) “was contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States” or (2) “was based on an

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unreasonable determination of the facts in light of the evidence presented in the

state court proceeding.” 28 U.S.C. § 2254(d) (2000).

Parker does not argue that the OCCA’s decision was “contrary to” clearly

established federal law. Rather, he claims that the OCCA unreasonably applied

federal law in adjudicating his claims. A state court unreasonably applies federal

law when it (1) “identifies the correct governing legal rule from the Supreme

Court’s cases but unreasonably applies it to the facts,” or (2) “either unreasonably

extends a legal principle from Supreme Court precedent to a new context where it

should not apply or unreasonably refuses to extend that principle to a new context

where it should apply.” Carter v. Ward , 347 F.3d 860, 864 (10th Cir. 2003)

(citing Valdez v. Ward , 219 F.3d 1222, 1229–30 (10th Cir. 2000)); see also

Williams v. Taylor, 529 U.S. 362, 407 (2000). “An ‘unreasonable application of

federal law is different from an incorrect application of federal law,’” Woodford

v. Visciotti , 537 U.S. 19, 25 (2002) (quoting Williams , 529 U.S. at 410), and “is to

be evaluated by an objective standard.” Mitchell v. Gibson, 262 F.3d 1036, 1045

(10th Cir. 2001) (citing Williams, 529 U.S. at 409–10). Thus, even an incorrect

application of federal law can be “reasonable” under this standard.

Furthermore, under § 2254(d)(1), the only “federal law” we consider is

“clearly established federal law as determined by decisions, not dicta, of the

Supreme Court.” Cook, 323 F.3d at 830 (citing Williams, 529 U.S. at 412); see

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also Anderson v. Mullin , 327 F.3d 1148, 1153 (10th Cir. 2003) (explaining that

the § 2254(d)(1) inquiry “begins and ends with the holdings . . . of the Supreme

Court’s decisions as of the time of the relevant state-court decision”) (citations

and quotations omitted). Thus, “an absolute prerequisite for [a habeas

petitioner’s] claim is that the asserted constitutional right on which it rests derive

in clear fashion from Supreme Court precedent.” Carter, 347 F.3d at 863 (citing

Anderson, 327 F.3d at 1153). Even relevant precedent of this circuit cannot

prevail absent clear Supreme Court authority. See McKinney v. Artuz , 326 F.3d

87, 96 (2d Cir. 2003) (noting that habeas petitioner “cannot win habeas relief

solely by demonstrating that the state court unreasonably applied Second Circuit

precedent”); Yancy v. Gilmore , 113 F.3d 104, 106 (7th Cir. 1997) (noting that,

under AEDPA, “We may no longer rely upon our own precedent to grant a writ of

habeas corpus”).

In sum, we may only grant relief under § 2254(d) if we can say, with

confidence, that the OCCA’s decision unreasonably applied clearly established

Supreme Court law to the facts of this case. If, however, the OCCA’s decision is

an objectively reasonable application of Supreme Court law, then relief “shall not

be granted,” 28 U.S.C. 2254(d)(1), even if we would have reached a different

result under our own independent review. See, e.g. , Elliott v. Williams , 248 F.3d

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1205, 1207 (10th Cir. 2001). With this standard of review in mind, we consider

Parker’s specific due process and ineffective assistance of counsel claims.

III. DUE PROCESS

The main thrust of Parker’s due process claims are a series of rulings by the

trial court that he claims violated his right to due process of law. Specifically, he

claims that the trial court made the following errors: (A) allowing testimony from

Dr. Inhoffe, Mr. Lovett, and Corporal Berry that impermissibly bolstered, or

“vouched” for, the child’s credibility by setting forth the witnesses’ belief in the

accuracy of the child’s statements; (B) allowing testimony from the child victim

that was unbelievable as a matter of law; (C) denying a mid-trial document

request; and (D) giving a jury instruction that omitted an element of the offense.

Each of Parker’s due process claims are considered below.

A. The prosecution witnesses did not violate Parker’s Due Process
rights by improperly bolstering the credibility of the child’s
testimony

Parker’s first argument is that the Oklahoma state trial court improperly

allowed three witnesses to shore up the child’s testimony by “vouching” for her

credibility. Specifically, he complains that the expert witness testimony of Dr.

Inhoffe and the lay witness testimonies of Lovett and Berry deprived him of a fair

trial by taking away from the jury the question of whether sexual abuse occurred.

According to Parker, vouching occurred when the witnesses either stated their

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belief that abuse occurred or made assumptions about the fact of abuse during

their testimonies. 1

Parker raised this argument on direct appeal. Relying on Oklahoma

precedent in Lawrence v. Oklahoma , 796 P.2d 1176 (Okla. Crim. App. 1990), the

OCCA found that “none of the witnesses impermissibly vouched for the

credibility of the prosecutrix” under Oklahoma law, and rejected the argument.

OCCA Order at 2. The district court concluded that habeas relief for the “indirect

vouching” in this case was unwarranted because the OCCA’s application of

Lawrence to affirm Parker’s conviction did not violate any clearly established

Supreme Court precedent. District Court Order at 6.

1
Parker also contends that three additional errors exacerbated the harm
caused by the alleged vouching. First, he argues that the trial court improperly
failed to admit testimony that would have minimized the effect of the vouching
testimony by showing the child had previous sexual experiences with her father
and half-brother. Second, he contends that the prosecution failed to prove Parker
actually had a mole on his penis, as alleged by the child. Third, he maintains that
the trial judge inappropriately commented to the child in chambers before she
testified at trial.

We need not address these arguments because Parker failed to raise them in
the district court. See Jones v. Gibson , 206 F.3d 946, 958 (10th Cir. 2000)
(“Petitioner did not make this argument in his revised habeas petition. Thus, this
court need not consider it.”); Rhine v. Boone , 182 F.3d 1153, 1154 (10th Cir.
1999) (“Because we will generally not consider issues raised on appeal that were
not first presented to the district court, we do not address this issue.”) (internal
citation omitted).

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 In Lawrence, the OCCA found that impermissible vouching occurred where

a social worker testified, with reference to a minor child, that ten-year-olds

generally do not lie. 796 P.2d at 1176–77. On direct examination, the prosecutor

asked the social worker whether she had formed “any kind of opinion as to what

was being told to you by [the child victim]?” Id. at 1176. The social worker

replied, in part, “Yes. . . . we usually with all the experience, et cetera, find that

by ten or up to and past the age of ten they do not lie about these things. . . .” Id.

Citing the rule that experts may not be used to assess a witness’s credibility, the

OCCA held that the social worker had impermissibly vouched for the truthfulness

or credibility of the child victim. Id. at 1177; see also Davenport v. Oklahoma,

806 P.2d 655, 659 (Okla. Crim. App. 1991) (citing Lawrence for the proposition

that “expert testimony may not be admitted to tell the jury who is correct or

incorrect, who is lying and who is telling the truth”).

Rather than basing his claim on Supreme Court law, Parker relies on two

recent Tenth Circuit cases to support his vouching claim, United States v.

Charley , 189 F.3d 1251 (10th Cir. 1999), and Hellums v. Williams, Nos. 00-2100

& 00-2109, 2001 WL 892492 (10th Cir. Aug. 8, 2001). In Charley , five health

care professionals testified for the government in a sexual abuse case involving

allegations by two children that they had been sexually abused. 189 F.3d at 1256.

One of the issues we faced on direct appeal was whether some of those witnesses

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had impermissibly vouched for the credibility of the children’s allegations. A

medical doctor stated her “final conclusion” on direct examination, which was

that both children had in fact been abused. Id. at 1266. We held that this

testimony was inadmissible under Federal Rule of Evidence 702 because it

impermissibly vouched for the children’s credibility. Id. at 1268. Significantly,

we also held that vouching had not occurred with respect to three witnesses that

opined the children’s symptoms were consistent with sexual abuse. Id. at

1264 –65, 1269.

We also found impermissible vouching in Hellums , an unpublished opinion

applying pre-AEDPA standards. There, we held that two expert witnesses had

impermissibly vouched when they made statements that either assumed the truth

of the child victim’s allegations or affirmatively indicated their belief that sexual

abuse had occurred. 2001 WL 892492, at *3.

Parker has not cited any published case that holds vouching testimony itself

violates the Due Process Clause. The cases Parker relies upon only hold that it is

error under federal and state evidentiary rules to permit an expert in a sex abuse

case to vouch for the victim’s credibility. Moreover, Parker cannot rely on Tenth

Circuit cases and other non-Supreme Court authority to show that the OCCA’s

decision was an unreasonable application of federal law . See Carter , 347 F.3d at

863–64. Regardless of whether these cases advance Parker’s arguments, under

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AEDPA we cannot consider Charley and Hellums as part of Parker’s due process

challenge.

Our analysis is not at an end, however, because Parker also alleges that the

challenged testimony violated the general due process standard outlined by the

Supreme Court in Lisenba v. California , which states:

As applied to a criminal trial, denial of due process is the failure to observe
that fundamental fairness essential to the very concept of justice. In order
to declare a denial of it we must find that the absence of that fairness
fatally infected the trial; the acts complained of must be of such quality as
necessarily prevents a fair trial.

314 U.S. 219, 236 (1941); see also Romano v. Oklahoma , 512 U.S. 1, 12 (1994);

Donnelly v. DeChristoforo , 416 U.S. 637, 643 (1974). “Inquiry into fundamental

fairness requires examination of the entire proceedings, including the strength of

the evidence against the petitioner, both as to guilt at that stage of the trial and as

to moral culpability at the sentencing phase.” Le v. Mullin , 311 F.3d 1002, 1013

(10th Cir. 2002) (citing Donnelly , 416 U.S. at 643; Fero v. Kerby , 39 F.3d 1462,

1474 (10th Cir. 1994)). In conducting this fundamental fairness examination,

“[w]e will not second guess a state court’s application or interpretation of state

law . . . unless such application or interpretation violates federal law.” Bowser v.

Boggs , 20 F.3d 1060, 1065 (10th Cir. 1994); see also Boyd v. Ward , 179 F.3d

904, 912 (10th Cir. 1999). We also consider defense counsel’s actions, including

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failures to object at trial. Le, 311 F.3d at 1013 (citing Trice v. Ward , 196 F.3d

1151, 1167 (10th Cir. 1999)).

Thus, in considering Parker’s vouching allegations, we ask whether the

OCCA unreasonably applied the due process principles of Lisenba and subsequent

Supreme Court case law to the current case. Reviewing the specific testimony at

issue, both individually and collectively, we conclude that the challenged

testimony was not so egregious that it “fatally infected” or “necessarily

prevent[ed]” a fair trial. Lisenba , 314 U.S. at 236. The OCCA’s adjudication of

this issue was therefore not an unreasonable application of Supreme Court law.

1. Dr. Inhoffe’s testimony

Dr. Inhoffe, who had interviewed and physically examined the child after

the incidents, testified as an expert in child abuse. Parker objects to Dr. Inhoffe’s

opinion testimony during three parts of the trial where she concluded that the

child’s excessive sexual knowledge was “consistent with” that of a victim who

had been sexually abused. Near the close of her direct examination, Dr. Inhoffe

testified as follows:

Q: From what you reviewed, was [the child] consistent in what
she was saying?

A: Yes.

Q: And after the detailed history that she had given you and that
you had conducted, do you feel as though you are able to give
your opinion as to whether or not she was sexually abused?

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 A: Yes.

Q: Would you please tell the ladies and gentlemen of this jury
what your expert opinion is as to whether or not [the child]
was sexually abused?

A: I believe that her information throughout the entire evaluation
was consistent with a child who had been sexually abused.

App. at 411. Next, after a lengthy cross-examination that challenged the

credibility of Dr. Inhoffe’s direct testimony, on redirect examination the

prosecution asked Dr. Inhoffe, “And is your opinion today that sexual abuse took

place?” She responded “Yes.” Id. at 428. Finally, Parker called Dr. Inhoffe as

an adverse witness in the defense’s case in chief. During cross-examination by

the prosecution, she responded “Yes, it is” to the prosecution’s question, “And is

it still your opinion that [the child] was the victim of sexual abuse of a minor

child?” Id. at 553. 2

Whether Dr. Inhoffe’s testimony amounted to impermissible vouching is a

close call. Nevertheless, viewed in its entirety, we cannot conclude that her

testimony violated the general due process standard outlined in Supreme Court

2
Parker also argues that the prosecution magnified the trial court’s error in
admitting this testimony by emphasizing during closing argument Dr. Inhoffe’s
“expert opinion that sexual abuse had occurred.” App. at 771–72. To the extent
Parker is arguing that the prosecutor engaged in misconduct by relying on Dr.
Inhoffe’s testimony during closing argument, he has waived that argument by not
raising it on direct appeal. See infra Part III.F. In addition, taken in the context
of the entire closing argument of both parties and the trial as a whole, none of the
prosecutor’s statements rendered the trial fundamentally unfair.

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precedent. Dr. Inhoffe’s testimony centered around her medical examination of

the child and statements made by the child showing precocious familiarity with

the sexual function. It was Dr. Inhoffe’s opinion, taken in context, that the

child’s statements of excessive sexual knowledge were consistent with abuse.

The expert did not opine or testify that Parker committed sexual abuse. The two

“statements” of opinion that sexual abuse took place consisted of only an

affirmative “yes” and, taken in the context of her testimony as a whole, refer back

to her view that the child had excessive sexual knowledge consistent with

previous abuse. Any concern regarding Dr. Inhoffe’s testimony is also

undermined by the fact that after she engaged in the first two instances of

allegedly vouching testimony during the prosecution’s case in chief, the defense

nonetheless called her to the stand as its first witness.

There is no bright line test for when such testimony crosses the line into the

jury’s realm. However, even if it were permissible to consider cases other than

Supreme Court precedent in resolving this issue, we would find Parker’s argument

unpersuasive. Unlike the testimony in Lawrence v. Oklahoma , 796 P.2d 1176,

1176 –77 (Okla. Crim. App. 1990), Dr. Inhoffe was not asked to provide opinion

testimony about the child’s propensity to lie or tell the truth. Furthermore, as this

court found in both United States v. Charley , 189 F.3d 1251, 1264 –1265, 1269

(10th Cir. 1999) and Hellums v. Williams , Nos. 00-2100 & 00-2109, 2001 WL

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892492, at *3 (10th Cir. Aug. 8, 2001), experts may testify about symptoms

consistent with sexual abuse without improperly vouching for the witness’s

credibility. Viewed in context, Dr. Inhoffe’s testimony indicated that the

information she gained through examination of the child was consistent with a

person who suffered sexual abuse.

Accordingly, we cannot conclude that the OCCA erred by unreasonably

applying the principles of Lisenba to Dr. Inhoffe’s allegedly vouching testimony.

2. Lovett’s testimony

James Lovett, an Oklahoma Department of Human Services Child Welfare

Investigator, testified as a lay witness. Parker asserts that the trial court

improperly allowed the following testimony by Lovett regarding his interview

with the child because the testimony impermissibly vouched for the child’s

credibility:

Q: Mr. Lovett, based upon your investigation, what did you do
with your reports?

A: After I completed the investigation I ruled it confirmed sexual
abuse, finished the 14A and turned it over to the District
Attorney’s Office.

Q: And was it Matthew Parker she was describing in those
statements to you?

A: Yes.

App. at 486.

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 This statement was made at the end of a lengthy direct examination during

which Lovett described his interview with the child. While it concludes that the

child made an allegation of abuse sufficient to refer the case to the district

attorney for further evaluation, this is nothing more than an acknowledgment that

Lovett thought there was sufficient probable cause that a crime had been

committed. But that inference is true of every case in which the police or state

investigators refer a matter to the prosecution for evaluation. Testimony that

probable cause existed to charge the defendant with sexual abuse alone does not

improperly vouch for the credibility of a particular witness or piece of evidence.

Moreover, Parker’s counsel on cross-examination was able to attack

Lovett’s interview of the child to raise questions consistent with Parker’s overall

defense theory that the child had made up her story about sexual abuse. See id. at

512. Parker’s counsel was thus able to undermine the thoroughness of the State’s

investigation and bolster Parker’s trial theme: that he had been unjustly accused

of sexual abuse of a child. Finally, Parker’s counsel did not object to Lovett’s

testimony at trial. This underscores our view that in context the testimony did not

cross the line into impermissible vouching for the child’s testimony.

Accordingly, we cannot conclude that the admission of Lovett’s testimony

deprived Parker of his due process rights.

3. Berry’s testimony

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 Finally, Corporal Berry testified regarding his investigation of the child’s

allegations. The testimony Parker questions is similar to his objections to

Lovett’s testimony. After discussing his interview with the child on direct

examination, Berry gave this testimony:

Q: After compiling all of the reports from the other agencies as
well as your own interview and reports, what did you then do
with this crime—this case file?

A: At that time I reviewed—review all of the reports to see if
there’s any inconsistencies and it appears to be a reliable
complaint, then we—I prepare a prosecution report outlining
what each of the different witnesses—

***

A: After I gather those reports, I compare them, make sure—see if
there’s any inconsistencies, reliability of the account, prepare a
prosecution report outlining what each of the witnesses will
testify to and then prepare an affidavit and forward it to—the
prosecution packet with all the reports, the prosecution report
and the affidavit to the District Attorney’s Office.

Q: And did you do that in this case?

A: Yes, sir.

Q: Were you able to make a determination that sexual abuse of a
minor had occurred?

A: I believe—

Mr. Pacenza: Objection, Your Honor, calls for an opinion.

The Court: Overruled. You can answer that question yes or no. The
question is: Were you able to make a determination, sir? Just
yes or no.

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 A: Yes, sir.

Id. at 510–11. The prosecutor did not ask if Berry concluded that Parker had

committed the crime, nor did Berry directly testify as to the accuracy of the

child’s responses during the interview.

As with Dr. Inhoffe and Lovett, Berry’s testimony centered around his

interview of the child. The allegedly offensive testimony consisted of two

words—“yes, sir”—spoken at the end of his direct examination testimony,

confirming that he had an opinion that “sexual abuse” had occurred. The court

did not allow Berry to disclose what the opinion actually was. While it may be

obvious in context that the police viewed the evidence as sufficient to establish

probable cause that a crime had been committed (after all, the case was referred

for prosecution), we do not find that the OCCA erred in concluding that this

testimony did not impermissibly bolster the child’s testimony in a way that denied

Parker his right to a fundamentally fair trial.

4. Conclusion

In sum, we cannot conclude, even taking these witnesses’ testimonies

together, that Parker’s due process rights were violated. Although the testimony

given by these three witnesses arguably shows that they believed sexual abuse had

occurred, in context the testimonies do not fatally undercut the jury’s

determination of credibility in a case where both the child victim and the accused

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testified and were subject to extensive cross-examination. Every witness called

by one side will to some extent reinforce each others’ testimonies if the testimony

is consistent and credible. The jury was able to weigh all of the testimony against

the child’s trial testimony. Given AEDPA’s deferential standard of review, the

OCCA’s conclusion that Parker’s due process rights had not been violated by the

trial court’s admission of this testimony, in the context of the entire trial, is a

reasonable application of Supreme Court precedent.

C. The admission of the child’s testimony did not violate Parker’s Due
Process rights

Parker’s next argument is that the child’s testimony at trial was so

inconsistent that, absent corroboration, it denied him due process. Parker argues

in essence that “Due Process requires some kind of corroboration to connect

[Parker] to a story with inconsistencies and improbabilities in the testimony that

is the basis of the conviction.” Aple. App. at 32. Both the OCCA and the district

court concluded that the child’s testimony was not unbelievable as a matter of

law, and rejected this argument.

No direct Supreme Court precedent requires corroboration of child witness

testimony. Nevertheless, the OCCA and district court characterized Parker’s

argument as an attack on the sufficiency of the evidence to support the

conviction, and analyzed the child witness testimony under cases that apply the

Supreme Court’s sufficiency of the evidence standard set forth in Jackson v.

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Virginia, 443 U.S. 307 (1979). The Jackson standard derives from the right to

due process and we agree that it controls our analysis here. See Jackson, 443 U.S.

at 315 (due process requires a conviction to be based “upon proof beyond a

reasonable doubt of every fact necessary to constitute the crime with which he is

charged”) (quoting In re Winship, 397 U.S. 358, 364 (1970)).

Under Jackson, to determine whether the child’s testimony was sufficient to

convict Parker, we must decide “whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” 443 U.S. at 319.

“This . . . standard gives full play to the responsibility of the trier of fact fairly to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.” Id.

Parker argues that the child’s testimony does not meet this standard because

her testimony contained contradictions regarding (1) how many times he abused

her, see App. at 375–76, 494–95, 502; (2) whether she was asleep during the

incidents, see id. at 376–77, 495; (3) whether she cried during the incidents,

see id. at 668–73; (4) in which rooms of the homes the abuse occurred, see id. at

366–67, 379, 522; (5) whether ejaculation occurred, see id. at 351, 412; (6) the

color of the semen, see id. at 382, 485–86; and (7) whether the child’s younger

sister told her that Parker did not touch the child, see id. at 373.

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 We cannot conclude under AEDPA that the OCCA unreasonably applied

Jackson in finding the child’s testimony sufficient to convict. As a preliminary

matter, it is axiomatic that the responsibility of adjudging the child’s credibility

belonged to the trier of fact, not to us. See Jackson, 443 U.S. at 319. We do not

have the benefit of observing the witnesses in the crucible of the courtroom

during direct and cross-examination and thus are not in a position to second-guess

the jury’s credibility determinations. To the extent Parker claims that the child

gave inconsistent statements at trial and in the other interviews, his counsel had

the opportunity to cross-examine the child and the other witnesses to expose the

alleged inconsistencies. While the child’s testimony does raise questions about

the details of the assaults, none of it, standing alone or collectively, is inherently

implausible. The jury was in a position to credit or discount the child’s testimony

and weigh the inconsistencies in light of her age and the passage of time.

Parker’s claims about inconsistency are primarily based on the jury’s acceptance

of his and the other defense witnesses’ testimony over the child’s. That

determination, however, is distinctly within the realm of the jury, which we

cannot enter on AEDPA review.

Parker argued for dismissal at the close of the prosecution’s case in chief

on the same grounds; namely, that the child’s testimony was so inconsistent,

unbelievable, and contradictory that no reasonable juror could convict. App. at

-22-
526–27. The trial court, having sat through the testimony, concluded that

sufficient and credible evidence had been presented to leave the question of guilt

or innocence to the jury. Id. at 527.

Accordingly, based on our review of the entire record, and viewing the

evidence in the light most favorable to the government, a rational jury could have

concluded that there was sufficient evidence to convict on every element of the

offense. The child testified in detail regarding her allegations and gave explicit

descriptions of the incidents. She testified about Parker’s clothing and demeanor

during multiple encounters. Her testimony indicated excessive sexual knowledge

for a seven-year-old child. The child also gave similar accounts to her mother

and investigators prior to trial. Finally, and of equal importance, the child’s

testimony held up under careful cross-examination by Parker’s trial counsel. The

jury had the opportunity to hear Parker and the other defense witnesses testify

about their version of the facts, but concluded that Parker had sexually abused the

child.

-23-
 All of this supports the OCCA’s and the district court’s conclusion that a

rational jury could have found sufficient evidence of guilt. 3 Accordingly, we

deny habeas relief on this ground. 4

D. The trial court did not violate Parker’s Due Process rights by
refusing to permit additional discovery of Lovett’s notes during trial

Parker next contends that the trial court violated his due process rights by

refusing to allow supplemental discovery of handwritten notes taken by the

Oklahoma investigator during his interview with the child. Prior to trial, the

prosecution provided to Parker’s counsel the file of the Department of Human

3
The OCCA rejected a sufficiency of evidence argument in a child sexual
abuse case similar to this one. In Martin v. Oklahoma, 747 P.2d 316 (Okla. Crim.
App. 1987), the OCCA explained that “corroboration is required when the
victim’s testimony is so incredible or has been so thoroughly impeached that the
reviewing court must say that the testimony is clearly unworthy of belief.” Id. at
318. However, it concluded that no corroboration was required in Martin because
the description of the acts the victim gave to the police, his parents, and a social
worker were “in such graphic detail and exhibit[ed] such a familiarity with sexual
function that it would be incredible to believe that a seven-year-old boy would
have knowledge of these details from any source other than personal experience.”
Id. Furthermore, the court noted that corroboration “was present to some degree
in the striking consistency of [the victim’s] testimony with the accounts he gave
to [other witnesses].” Id.
4
Parker also argues in his brief that the child’s allegedly inconsistent
testimony rendered the trial fundamentally unfair, again citing Lisenba v.
California, 314 U.S. 219 (1941). As we have stated above, the child’s testimony
was not inherently implausible and the jury was given sufficient evidence upon
which to base its conclusion. Therefore, the child’s allegedly inconsistent
testimony did not violate due process by rendering the trial fundamentally unfair,
and the OCCA’s decision is not an unreasonable application of Supreme Court
law.

-24-
Services, including a written report prepared by its investigator, James Lovett.

During cross-examination at trial, Lovett disclosed the existence of handwritten

notes that he took during the course of his interview with the child. The notes

had never been part of the DHS file.

After this disclosure, Parker’s attorney requested the production of the

notes. The trial court denied the request on the grounds that (1) Parker had

already received the DHS records he had requested, which contained a full report

of Lovett’s interview, (2) Parker had the opportunity to obtain Lovett’s personal

file prior to trial, but did not attempt to do so, and (3) Parker could make no

showing that the notes were material or exculpatory. See App. at 491. Parker

now argues that the notes would have allowed him to attack the credibility of

Lovett and the child by showing that Lovett’s interviewing techniques were

overly suggestive.

As an initial matter, we must determine the constitutional basis of Parker’s

due process claim. He characterizes his claim as a violation of his Sixth

Amendment right to confrontation, arguing that the trial court’s ruling prohibited

him from conducting an effective cross-examination of Lovett (the child had

already testified). The “main and essential purpose of confrontation is to secure

for the opponent the opportunity of cross-examination.” Richmond v. Embry , 122

F.3d 866, 871 (10th Cir. 1997) (quoting Delaware v. Van Arsdall , 475 U.S. 673,

-25-
678 (1986)). “[A] defendant’s right to confrontation may be violated if the trial

court precludes an entire relevant area of cross-examination.” Id. (quoting United

States v. Begay , 937 F.2d 515, 520 (10th Cir. 1999)).

Parker’s claim that the district court unconstitutionally denied his discovery

request cannot fall within the Confrontation Clause framework, however, because

Parker had the opportunity to cross-examine Lovett. Parker’s counsel in fact

questioned Lovett’s interviewing techniques during the cross-examination of

Lovett and Corporal Berry. Parker’s actual claim is therefore not that he was

denied his constitutional right of confrontation, but rather that he was denied the

right to obtain discovery necessary to conduct an effective cross-examination, a

violation of general principles of due process. Cf. id . (recharacterizing the

petitioner’s confrontation clause claim as a due process claim that he was not able

to present testimony necessary to his defense). In fact, after the OCCA held on

direct appeal that the trial court’s ruling was not an abuse of discretion, see

OCCA Order at 3, the district court apparently recognized that Parker’s claim did

not fall within the Confrontation Clause framework and construed Parker’s habeas

claim as a due process challenge, concluding that the trial court’s resolution of

the discovery issue did not result in a fundamentally unfair trial. District Court

Order at 10 (citing Elliott v. Williams , 248 F.3d 1205, 1214 (10th Cir. 2001)). We

-26-
agree with the district court and therefore construe Parker’s allegations to claim a

violation of due process.

Because the basis for Parker’s challenge is that the trial court

unconstitutionally denied discovery of Lovett’s notes mid-trial, under AEDPA we

look to the Supreme Court’s due process precedent regarding the conduct of trial.

Although the Court has stated that “[t]he right of an accused in a criminal trial to

due process is, in essence, the right to a fair opportunity to defend against the

state’s accusations,” Chambers v. Mississippi , 410 U.S. 284, 294 (1973), a

defendant has the obligation to “comply with established rules of procedure . . . to

assure both fairness and reliability in the ascertainment of guilt and innocence.”

Id. at 302. Parker’s interest in obtaining documents mid-trial, therefore, must

concomitantly “bow to accommodate other legitimate interests in the criminal trial

process.” Michigan v. Lucas , 500 U.S. 145, 149 (1991) (citations and quotations

omitted).

Accordingly, our task is to balance Parker’s need for the additional

discovery against the court’s reasons for denying the discovery. See Richmond ,

122 F.3d at 872 (explaining that to find a due process violation in the exclusion of

evidence the court “must balance the importance of the evidence to the defense

against the interests the state has in excluding the evidence”). We cannot grant

habeas relief unless the trial court’s ruling “render[ed] the trial so fundamentally

-27-
unfair as to constitute a denial of federal constitutional rights.” Elliott , 248 F.3d

at 1214 (quoting Vigil v. Tansy , 917 F.2d 1277, 1280 (10th Cir. 1990)). In

engaging in this fundamental fairness analysis, we reiterate that we must examine

the proceedings as a whole. See Donnelly v. DeChristoforo , 416 U.S. 637, 643

(1974).

The trial court’s denial of Parker’s discovery request did not violate due

process. First, Parker could have requested the investigator’s personal files

before trial but did not do so. Instead, he only requested and in fact obtained the

DHS file. Second, Parker’s counsel did not lay a foundation during Lovett’s

examination that gave the trial court any reason to believe that the notes were not

faithfully reflected in the written report prepared by Lovett and already admitted

into evidence. Third, Parker’s counsel did not ask the trial court for an in camera

review of the notes during the course of the trial; for us it remains pure

speculation whether the notes contained anything not already reflected in Lovett’s

written report. It is equally possible that the notes would be harmful to Parker’s

case, showing testimony consistent with what the jury had already heard from the

child. Finally, Parker’s purpose in seeking the notes was to attempt to show that

Lovett used improper interviewing techniques with the Child. See Aplt. Op. Br.

51. However, Parker exposed the jury to this theory through his cross-

examination of Corporal Berry. See Aplt. App. 512.

-28-
 Accordingly, while it might have been the better course for the trial court to

have reviewed Lovett’s notes in camera before making its ruling, in light of the

entire testimony, including the tactical decisions made by Parker’s attorney, the

court’s decision to deny the document request in the middle of trial was not

fundamentally unfair. The OCCA’s holding that Parker was not entitled to

discovery of Lovett’s notes during trial was not an unreasonable application of

Supreme Court law.

E. The jury instructions did not violate Parker’s due process rights

Parker next argues that the trial court violated his due process rights by

failing to instruct the jury on a necessary element of the offense for which he was

charged. Specifically, he contends that the statute under which he was convicted

required the jury to find as a necessary element of the crime that he or his fiancee

operated a “child care facility.” See Okla. Stat. tit. 21, § 843 (1991), replaced by

Okla. Stat. tit. 10, § 7115 (Supp. 1995); Okla. Stat. tit. 21, § 845 (Supp. 1994),

replaced by Okla. Stat. tit. 10, §§ 7102 to 7105 (Supp. 1995). 5 He claims that his

5
The two sections governing sexual abuse of a child operate together.
Section 843 (1991) provides:

Any parent or other person who shall willfully or maliciously . . .
sexually abuse [a] child [under the age of eighteen (18)], as those
terms are defined by Section 845 of this title . . . shall upon
conviction be punished by imprisonment in the State Penitentiary not
exceeding life imprisonment . . . . (emphasis added).
(continued...)

-29-
fiancee’s informal babysitting arrangements with the child’s mother did not fit

under the definition of “child care facility,” thereby exempting Parker from

Oklahoma’s sexual abuse of a minor statute. 6

As an initial matter, Parker asserts that AEDPA’s deferential standard of

review should not apply to this claim because the OCCA employed an incorrect

legal standard in reviewing it. See Cargle v. Mullin , 317 F.3d 1196, 1202 (10th

Cir. 2003). Specifically, he argues that the OCCA should have applied United

States v. Gaudin, 515 U.S. 506 (1995), which states the fundamental rule that due

process requires a jury determination that a defendant is guilty of every element

5
(...continued)
Section 845 then defines “sexual abuse” as including “rape, incest and lewd or
indecent acts or proposals, as defined by law, by a person responsible for the
child’s welfare.” Id. § 845(B)(5) (Supp. 1994) (emphasis added). Section 845
separately defines “person responsible for the health or welfare of the child” to
include “an owner, operator, or employee of a child care facility as defined by
Section 402 of Title 10 of the Oklahoma Statutes.” Id. § 845(B)(4) (emphasis
added). Finally, § 403 of Title 10, titled the Child Care Licensing Act, states that
the provisions of that Act do not extend to “[i]nformal arrangements which
parents make with friends or neighbors for the occasional care of their children.”
Id. § 403(A)(2).
6
In his brief, Parker also argues that his indictment improperly charged him
under Okla. Stat. tit. 10, § 7115, which did not become effective until November
1, 1995, one month after the end of the time period alleged in the information
(June 1, 1994, to October 1, 1995). See Aplt. Br. at 47. However, Parker has
failed to preserve this argument for our review because he did not raise it in the
district court. See Jones v. Gibson, 206 F.3d 946, 958 (10th Cir. 2000); Rhine v.
Boone, 182 F.3d 1153, 1154 (10th Cir. 1999). Furthermore, the OCCA
determined under state law that Parker’s indictment sufficiently outlined the
charges against him, even under the older statute. See App. at 25 (citing
Roberson v. Oklahoma, 362 P.2d 1115, 1117 (Okla. Crim. App. 1961)).

-30-
of the crime with which he was charged. Notwithstanding the failure of the

OCCA to explicitly mention Gaudin, it is well settled that a state court need not

cite to specific Supreme Court precedent; in fact it “need not even be aware of

[Supreme Court] precedents, ‘so long as neither the reasoning nor the result of the

state-court decision contradicts them.’” Mitchell v. Esparza, 540 U.S. 12, 124 S.

Ct. 7, 10 (2003) (per curiam) (quoting Early v. Packer, 537 U.S. 3, 8 (2002)).

We may set aside a state conviction on the basis of erroneous jury

instructions when the “ailing instruction by itself so infected the entire trial that

the resulting conviction violates due process.” Estelle v. McGuire, 502 U.S. 62,

72 (1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). On habeas

review, however, “the fact that the instruction was allegedly incorrect under state

law is not a basis for habeas relief.” Id. at 71–72 (citations omitted).

Furthermore, “the [state] courts’ interpretation of the state . . . statute is a matter

of state law binding on this court.” Chapman v. LeMaster, 302 F.3d 1189, 1196

(10th Cir. 2002); see also Missouri v. Hunter, 459 U.S. 359, 368 (1983) (“We are

bound to accept the [state] court’s construction of that State’s statutes.”) (citing

O’Brien v. Skinner, 414 U.S. 524, 531 (1974)); Hatch v. Oklahoma, 58 F.3d 1447,

1464 n.11 (10th Cir. 1995) (“Even if petitioner were to challenge this

construction of [the statute] directly, we would have to defer to the Oklahoma

court’s construction of a state statute.”) (citations omitted).

-31-
 Here, the OCCA held that Parker was properly instructed under Oklahoma

law. Further, the district court concluded that the OCCA properly interpreted

state law and did not violate Parker’s due process rights. With respect to

Oklahoma law, the OCCA relied on Jones v. Oklahoma, 542 P.2d 1316 (Okla.

Crim. App. 1975), in finding that § 843 supported Parker’s conviction. The

OCCA also held, although its holding is opaque, that Oklahoma’s sexual abuse

statute did not incorporate the exemption for informal babysitting arrangements

advocated by Parker. Simply put, Oklahoma law, as interpreted by its state

courts, does not include the additional element that Parker asks us on appeal to

include.

As a second consideration, Parker did not object to the instruction

ultimately given by the trial court. Parker initially tendered an instruction that

incorporated by reference portions of the Oklahoma code that cite the informal

babysitting exception to the term “child care facility.” Parker, however, did not

ask for the specific language from the exception. After discussion with the trial

judge, he finally agreed to the instruction as tendered. Later, on appeal, he

recharacterized the exception as a necessary element of the crime, but as we

showed above, that argument was rejected by the OCCA. We must accept that

interpretation of state law.

-32-
 Because § 843 does not require the additional element that Parker

advocates, the OCCA’s decision then did not run afoul of established Supreme

Court case law that requires a jury determination on every element of the crime

charged. We therefore cannot conclude that the OCCA unreasonably applied

Supreme Court law and, accordingly, deny habeas relief on this ground.

F. Parker has waived his remaining due process arguments

Parker makes three additional due process claims. First, he argues that the

prosecutor engaged in misconduct a number of times during trial. Second, he

claims that Dr. Inhoffe’s and Lovett’s testimonies discussed incidents of abuse

not alleged in the indictment. Third, he asserts that the trial judge made in

camera comments to the child that violated Oklahoma’s child witness law. See

Supp. App. at 6–25. We do not review these claims because Parker failed to

assert them in his district court petition for habeas relief. See Jones , 206 F.3d at

958; Rhine , 182 F.3d at 1154.

Finding that Parker’s due process rights were not violated, we now consider

his claim of ineffective assistance of counsel.

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

Parker’s final argument is that his trial counsel rendered ineffective

assistance in violation of the Sixth Amendment. He also argues that he is entitled

to an evidentiary hearing on his ineffective assistance claim.

-33-
A. AEDPA applies to Parker’s ineffective assistance claim

Before turning to Parker’s specific contentions, we must address his

argument that our review is de novo because AEDPA does not apply to this claim.

Parker asserts that AEDPA does not apply because the OCCA failed to apply the

proper standard from Strickland v. Washington, 466 U.S. 668 (1984), which

governs ineffective assistance claims. See Cargle v. Mullin , 317 F.3d 1196, 1202

(10th Cir. 2003) (noting that AEDPA’s deferential standard “does not apply if the

state court employed the wrong legal standard in deciding the merits of the

federal issue”). According to Parker, the OCCA applied a clear and convincing

standard, instead of the reasonable probability standard outlined in Strickland.

We find that the OCCA applied the correct governing rule, and therefore

AEDPA applies. The OCCA did not directly cite to Strickland in its order, but

instead relied on Humphreys v. Oklahoma, 947 P.2d 565 (Okla. Crim. App. 1997),

a state case that applies the standard from Strickland. As we have already

explained, the state court need not cite to specific Supreme Court precedent, nor

need it “even be aware of [such] precedents, ‘so long as neither the reasoning nor

the result of the state-court decision contradicts them.’” Mitchell, 124 S. Ct. at

10. Although the OCCA’s order also references a clear and convincing evidence

standard, it does so with regard to whether Parker should have been granted an

evidentiary hearing on direct appeal, not whether he met the Strickland standard.

-34-
See Okla. Ct. Crim. App. Rule 3.11 (1998) (requiring a defendant to show “by

clear and convincing evidence there is a strong possibility trial counsel was

ineffective for failing to utilize or identify the complained-of evidence” before

supplementing his record on appeal); cf. 28 U.S.C. § 2254(e)(1) (providing that a

state prisoner must rebut state factual determinations by clear and convincing

evidence).

Thus, because the OCCA applied clearly established federal law to Parker’s

ineffective assistance claim, we can only grant habeas relief if we find that the

OCCA’s application of that law was objectively unreasonable in light of Supreme

Court precedent. Le v. Mullin, 311 F.3d 1002, 1024 (10th Cir. 2002). We now

turn to an analysis of whether the OCCA’s decision is objectively unreasonable

under Strickland.

B. Application of Strickland

To prove ineffective assistance of counsel under Strickland, a petitioner

must show (1) that trial counsel’s performance was deficient, i.e., that he “fell

below an objective standard of reasonableness,” 466 U.S. at 688, and (2) that

“there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceedings would have been different.” Id. at 694. In assessing

whether counsel’s performance was deficient, we must free ourselves from the

“distorting effects of hindsight” by indulging in a strong presumption that counsel

-35-
acted reasonably. Id. at 689. Thus, counsel’s performance is not deficient as long

as it “falls within the wide range of reasonable professional assistance” and

“might be considered sound trial strategy.” Id. (citing Michel v. Louisiana, 350

U.S. 91, 101 (1955)). Parker has the burden of rebutting the presumption that his

counsel acted reasonably. Id. The OCCA held that Parker failed to meet this

burden, and the district court agreed.

1. Reasonableness of counsel’s performance

We first look to the reasonableness of counsel’s performance. “Judicial

scrutiny of counsel’s performance must be highly deferential. It is all too

tempting for a defendant to second-guess counsel’s assistance after conviction or

adverse sentence, and it is all too easy for a court, examining counsel’s defense

after it has proved unsuccessful, to conclude that a particular act or omission of

counsel was unreasonable.” Strickland, 466 U.S. at 689. As noted, to obtain

relief on this prong, Parker must show that “counsel’s representation fell below an

objective standard of reasonableness.” Id. at 688.

Parker argues that trial counsel acted unreasonably in two ways: first, by

failing to make a number of evidentiary objections at trial and, second, by failing

to introduce or obtain certain evidence.

a. Failure to make objections at trial

-36-
 Throughout the course of trial, Parker’s counsel made numerous evidentiary

objections and also moved for a mistrial on at least six occasions. There is no

doubt that Parker’s counsel was aggressive in challenging the prosecution’s case

and the trial court’s rulings at every step of the proceedings. Nonetheless, Parker

argues that counsel unreasonably failed to object to (a) allegedly impermissible

vouching testimony of Dr. Inhoffe, Lovett, and Berry, and (b) the child’s

uncorroborated testimony.

i. Failure to object to the alleged vouching testimony

First, Parker asserts that trial counsel should have objected to the alleged

vouching testimony of Dr. Nancy Inhoffe, James Lovett, and Corporal Rex Berry.

Supp. App. at 16; Aplt. Br. at 16, 18, 24. Regarding these witnesses, as the

OCCA found, trial counsel could have reasonably concluded that their statements

were not objectionable under Oklahoma precedent, which, at the time of trial,

held that only statements directly assessing a witness’s truthfulness are

impermissible under the Oklahoma rules of evidence. See Lawrence v. Oklahoma,

796 P.2d 1176 (Okla. Crim. App. 1990). Therefore, Parker’s counsel was not

deficient in failing to object to this testimony.

-37-
 ii. Failure to object to the child’s uncorroborated
testimony

Parker next argues that counsel failed to object to the fact that the

prosecution’s only direct evidence was the child’s testimony. Aplt. Br. at 23; see

also Supp. App. at 16 (contending that counsel should have asked for an

instruction on the necessity of corroborating testimony). However, counsel did

object to the child’s testimony by moving for a directed verdict of acquittal at the

end of the state’s case in chief on the grounds that the only witness to the crime

was the child and her testimony was too unbelievable and contradictory to form

the basis of a conviction. App. at 526. Furthermore, the OCCA found in Parker’s

direct appeal that state law allowed such testimony and that the trial court did not

err by refusing to grant a directed verdict since the child’s testimony was “not so

incredible or impeached as to require corroboration.” OCCA Order, at 3; Ray v.

Oklahoma, 762 P.2d 274, 277 (Okla. Crim. App. 1988) (stating that the court may

sustain rape conviction on basis of uncorroborated testimony “unless such

testimony appears incredible and so unsubstantial as to make it unworthy of

belief”).

b. Failure to introduce evidence at trial

Parker also contends that trial counsel failed to put on a proper affirmative

defense because he did not introduce (a) testimony of the child victim’s younger

sister, (b) “physical evidence” of his innocence in the form of medical testimony

-38-
about a mole on his genitalia, (c) evidence of a prior allegation of sexual abuse

made by the child’s mother, and (d) a psychological examination of the child.

None of counsel’s actions in this regard was unreasonable.

i. Failure to call the child’s younger sister as a witness

To begin, Parker contends that counsel should have called the child’s

younger sister to testify about three things: (1) “that she knew Petitioner had

never touched [the child victim],” Supp. App. at 16, (2) that she had an argument

with the child victim about Parker and his fiancee’s wedding and this argument

motivated the child victim to invent a story about Parker, id., and (3) that Parker

owned and wore blue sweat pants, whereas the child testified that Parker’s sweat

pants were green. App. at 1022.

We find counsel’s decision not to call the child victim’s sister was

reasonable under the circumstances. The sister was six years old at the time of

trial, App. at 111, which would have made her only four years old at the time of

the events in question. Trial counsel admitted he was unsure what the child

would say on the stand as a witness. Id. at 110. Indeed, she may have been able

to corroborate evidence detrimental to Parker; for instance, that she never saw

anything (corroborating the child’s testimony that the incidents occurred when she

and Parker were alone), id. at 109–11, or that she found semen-like liquid on the

couch. Id. at 352–53, 503–04. Finally, trial counsel cross-examined the child

-39-
victim regarding the argument she had with her sister about the wedding, thus

exposing the jury to this theory of defense. Id. at 365.

ii. Failure to introduce physical evidence

Next, Parker argues that counsel should have shown by physical evidence

that Parker did not have a mole on his genitalia by having Parker submit to a

physical examination. Supp. App. at 16. This decision is curious. The evidence,

if true, could have cast some doubt on the testimony of the child. Counsel did,

however, introduce testimony from Parker’s mother that he had no mole, App. at

597, and cross-examined the child’s recollection of the mole. Id. at 380–81.

Parker testified at trial that he had no mole. Id. at 692.

Notwithstanding this testimony at trial, Parker has failed to show at any

time on appeal that exculpatory physical evidence exists, nor did he ask for the

opportunity to put such evidence in the record in his direct appeal or in district

court on habeas review. In fact, although Parker submitted a post-trial affidavit

alleging numerous errors by his trial counsel, he did not claim that counsel should

have introduced evidence concerning the mole. App. at 1033–35. Finally,

although it is not entirely clear, the child’s testimony can be construed as

mentioning a mole near his genitalia; rebuttal of this testimony is not necessarily

helpful or necessary to Parker’s defense. See id. at 350, 381. Accordingly, on

this record we have no reason to believe that such evidence could be produced or

-40-
would even be exculpatory. We therefore cannot conclude that counsel’s decision

not to introduce additional evidence was objectively unreasonable.

iii. Failure to question or call former babysitter regarding
prior allegations of abuse

Parker also asserts that his counsel should have called one of the child’s

former babysitters to testify to allegations of sexual abuse previously made

against her husband by the child’s mother. Aplt. Br. at 16–17, 24. It is not clear

from the record whether the child herself made the allegations of previous abuse,

which were then communicated to the former babysitter via the mother, or

whether the mother was the source of the allegations. In either case, Parker’s

counsel was not deficient in failing to call the former babysitter as a witness.

First, in a pretrial conference between the judge and both attorneys, the

trial judge questioned whether the former babysitter’s testimony would be

inadmissable hearsay, noting that the testimony would involve “a conversation

between two women based upon what [the child] had told one of them.” App.

103. The judge then expressed serious doubt as to its admissibility: “I’ll even

allow this [former babysitter] to testify if you can overcome the hearsay nature of

her statement. I don’t know how you would do that because it sounds to me like

[hearsay].” Id. at 104. Thus, Parker’s counsel could have reasonably believed

that the former babysitter’s testimony was inadmissible.

-41-
 More importantly, even if the testimony was admissible, Parker’s counsel

could have reasonably concluded that the former babysitter’s testimony was not

relevant and would not benefit the defense. Parker’s trial strategy was that the

child had fabricated the allegations of abuse out of spite for Parker, and that her

allegations were inconsistent, contradictory, and unbelievable. Testimony

regarding previous allegations of abuse against the former babysitter’s husband

does not advance this trial strategy. Thus, when asked mid-trial whether he still

intended to call the former babysitter, Parker’s counsel replied, “I’ve determined

I’m not going to call [her] as a witness.” App. 540. We cannot say that this

strategic decision fell outside “the wide range of reasonable professional

assistance,” Strickland , 688 U.S. at 689, and therefore hold that counsel was not

deficient in failing to call the former babysitter as a witness.

iv. Failure to ask for psychological examination of the child
victim

Finally, Parker maintains that counsel should have requested a

psychological examination of the child. On appeal, Parker claims that his trial

counsel failed to seek an examination because of the mistaken belief that he could

not do so under Oklahoma law. Aplt. Br. at 18; see also Supp. App. at 17. It is

unclear whether Parker is asserting that counsel erred in wrongfully telling Parker

that it was illegal to obtain such an examination or in not obtaining the

examination at all. In any event, Parker has made no showing that a

-42-
psychological examination would have developed admissible evidence. Sheer

conjecture on appeal is not enough to establish ineffective assistance of counsel.

2. Prejudice

Even if any of the above decisions of counsel were unreasonable, Parker

has still failed to show that any prejudice resulted from counsel’s actions. “To

establish . . . prejudice . . . a defendant ‘must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.’” Upchurch v. Bruce, 333

F.3d 1158, 1163 (10th Cir. 2003) (quoting Strickland, 466 U.S. at 694). In view

of the other evidence properly admitted at trial, Parker has not shown a reasonable

probability that the result of his trial would have been different had counsel acted

differently. Accordingly, none of counsel’s acts, either alone or cumulatively,

rise to the level necessary to justify granting the habeas petition.

C. Parker is not entitled to an evidentiary hearing

Parker also argues that he is entitled to an evidentiary hearing on his

ineffective assistance claim. AEDPA restricts our ability to grant evidentiary

hearings to certain limited circumstances. Section 2254(e)(2) provides that “[i]f

the applicant has failed to develop the factual basis of a claim in state court

proceedings, the court shall not hold an evidentiary hearing on the claim unless

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the applicant” can satisfy one of the two exceptions listed in § 2254(e)(2)(A) and

(B). 7 If, however, the habeas petitioner did not “fail[ ] to develop the factual

basis of a claim in State court,” id., then § 2254(e)(2) is not applicable and we

must analyze whether a hearing is required under the pre-AEDPA standard.

Bryan v. Mullin, 335 F.3d 1207, 1214 (10th Cir. 2003) (en banc).

Under the pre-AEDPA standard, a habeas petitioner “must first make

allegations which, if proved, would entitle him to relief.” Medina v. Barnes, 71

F.3d 363, 366 (10th Cir. 1995) (citations omitted). “If the petitioner does that the

court must then determine whether petitioner is entitled to an evidentiary hearing

to resolve any disputed facts underlying his claims.” Id; see also Cannon v.

Mullin, 383 F.3d 1152, 1175 (10th Cir. 2004) (under pre-AEDPA standard,

7
Section 2254(e)(2) reads in its entirety:

(2) If the applicant has failed to develop the factual basis of a claim in State court
proceedings, the court shall not hold an evidentiary hearing on the claim unless
the applicant shows that—

(A) the claim relies on—

(i) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear
and convincing evidence that but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying offense.

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petitioner is entitled to an evidentiary hearing if “his allegations, if true and not

contravened by the existing factual record, would entitle him to habeas relief”).

No hearing is necessary if we can resolve the petitioner’s claims on their merits

based solely on the record before us. See, e.g., Torres v. Mullin, 317 F.3d 1145,

1161 (10th Cir. 2003).

Thus, a threshold question is whether the habeas petitioner was diligent in

trying to develop the record in state court. “[A] failure to develop the factual

basis of a claim is not established unless there is lack of diligence, or some

greater fault, attributable to the prisoner or the prisoner’s counsel.” Williams v.

Taylor, 529 U.S. 420, 432 (2000). A habeas petitioner acts diligently where he

“sought to develop the factual basis underlying his habeas petition . . . but a state

court prevented him from doing so.” Smallwood v. Gibson, 191 F.3d 1257, 1266

(10th Cir. 1999). Here, Parker filed with the OCCA a “Motion to Supplement the

Record and Application for Evidentiary Hearing on Ineffective Assistance of

Counsel.” App. at 1018. The OCCA denied Parker’s request for a hearing, and

the district court agreed. While merely requesting a hearing in state court may

not be enough to satisfy the requirement that he diligently seek to develop a

factual basis for his claim, see Cannon, 383 F.3d at 1176, Parker also submitted

several affidavits and a memorandum of law in support of his request. In our

view, Parker has acted diligently in attempting to develop the factual basis of his

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ineffective assistance claim in state court. We thus apply the pre-AEDPA

standard to his claim that he is entitled to an evidentiary hearing. Under this

standard, we again turn to the Strickland standard for ineffective assistance of

counsel and ask whether Parker would be entitled to habeas relief.

In his motion for an evidentiary hearing, Parker argued that his trial counsel

failed to use available evidence and did not adequately investigate potentially

exculpatory evidence. Specifically, he argued that an evidentiary hearing was

required to address counsel’s alleged failures in the following areas: (1) not

calling the child’s former babysitter to testify to allegations of sexual abuse made

against her husband by the child’s mother; (2) not calling the child’s younger

sister to testify; (3) not presenting evidence, by means of physical examination or

an in camera inspection, to rebut the child’s testimony that Parker had a mole on

his genitalia; (4) not introducing evidence that James Lovett’s testimony focused

only on the last incident of alleged abuse that may have occurred in a different

county; (5) not introducing a videotaped interview between the child and Corporal

Berry of the Tulsa Police Department; and (6) failing to investigate other possible

sources for the child’s excessive sexual knowledge.

We have already determined that Parker’s allegations with respect to (1),

(2), and (3) do not justify our granting habeas relief. Parker has failed to adduce

any additional evidence on these claims in connection with his motion for an

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evidentiary hearing that would alter our analysis. See Medina, 71 F.3d at 367

(finding petitioner’s claim to evidentiary hearing was meritless because he had

not pointed to any new evidence to support his assertion). Thus, no evidentiary

hearing is required on these grounds. Regarding (4), (5), and (6), as explained

below, we similarly find that Parker would not be entitled to habeas relief under

Strickland, and we therefore deny an evidentiary hearing on these grounds as

well.

1. Failure to introduce evidence that Lovett’s testimony only referred to
the “last incident” of abuse

As noted above, DHS caseworker James Lovett conducted an interview

with the child. Parker argues that his trial counsel was ineffective in failing to

introduce evidence that Lovett’s interview focused only on the “last incident” of

abuse, which, according to Lovett’s report, occurred in either late February or

early March, 1996. Parker argues that this is significant for two reasons: first,

the state charged Parker with sexual abuse for acts occurring between June 1,

1994 and October 1, 1995; and second, as of February or March, 1996, Parker had

moved from Tulsa county to Osage county. Thus, Parker argues that Lovett’s

testimony was inadmissible because it focused on an event that occurred in

another county and outside the relevant time frame charged in the information.

App. at 1022.

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 We reject Parker’s argument because it is clear that Lovett’s trial testimony

was not limited to the last incident of abuse. Parker’s allegations are therefore

contravened by existing factual record, and no evidentiary hearing is required to

resolve disputed facts. First, a review of the child’s testimony reveals that she

did not segregate specific episodes by date. Therefore, absent a specific

declaration by Lovett to the contrary, it was reasonable for the jury to assume that

his testimony referred to the totality of abuse, not a single episode. More

importantly, Lovett testified on direct examination that the child stated in the

interview that Parker had been “messing with her” for “approximately the past

year.” Id. at 480. Given this testimony, it is difficult to imagine what Parker’s

counsel could have done in an attempt to limit Lovett’s testimony to only the last

incident of abuse. As such, Parker is not entitled to an evidentiary hearing on this

ground.

2. Failure to introduce videotape of interview with the child

In his motion for an evidentiary hearing, Parker argued that his trial counsel

was ineffective for failing to introduce a videotape of an interview between the

child and Corporal Berry of the Tulsa Police Department. According to Parker,

during the interview the child made several statements that could have been used

to impeach the child’s trial testimony. When cross-examining Berry at trial,

Parker’s counsel attempted to use a written transcript of the videotape, but the

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trial court excluded the transcript on foundation grounds. App. at 515. Parker

does not dispute this ruling. Instead, he argues that “[t]here simply is no

explanation in the record why the videotape itself was not introduced.” Id. at

1024.

But having reviewed the entirety of Berry’s testimony, there is an

explanation for why Parker’s trial counsel did not attempt to introduce the actual

videotape. After the trial court ruled that the transcript was inadmissible,

Parker’s counsel continued to question Berry about statements made by the child

during the interview. The prosecution objected, arguing that any prior

inconsistent statements made by the child during the interview with Corporal

Berry would be hearsay because they were not made under oath. App. at 518.

Referencing Okla. Stat. tit. 12, § 2801(4)(a), the trial judge agreed. Id. Thus,

even assuming that Parker’s characterization of the videotape is accurate, nothing

in the record indicates that a reasonable attorney would have sought to introduce

evidence that the trial court had ruled inadmissible. See Mayes v. Gibson, 210

F.3d 1284, 1289 n.3 (10th Cir. 2000) (applying pre-AEDPA standards and finding

that no evidentiary hearing needed because nothing in the record indicated that a

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reasonable attorney would have acted differently). Under these circumstances

Parker’s counsel was not deficient in failing to introduce the videotape. 8

3. Failure to investigate other possible sources for the child’s sexual
knowledge

Finally, Parker argued in his motion for an evidentiary hearing that his trial

counsel should have investigated a videotaped interview between Berry and the

child’s mother. During the interview, the child’s mother told Berry about several

incidents that, according to Parker, could have been sources of the child’s

excessive sexual knowledge. First, on one occasion the child grabbed her father’s

penis. Second, the child was found in her closet with her half-brother, and the

two were “kind of checking out each other.” And third, the child took baths with

her four brothers on several occasions. App. at 1026. Parker argues that his trial

counsel was ineffective in failing to investigate these alleged incidents.

We reject the argument that Parker’s trial counsel did not investigate other

possible sources of the child’s excessive sexual knowledge. When cross-

examining the child’s mother, Parker’s counsel asked questions about “some

sexual play” between the child and some older boy cousins and half-brother.

8
In addition, trial counsel’s decision not to introduce the videotape can be
attributed to a reasonable trial strategy. Although we do not have the videotape,
the state alleges that it would have opened the door to damaging evidence such as
Parker’s general dishonesty, violence towards the child’s sister, and “sexual
exploitativeness.” App. at 1088.

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App. at 463. Parker’s counsel even quoted from Berry’s interview where the

mother talked about the child “touching her dad.” Id. at 464. Finally, Parker’s

trial counsel stated to the judge that the purpose of such testimony was to suggest

alternative sources for the child’s sexual knowledge. Id. at 462. Parker’s

allegations are thus contravened by existing factual record. On the record before

us, Parker’s counsel was not deficient since he in fact used the information at

trial.

4. Conclusion to ineffective assistance claims

To summarize, we conclude that the OCCA did not unreasonably apply

Strickland to the allegations of ineffective assistance of counsel because none of

the trial counsel’s actions discussed above were deficient based on Strickland’s

objective standard of reasonableness. Parker additionally failed to show that any

prejudice resulted from counsel’s action. Finally, because Parker’s allegations

would not entitle him to habeas relief, we hold that Parker was not entitled to an

evidentiary hearing on his ineffectiveness claim.

D. Parker has waived his remaining ineffective assistance of counsel
arguments on appeal

Parker raises several other alleged failures of counsel to object at trial, all

of which he has waived by failing to assert them in his district court habeas

petition. See Jones v. Gibson, 206 F.3d 946, 958 (10th Cir. 2000); Rhine v.

Boone, 182 F.3d 1153, 1154 (10th Cir. 1999). These alleged errors include

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(1) failing to object to the judge’s conversation with the child in chambers before

trial, (2) failing to object when the trial court did not conduct a hearing before

admitting testimony about the investigators’ interviews with the child, (3) failing

to object to Dr. Inhoffe’s and Lovett’s testimony discussing incidents of abuse not

alleged in the indictment, (4) failing to object to a number of questions by the

prosecutor, (5) failing to object to statements in the prosecutor’s closing argument

regarding his belief in the truthfulness of the witnesses, and (6) failing to object

to Parker’s conviction under a statute that was not in effect at the time of the

abuse.

V. CONCLUSION

In conclusion, we cannot find that the OCCA’s determination on direct

appeal was contrary to or an unreasonable application of Supreme Court

precedent, as required by AEDPA. See 28 U.S.C. § 2254(d). Furthermore, we

find that Parker has not made a sufficient showing to be entitled to an evidentiary

hearing on his ineffective assistance of counsel claim. Because we find no single

constitutional error, we also must reject Parker’s argument that cumulative error

resulted. Accordingly, we AFFIRM the district court’s denial of Parker’s habeas

corpus petition.

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