F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 17 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
ARTHUR ALLEN POUNCIL, JR.,
Petitioner-Appellant, No. 04-3359
v. District of Kansas
MICHAEL A. NELSON; ATTORNEY (D.C. No. 01-CV-3143-SAC)
GENERAL OF KANSAS,
Respondents-Appellees.
ORDER *
Before EBEL, MURPHY, and McCONNELL , Circuit Judge.
Arthur A. Pouncil, Jr., a state prisoner proceeding pro se, seeks a certificate
of appealability (COA) that would allow him to appeal from the district court’s
order which denied his habeas corpus petition under 28 U.S.C. § 2254. See 28
U.S.C. § 2253(c)(1)(A). Because we conclude that Mr. Pouncil has failed to
make “a substantial showing of the denial of a constitutional right,” we deny his
request for a COA and dismiss this appeal. 28 U.S.C. § 2253(c)(2).
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
I.
A. Procedural Background
In December 1995, Mr. Pouncil was charged in the District Court of
Sedgwick County, Kansas, with two counts of rape involving a child under the
age of fourteen, in violation of K.S.A. § 21-3502(a)(2). In May 1996, a jury
convicted Mr. Pouncil on both counts. The court sentenced him to a term of 515
months imprisonment. The Kansas Court of Appeals affirmed the convictions in
August 1998. State v. Pouncil , 963 P.2d 446 (Kan. Ct. App. 1998) (unpublished
order). The Kansas Supreme Court denied Mr. Pouncil’s petition for review on
November 11, 1998. In January 1999, Mr Pouncil filed for post-conviction relief
pursuant to K.S.A. § 60-1507 in the District Court of Sedgwick County. The
court summarily denied relief in April 1999, and Mr. Pouncil appealed. On July
14, 2000 the Kansas Court of Appeals affirmed the denial of Mr. Pouncil’s K.S.A.
§ 60-1507 motion. Pouncil v. State , 4 P.3d 1191 (Kan. Ct. App. 2000)
(unpublished order). Mr. Pouncil, due to an oversight by his counsel, was two
days late in filing his petition for review before the Kansas Supreme Court. The
Kansas Supreme Court denied Mr. Pouncil’s motion to file his petition for review
out of time.
Mr. Pouncil commenced this federal habeas action asserting eight claims
for relief on April 16, 2001. After an initial review of Mr. Pouncil’s habeas
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petition the district court concluded that three of his claims were procedurally
barred. The district court issued an order to show cause that Mr. Pouncil could
circumvent the procedural bar to these claims. In a later order, the court
dismissed the three claims and directed the State to respond to the five surviving
claims. On September 23, 2004 the district court issued an order denying Mr.
Pouncil a COA.
B. Factual Background
Mr. Pouncil was convicted of raping two girls, D.S., aged 6, and A.S., aged
4. The children, who lived in Texas with their father, were in Wichita during the
summer of 1995, visiting their mother. Their mother would take the children to
their great aunt’s house while she was at work. While at their aunt’s house, the
girls’ cousin and her common law husband, Mr. Pouncil, watched the children.
After the girls returned to Texas they exhibited behavioral changes and eventually
told their stepmother that Mr. Pouncil had raped them.
D.S. testified at trial that Mr. Pouncil touched her private parts and put his
“thing” in her. Order, R. Doc. 18, at 2. D.S. also testified that she observed Mr.
Pouncil committing the same acts to her sister, A.S. A.S. testified to the same
events. The prosecution also called Leslie Smith Wagner, a physician’s assistant
in Texas, to testify about her examination of both girls. Ms. Wagner testified that
both girls displayed injuries and irregularities in their genital areas. Ms. Wagner
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testified that, in her opinion, both girls had been vaginally penetrated. Despite
Mr. Pouncil’s testimony that the events described by the children did not occur,
the jury found him guilty on both counts.
II.
On appeal, Mr. Pouncil reasserts the eight issues he raised in his initial
federal habeas petition: (1) Ms. Wagner’s use of a knife during an evidentiary
demonstration at trial prejudiced him in violation of his due process rights; (2)
ineffective assistance of trial counsel; (3) ineffective assistance of appellate
counsel; (4) exclusion of certain evidence under the Kansas rape shield statute
violated his Sixth Amendment rights; (5) allowing Ms. Wagner to testify denied
Mr. Pouncil due process; (6) Ms. Wagner’s testimony improperly vouched for the
girls’ testimony; (7) the insufficient evidence used to convict Mr. Pouncil violated
his due process rights; and (8) the trial court’s upward departure of his sentence
was erroneous. The district court determined that the first three issues were
procedurally barred. Mr. Pouncil does not directly appeal this determination, but
because we construe pro se filings liberally, Ledbetter v. City of Topeka , 318 F.3d
1183, 1187 (10th Cir. 2003), we will treat Mr. Pouncil’s filing as a proper appeal
of this ruling. The district court analyzed the remaining five issues under
AEDPA, and we review these claims on an individualized basis. Our
determination whether to grant a COA incorporates the highly deferential AEDPA
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standard for evaluating requests for habeas relief. We will grant a COA “only if
reasonable jurists could debate whether the petitioner might be eligible for habeas
relief— i.e. , . . . whether the state court's decision on the merits of the petitioner’s
constitutional claim was unreasonable or ran contrary to clearly established
federal law.” Dockins v. Hines , 374 F.3d 935, 937 (10th Cir. 2004).
A. Procedurally Barred Claims
The district court concluded that three of Mr. Pouncil’s claims were
procedurally barred for failure to exhaust his state post-conviction remedies. Mr.
Pouncil was two days late in filing his petition for review of these claims in the
Kansas Supreme Court. Mr. Pouncil’s attorney filed a motion for review out of
time, but the Kansas Supreme Court denied the motion and denied Mr. Pouncil’s
petition for review as not timely filed pursuant to K.S.A. § 60-1507. The district
court concluded that Mr. Pouncil could only surmount his procedural default by
showing cause and prejudice or a fundamental miscarriage of justice. The district
court determined that Mr. Pouncil did not make either of these showings and
dismissed the three claims at issue.
The failure of a habeas petitioner to present claims to a state supreme court
in a timely fashion results in procedural default of those claims. See O’Sullivan
v. Boerckel , 526 U.S. 838, 848 (1999). To circumvent procedural default a
plaintiff must show cause and prejudice or a fundamental miscarriage of justice.
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Coleman v. Thompson , 501 U.S. 722, 750 (1991). The record contains a letter
from the attorney who represented Mr. Pouncil during his state post-conviction
proceedings. In the letter, the attorney admits that he mistakenly filed Mr.
Pouncil’s § 60-1507 motion two days late. While this attorney error is
regrettable, it is insufficient to show cause. There is no constitutional right to
counsel in post-conviction proceedings, thus procedural default due to attorney
error “cannot constitute cause to excuse the default in federal habeas.” Id. at 757.
Mr. Pouncil does not allege a fundamental miscarriage of justice in this appeal,
so, like the district court, we conclude that the procedural bar in this case was
valid.
B. The Exclusion of Evidence under the Kansas Rape Shield Act
During his trial the defendant sought to question A.S. and D.S. about an
alleged incident at a trailer park in Texas where some boys allegedly pulled the
girls’ pants down. The trial court prohibited this request, and the Kansas Court of
Appeals affirmed this decision, citing the requirement under the Kansas rape
shield statute that evidence of prior sexual conduct must be relevant to be
admissible. See K.S.A. § 21-3525. Mr. Pouncil contends that the use of the rape
shield statute to bar this evidence violated his Sixth Amendment right to
confrontation. To prevail on this claim Mr. Pouncil must demonstrate that the
decision of the Kansas Court of Appeals was contrary to or involved an
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unreasonable application of clearly established federal law as determined by the
United States Supreme Court. 28 U.S.C. § 2254(d)(1). The Supreme Court has
acknowledged that the right to confrontation “may, in appropriate cases, bow to
accommodate other legitimate interests in the criminal trial process.” Michigan v.
Lucas , 500 U.S. 145, 149 (1991). The Supreme Court has held that the privacy
rights of rape victims are sufficiently important to justify some limitations on the
right to confront. See id. at 149–50 (“[Rape shield statutes] are a valid legislative
determination that rape victims deserve heightened protection against surprise,
harassment, and unnecessary invasions of privacy.”).
The judgment of the Kansas Court of Appeals that the trial court properly
applied the Kansas rape shield statute was not a violation of clearly established
federal law. The evidence of the episode with the boys has little bearing on the
girls’ advanced sexual knowledge. The Supreme Court has held that excluding
marginally relevant evidence of prior sexual experience or activity is a
permissible limitation on the right to confront. See id. at 149. There is no reason
to consider the Kansas Court of Appeals decision an unreasonable application of
the Supreme Court’s jurisprudence on this subject.
C. The Decision to Admit the Expert Testimony of Physician Assistant
Mr. Pouncil challenges the trial court’s decision to allow Ms. Wagner to
testify on behalf of the prosecution. Ms. Wagner, a physician’s assistant,
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provided testimony that the victims had been sexually abused. The Kansas Court
of Appeals rejected Mr. Pouncil’s appeal of this decision, concluding that Ms.
Wagner had the training, experience, and education to qualify as an expert. Mr.
Pouncil argues that admission of this testimony violated his 14th Amendment due
process rights. To demonstrate that the Kansas Court of Appeals violated a
clearly established federal law Mr. Pouncil must meet an extraordinarily high
standard; he must demonstrate that the putative error was a “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.” Parker v. Scott , 394 F.3d 1302 at *5 (10th Cir. 2005) (quoting Lisenba
v. California , 314 U.S. 219, 236 (1941)).
Ms. Wagner had substantial experience examining victims of alleged child
sexual abuse. The trial record demonstrates that she had performed hundreds of
these examinations and trained pediatric residents how to conduct these
examinations. Given Ms. Wagner’s extensive background in the area, we cannot
say that the Kansas Court of Appeals’ analysis of Mr. Pouncil’s appeal violated
clearly established federal law by failing to observe fundamental fairness.
D. Vouching
Mr. Pouncil next argues that Ms. Wagner vouched for the credibility of the
witnesses in violation of his due process rights. Specifically, Mr. Pouncil
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contends that allowing Ms. Wagner to testify that the injuries of the victims were
consistent with vaginal penetration invaded the province of the jury. The Kansas
Court of Appeals rejected this argument because Mr. Pouncil did not make this
objection at trial.
There is nothing in Ms. Wagner’s testimony that suggests the deprivation of
the fundamental fairness required for a violation of due process. In prosecutions
for sexual abuse of a child, experts may, as Ms. Wagner did, testify that a victim
shows symptoms consistent with abuse without improperly vouching for the
credibility of the witnesses. Parker , 394 F.3d 1302 at *7; United States v.
Charley , 189 F.3d 1251, 1264–65, 1269 (10th Cir.1999). The testimony of an
expert can violate a defendant’s due process rights through impermissible
vouching by speaking to the credibility of the victims or stating that the defendant
was the perpetrator of the alleged crime. Parker , 394 F.3d 1302 at *7. Mr.
Pouncil does not argue that Ms. Wagner testified to the credibility of the victims,
nor does he argue that Ms. Wagner suggested that Mr. Pouncil was the perpetrator
of the abuse. Accordingly, Mr. Pouncil has not demonstrated that the Kansas
Court of Appeals violated clearly established federal law by rejecting his
argument that Ms. Wagner improperly vouched for the credibility of the
witnesses.
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E. Sufficiency of the Evidence
Mr. Pouncil argues that there was insufficient evidence to convict him. To
determine whether the judgment of a state court on a sufficiency of the evidence
claim violates clearly established federal law we apply the standard articulated in
Jackson v. Virginia , 443 U.S. 307 (1979). See Parker , 394 F.3d 1032 at *9. A
fact finder’s verdict does not violate a defendant’s due process rights if “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.” Jackson , 443 U.S. at 319. Mr. Pouncil argues that
inconsistencies in the girls’ testimony rendered the evidence insufficient to
convict him. The Kansas Court of Appeals disagreed, citing a number of
consistent portions of the girls’ testimony and the medical evidence that accorded
with their testimony.
The analysis of the Kansas Court of Appeals did not violate clearly
established federal law. To sustain a conviction under K.S.A. § 21-3502(a)(2),
the prosecution must prove beyond a reasonable doubt that the defendant had
sexual intercourse with a child under 14 years of age. The girls’ testimony that
Mr. Pouncil raped them and the expert medical evidence adduced to corroborate
their testimony was more than sufficient for a rational trier of fact to find a
violation of K.S.A. § 21-3502(a)(2). Thus, the Kansas Court of Appeals did not
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violate clearly established law by finding that the evidence was sufficient to
support Mr. Pouncil’s conviction.
F. Upward Departure
Finally, Mr. Pouncil argues that the trial court committed error by
increasing his sentence beyond the maximum authorized by statute on the basis of
a judge-found fact. While Mr. Pouncil’s sentence does violate the Sixth
Amendment requirement articulated in Apprendi v. New Jersey , 530 U.S. 466
(2000), it is the settled law of this Circuit that Apprendi is the not the type of
watershed decision that entitles a defendant to retroactive relief in an initial
habeas action. United States v. Mora , 293 F.3d 1213, 1219 (10th Cir.), cert.
denied , 537 U.S. 961 (2002). Consequently, this claim fails.
III.
For the reasons set forth above, we DENY Mr. Pouncil’s request for a COA
and DISMISS this appeal.
Entered for the Court,
Patrick Fisher, Clerk
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