Boyle v. McKune

FILED
United States Court of Appeals
Tenth Circuit

October 16, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARK T. BOYLE,

Petitioner-Appellant,
v. No. 06-3025
DAVID R. McKUNE, Warden,
Lansing Correctional Facility, and
THE KANSAS ATTORNEY
GENERAL,

Respondents-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 5:03-CV-03027-SAC)

Madeline S. Cohen, Assistant Federal Public Defender (Raymond P. Moore,
Federal Public Defender, with her on the brief) Federal Public Defender’s Office,
Denver, Colorado, for Petitioner-Appellant. Mark T. Boyle filed a supplemental
brief pro se.

Jared S. Maag, Deputy Solicitor General, Kansas Attorney General’s Office,
Topeka, Kansas, for Respondents-Appellees.

Before TYMKOVICH, GORSUCH, and HOLMES, Circuit Judges.

TYMKOVICH, Circuit Judge.
 Mark T. Boyle is a state prisoner serving a sentence of 424 months after

being convicted of multiple counts of aggravated criminal sodomy and sexual

battery. Boyle petitioned for habeas corpus relief pursuant to 28 U.S.C. § 2254,

and the district court denied the petition in all respects. We granted a certificate

of appealability (COA) on Boyle’s claims alleging ineffective assistance of trial

and appellate counsel.

After carefully examining the record before us, we conclude Boyle is not

entitled to relief on either claim. Specifically, we hold (1) Boyle is not entitled to

an evidentiary hearing on his claim of ineffective assistance of trial counsel; (2)

Boyle’s trial counsel was not constitutionally ineffective for failing to interview

or call to the stand certain witnesses; and (3) Boyle’s appellate counsel was not

ineffective for failing to challenge the sufficiency of the evidence on direct

appeal.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we therefore

AFFIRM.

I. Background

A. Factual Background

Boyle’s state court convictions stemmed from non-consensual sexual acts

with two female victims: L.B. and C.G. On July 15, 1997, Boyle and L.B. met for

the first time at a restaurant in Wichita, Kansas. They each consumed several

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drinks at the bar of the restaurant and began a consensual sexual relationship later

that night. The relationship continued for several weeks.

During this time Boyle met C.G. On July 26, Boyle and C.G. had drinks at

a restaurant and then a topless bar. Afterwards, C.G. and Boyle drove to C.G.’s

home. The two went up to C.G.’s bedroom, where Boyle began having anal sex

with her until she told him to stop and he did. The next morning, C.G. and Boyle

engaged in additional sexual acts. Although C.G. did not want the sexual contact,

she felt she could not refuse. A few days later, C.G. told her doctor, and then the

police, that she had been assaulted.

Within a week of his encounter with C.G., Boyle took L.B. to a Wichita

restaurant called Café Chicago. L.B.’s memory about the night’s events was

hazy. Although she recalled being with Boyle in a hotel room that night, she

could not remember whether they had sex. She did recall engaging in consensual

sex the following morning. Later that day, when L.B. began feeling pain and

swelling in her rectal area, she became convinced Boyle had engaged in anal sex

with her without her consent the previous night.

Based on these encounters, the district attorney charged Boyle with

multiple counts of aggravated criminal sodomy, rape, and sexual assault. Key

evidence in both cases was the testimony of three expert nurse witnesses. The

nurses opined that non-consensual sexual activity likely occurred based on the

following evidence: (1) certain bruises on both women, (2) “mounting injuries”

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on both women, (3) healing lacerations on C.G., and (4) a tear below the anal

opening on L.B. Boyle was convicted of three counts of aggravated criminal

sodomy and one count of sexual battery with regard to C.G. and L.B. 1 He was

sentenced to 424 months in prison.

B. Procedural History

Boyle appealed his sentence to the Kansas Court of Appeals. He focused

his appeal on (1) the nurses’ qualifications to serve as expert witnesses, and (2)

the jury instructions on two of the counts. The court affirmed Boyle’s sentence

and the Kansas Supreme Court denied review.

Proceeding pro se, Boyle then sought collateral review of his sentence

under Kansas Statutes Annotated § 60-1507. Boyle raised multiple issues.

Relevant to this appeal, he presented, for the first time, claims of ineffective

assistance of trial and appellate counsel. The state trial court appointed counsel

to represent Boyle in the collateral proceedings and held a hearing on the claims.

The trial court determined Boyle was not entitled to an evidentiary hearing on any

issue because he failed to supply sufficient evidence to show his entitlement to

relief. The Kansas Court of Appeals affirmed and prevented Boyle from raising

some of the issues presented in the motion, although it did not explain any

1
Boyle was also found guilty of one count of sexual battery against an
additional victim, J.J.; but that conviction is not before us.

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specific deficiency with respect to the ineffective assistance of counsel claim.

The Kansas Supreme Court denied review.

Boyle next filed a federal habeas corpus petition pursuant to 28 U.S.C.

§ 2254. Among other claims, Boyle again argued he had received ineffective

assistance of trial and appellate counsel. Boyle sought an evidentiary hearing to

develop the record on the issue of whether his trial counsel was ineffective for

failing to interview expert medical witnesses and certain other witnesses Boyle

thought helpful to his case.

The district court denied the petition, but this court granted a COA on two

issues: (1) whether Boyle’s trial counsel was ineffective for failing to interview or

investigate witnesses for the defense, and (2) whether Boyle’s appellate counsel

provided ineffective assistance.

II. Ineffective Assistance of Trial Counsel

Before arguing the merits of his case, Boyle asks this court to grant him an

evidentiary hearing on his claim of ineffective assistance of trial counsel. We

address that issue first.

A. Evidentiary Hearing

Because Boyle’s habeas petition is governed by the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA), he can obtain an evidentiary

hearing in federal court by (1) showing he was diligent in developing the factual

basis for his claim in state court, 28 U.S.C. § 2254(e)(2) (2000); Williams v.

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Taylor, 529 U.S. 420, 429–31 (2000), and (2) asserting a factual basis that, if

true, would entitle him to habeas relief. Schriro v. Landrigan, __ U.S. __, 127 S.

Ct. 1933, 1940 (2007); Mayes v. Gibson, 210 F.3d 1284, 1287 (10th Cir. 2000).

This means he must show that, taking his allegations as true, he would prevail on

his claim.

We address each of these requirements in turn.

1. Diligence

Section 2254(e)(2) prohibits a federal court from conducting an evidentiary

hearing on a claim if the petitioner failed to develop the factual basis for it in

state court. The Supreme Court has held “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, 529 U.S. at 432;

see also id. at 431 (noting that the word “‘fail’ connotes some omission, fault, or

negligence on the part of the person who has failed to do something”).

“Diligence will require in the usual case that the prisoner, at a minimum, seek an

evidentiary hearing in state court in the manner prescribed by state law.” Id. at

437.

Seeking an evidentiary hearing “in the manner prescribed by state law”

does not mean the prisoner must actually obtain a hearing. See, e.g., Barkell v.

Crouse, 468 F.3d 684, 695–96 (10th Cir. 2006) (holding that defendant’s request

for an evidentiary hearing in state court—although denied—was in a manner

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prescribed by state law and therefore satisfied the diligence requirement); Cannon

v. Mullin, 383 F.3d 1152, 1177 (10th Cir. 2004) (same). Petitioner need only

show he “complied with what reasonably appeared to be the established state-law

requirements . . . even if his reasonable interpretation of state law turned out to be

wrong.” Barkell, 468 F.3d at 694.

The state courts are, of course, the final arbiters of when and how a state

prisoner can obtain an evidentiary hearing in their courts. But whether a habeas

petitioner has shown “a lack of diligence” in failing to obtain an evidentiary

hearing is a question of federal law decided by the federal habeas courts. Id. at

693–95; see also Cannon, 383 F.3d at 1177 (noting the question of diligence is a

question to be determined by the federal district court). To determine whether a

petitioner has shown the requisite diligence under federal law, we look to the

state law controlling at the time petitioner sought an evidentiary hearing. The

petitioner can prove his diligence by showing he “could reasonably have

believed” his request for an evidentiary hearing in state court met the

requirements for such a hearing under then-existing state law. See Barkell, 468

F.3d at 695–96. This is a legal question the federal habeas court must decide

based on an objective standard; petitioner’s subjective thoughts are irrelevant.

Applying this framework, Boyle may escape the bar of § 2254(e)(2) only if

he developed the basis of his ineffectiveness claim in the Kansas state courts,

meaning he was diligent in pursuing his claim there. On the advice of counsel,

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Boyle first raised his claim during collateral review under Kan. Stat. Ann. § 60-

1507. The Kansas trial court denied him an evidentiary hearing, and the Kansas

Court of Appeals affirmed. Our task is to determine whether Boyle “could

reasonably have believed” his request for an evidentiary hearing met the then-

existing Kansas law requirements.

Boyle filed his state court petition in 2000. Under the controlling Kansas

precedent at that time, to obtain an evidentiary hearing a petitioner must set forth

enough background facts supporting his claim to “demonstrate that petitioner is

entitled to relief.”

To be entitled to an evidentiary hearing on a post-conviction motion
under K.S.A. 60-1507 the movant is required to allege a factual basis
in the motion to support his claim for relief. . . . While corroboration
of petitioner’s statements or allegations is no longer required, a petition
must set forth a factual background, names of witnesses or other
sources of evidence to demonstrate that petitioner is entitled to relief.

Sullivan v. State, 564 P.2d 455, 457 (Kan. 1977). (citations omitted). 2

The diligence question in this case is close, but for purposes of this appeal

we can assume he met the Kansas standard at the time he filed collateral

proceedings. Even assuming compliance on the diligence front, we still conclude

he is not entitled to habeas relief.

2
We note the Kansas standard for an evidentiary hearing is nearly
identical to the federal standard. Compare Schriro, 127 S. Ct. at 1940 (“In
deciding whether to grant an evidentiary hearing, a federal court must consider
whether such a hearing could enable an applicant to prove the petition’s factual
allegations, which, if true, would entitle the applicant to federal habeas relief.”).

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 2. Entitlement to Hearing

Having assumed Boyle was diligent in developing the factual basis for his

claim of ineffective assistance in state court, we next consider whether Boyle is

entitled to relief on that claim in federal court. Boyle is entitled to an evidentiary

hearing so long as his factual allegations, “if true, would entitle [him] to federal

habeas relief.” Schriro, 127 S. Ct. at 1940; Mayes, 210 F.3d at 1287. Consistent

with this standard, “an evidentiary hearing is unnecessary if the claim can be

resolved on the record.” Anderson v. Att’y Gen. of Kan., 425 F.3d 853, 859 (10th

Cir. 2005); see also Schriro, 127 S. Ct. at 1940 (“[I]f the record refutes the

applicant’s factual allegations or otherwise precludes habeas relief, a district court

is not required to hold an evidentiary hearing.”).

Kansas asks us to review Boyle’s entitlement to relief under the deferential

standards set forth in 28 U.S.C. § 2254(d). Although its decisional language is

unclear, the Kansas Court of Appeals seems to have rejected Boyle’s

ineffectiveness claim on procedural, rather than substantive, grounds. The court

held, “Boyle raises several issues in his 60-1507 motion that could have been

raised on direct appeal . . . . All of the issues he attempts to raise have been or

could have been dealt with on his direct appeal.” Boyle v. State, No. 86,730 (Kan.

Ct. App. Oct. 4, 2002) (per curiam) (unpublished). 3

3
We ordinarily do not review issues on habeas that have been defaulted in
state court on an independent and adequate state procedural ground. Cannon, 383
(continued...)

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 Whether or not we think the court’s decision involves the full-blown

invocation of a procedural bar, it does not constitute an adjudication on the merits

under our case law. See generally Harris v. Poppell, 411 F.3d 1189, 1195–96

(10th Cir. 2005) (citing cases). See also Wilson, 2008 WL 3166975, at *12

(“When a state court has not examined [petitioner’s] non-record evidence, it has

reached no conclusion ‘on the merits.’”); Valdez v. Cockrell, 274 F.3d 941, 946–47

(5th Cir. 2001) (“An adjudication on the merits occurs when the state court

resolves the case on substantive grounds, rather than procedural grounds.”

(internal quotation marks omitted)).

Because Boyle’s claim was not adjudicated on the merits in state court,

§ 2254(d)’s deferential standards of review do not apply to our merits

determination. See 28 U.S.C. § 2254(d) (setting forth a deferential standard of

review for “any claim that was adjudicated on the merits in State court

proceedings”). Without an adjudication on the merits, there is no state court

decision to which we could defer. See Barkell, 468 F.3d at 697–98. Therefore,

Boyle does not have to prove the state court’s adjudication of his claim was in

3
(...continued)
F.3d at 1172–73. In this case, however, the Kansas Court of Appeals’ decision is
too uncertain for us to conclude the court invoked a procedural bar to deny
Boyle’s ineffectiveness claim. That the Kansas courts encourage defendants to
bring such claims for the first time in a section 60-1507 collateral appeal bolsters
the view that the court of appeals was not invoking a procedural bar against
Boyle. See, e.g., State v. Cheeks, 908 P.2d 175, 183 (Kan. 1995) (“If ineffective
assistance of counsel is not apparent from a cold reading of the record on appeal,
this court will not reach the issue for the first time on [direct] appeal.”).

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some way unreasonable, see 28 U.S.C. § 2254(d)(1) and (d)(2), but rather that he

is entitled to relief under our independent review of his ineffectiveness claim,

Barkell, 468 F.3d at 698. 4

Under the now familiar two-part standard for judging ineffective assistance,

Boyle is entitled to relief if he can show by a preponderance of the evidence the

following: (1) trial counsel was deficient, i.e., “counsel’s representation fell below

an objective standard of reasonableness”; and (2) the deficiency prejudiced his

defense, i.e., “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Strickland v. Washington, 466 U.S. 668, 688, 694 (1984); accord Sperry v.

McKune, 445 F.3d 1268, 1274–75 (10th Cir. 2006); Anderson, 425 F.3d at 859.

“There is a strong presumption that counsel’s performance falls within the

wide range of professional assistance[;] the defendant bears the burden of proving

that counsel’s representation was unreasonable under prevailing professional

norms and that the challenged action was not sound strategy.” Williamson v.

Ward, 110 F.3d 1508, 1514 (10th Cir. 1997) (quoting Kimmelman v. Morrison, 477

U.S. 365, 381 (1986)). “[A] particular decision not to investigate must be directly

4
The question of AEDPA deference is actually beside the point where, as
here, we conclude petitioner is not entitled to relief upon a de novo review of the
state court record. Because Boyle cannot prevail under this more rigorous
standard of review, he certainly could not prevail if we accorded AEDPA
deference to the Kansas Court of Appeals’ decision.

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assessed for reasonableness in all the circumstances, applying a heavy measure of

deference to counsel’s judgments.” Strickland, 466 U.S. at 691.

Of particular note here is that claims of ineffective assistance of counsel are

not designed to allow defendants to relitigate trial errors that should have been

raised on direct appeal. State habeas petitioners, in particular, are not allowed to

bring their state trial court errors into federal court under the guise of catch-all

ineffective assistance of counsel claims. We cannot allow this practice for the

simple reason that our task on habeas is limited to upholding federal law. See 28

U.S.C. § 2254(a) (“The Supreme Court, a Justice thereof, a circuit judge, or a

district court shall entertain an application for a writ of habeas corpus in behalf of

a person in custody pursuant to the judgment of a State court only on the ground

that he is in custody in violation of the Constitution or laws or treaties of the

United States.” (emphasis added)).

Applying this standard here, we conclude that even if the facts Boyle alleges

were true, he has not met the second prong of Strickland’s ineffectiveness test: He

has failed to show that even if counsel were deficient in the ways he alleges, such

deficiency would have prejudiced his defense. There is simply no reasonable

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

proceeding would have been different.” Strickland, 466 U.S. at 694; see also Boyd

v. Ward, 179 F.3d 904, 915 (10th Cir. 1999) (concluding, after examining the

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“totality of the evidence,” there was “no reasonable probability that the jury would

have reached a different verdict”).

Medical Experts

Boyle first complains of trial counsel’s failure to interview and call to the

stand any expert witnesses. Even assuming some deficiency on the part of

counsel, we agree with the district court that Boyle has not shown the requisite

prejudice. Given the weight of the evidence against him, and the highly

speculative nature of the allegations made by Boyle to support ineffectiveness,

there was “no reasonable probability that, had counsel not committed the errors

[Boyle] now claims were committed, the outcome of the case would have been

different.” See Boyd, 179 F.3d at 915. The main issue at trial was whether C.G.

and L.B. had consented to Boyle’s sexual contact. Both L.B. and C.G. testified

they had not consented, and the nurses who examined the women bolstered their

testimony that the sexual contact was non-consensual. At trial, Boyle’s defense

was that L.B. and C.G. had consented to the contact. In his habeas petition, he

fails to show how calling expert medical witnesses would have bolstered that

defense.

Boyle has failed to show, for example, that medical experts could have

reached a conclusion regarding consent contrary to the conclusions reached by the

nurses. He supplied no evidence or convincing argument that medical testimony

could support his claim. And the speculative witness is often a two-edged sword.

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For as easily as one can speculate about favorable testimony, one can also

speculate about unfavorable testimony. See, e.g., United States v. Snyder, 787

F.2d 1429, 1432 (10th Cir. 1986) (rebutting defendant’s assertion additional

testimony would have been helpful by concluding “it is at least as reasonable, and

maybe more so, to speculate that the testimony of those witnesses would have

damaged defendant’s case”).

Although the medical experts may have provided helpful testimony on direct

examination, the admissions and qualifications elicited by prosecutors on cross

examination may have been damaging. See, e.g., Parker v. Scott, 394 F.3d 1302,

1322 (10th Cir. 2005) (noting that a certain witness not called to the stand “may

have been able to corroborate evidence detrimental to” defendant). This is why

the decision of which witnesses to call is quintessentially a matter of strategy for

the trial attorney. United States v. Miller, 643 F.2d 713, 714 (10th Cir. 1981)

(“Whether to call a particular witness is a tactical decision and, thus, a ‘matter of

discretion’ for trial counsel.”); Boyd, 179 F.3d at 915 (describing decisions

regarding impeaching witnesses and introducing evidence as matters of “trial

strategy and tactics”).

Boyle has also failed to show why counsel needed to obtain any additional

information from expert medical witnesses. Counsel’s cross-examination of the

prosecution’s expert nurse witnesses evidenced a sufficient understanding of the

nature of the evidence against Boyle and its potential weaknesses. See, e.g., R.,

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Kan. D. Ct., No. 97-1539, Vol. 4 at 139–46 (Cross-examination of Nurse

Rosenberg); Vol. 5 at 119–26 (Cross-examination of Nurse Flowers); id. at 144–55

(Cross-examination of Nurse Schunn). Defense counsel even elicited from the

government’s expert nurse witnesses that it was possible the injuries on L.B. and

C.G. could have stemmed from consensual vaginal sex, lack of lubrication, and

even the re-aggravation of a previous injury. See id., Vol. 4 at 145–46; id., Vol. 5

at 123–24, 128.

Counsel’s cross-examination of the prosecution’s other witnesses also shows

the lack of prejudice stemming from counsel’s chosen strategy. At one point, for

example, defense counsel engaged in a discussion with the Wichita police chemist

about two specialized laboratory procedures the chemist used on certain evidence.

See id., Vol. 5 at 99–102. The first test was called an acid phosphatase spot test,

or AP Spot Test for short. And the second test involved the use of a Lumalight to

spot certain substances by making them fluoresce. Trial counsel had sufficient

knowledge and familiarity with these tests to convey to the jury, in the light most

favorable to Boyle’s defense, how the tests worked and what the chemist

discovered. See id.

Given the nature of the evidence arrayed against him and his chosen

defense, there is no reason to think consulting medical experts or putting them on

the witness stand would have changed the outcome of Boyle’s trial. Therefore,

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even assuming counsel was deficient in the manner alleged by Boyle, such

deficiency did not prejudice his defense.

Café Chicago Bartender

Boyle has also failed to show how the testimony of the Café Chicago

bartender—even if favorable to him—would have changed the outcome of his

case. The unwanted sexual contact Boyle was convicted of, with regard to L.B.,

occurred in a hotel room in which only Boyle and L.B. were located. While the

two had drinks at the Café Chicago around 9:00 p.m., nothing unusual was alleged

to have happened at the bar. Only once Boyle and L.B. were alone in the hotel

room, hours later, did the non-consensual sexual contact occur. The relevance of

the Café Chicago bartender’s testimony is therefore highly questionable. See Fed

R. Evid. 401; Medina v. Barnes, 71 F.3d 363, 367 (10th Cir. 1995) (rejecting

petitioner’s claim of ineffective assistance based on counsel’s failure to obtain

witness testimony which would have been “at most cumulative, and of limited

probative value”).

Once again, Boyle sets forth speculative assertions in attempting to prove

his claim; these assertions are clearly insufficient to carry his burden of proving

prejudice. See Strickland, 466 U.S. at 693 (“Attorney errors come in an infinite

variety and are as likely to be utterly harmless in a particular case as they are to be

prejudicial.”); id. at 694 (“The defendant must show that there is a reasonable

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

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

sufficient to undermine confidence in the outcome.”). Simply put, Boyle’s

allegations regarding the testimony of the Café Chicago bartender, even if true, do

not rise to a level where they undermine confidence in the outcome of his trial.

***

Because Boyle would not be entitled to relief on his ineffectiveness claim

even if his allegations were true, he is not entitled to an evidentiary hearing on the

claim. See Schriro, 127 S. Ct. at 1940 (“[I]f the record refutes the applicant’s

factual allegations or otherwise precludes habeas relief, a district court is not

required to hold an evidentiary hearing.”). Consequently, the district court did not

abuse its discretion in refusing to grant Boyle such a hearing. See id.; Anderson,

425 F.3d at 858.

B. Ineffective Assistance of Trial Counsel

As we have just shown, even taking Boyle’s factual allegations as true, he

cannot show he was prejudiced by any alleged deficiency in counsel’s

performance. He therefore has not made out a claim of ineffective assistance of

trial counsel. See Strickland, 466 U.S. at 691 (“An error by counsel, even if

professionally unreasonable, does not warrant setting aside the judgment of a

criminal proceeding if the error had no effect on the judgment.”). The district

court correctly denied habeas relief to Boyle on this claim.

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 III. Ineffective Assistance of Appellate Counsel

Finally, Boyle argues his state appellate counsel provided ineffective

assistance by failing to raise the issue of sufficiency of the evidence on direct

appeal. Finding no possibly meritorious arguments supporting this position,

Boyle’s federal habeas counsel submitted an Anders-brief on the issue. See Anders

v. California, 386 U.S. 738 (1967). Although Boyle has submitted a supplemental

pro se brief reiterating his position, we agree with counsel there are no legally

non-frivolous arguments supporting Boyle’s claim.

Appellate counsel cannot be deficient for failing to raise a frivolous

argument. Smith v. Robbins, 528 U.S. 259, 278 (2000). The Sixth Amendment’s

right to counsel “does not include the right to counsel for bringing a frivolous

appeal.” Smith, 528 U.S. at 278; see also Cargle v. Mullin, 317 F.3d 1196, 1202

(10th Cir. 2003) (“[O]f course, if the issue is meritless, its omission will not

constitute deficient performance.”). To prevail on a sufficiency-of-the-evidence

claim, a defendant must meet the high burden of showing “upon the record

evidence adduced at the trial no rational trier of fact could have found proof of

guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324 (1979);

see also State v. Knetzer, 600 P.2d 160, 161 (Kan. 1979) (“In challenging the

sufficiency of the evidence, the defendant faces a heavy burden.”).

Sufficient evidence was adduced at trial for a rational fact-finder to have

found proof of Boyle’s guilt beyond a reasonable doubt. The main issue at

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Boyle’s trial was whether or not C.G. and L.B. had consented to sexual contact

with Boyle. Both women testified they did not give consent, and expert nurse

witnesses presented additional evidence to corroborate that testimony. Because

the Kansas appellate courts would have viewed all the evidence in the light most

favorable to the government, any sufficiency-of-the-evidence argument would

have been entirely frivolous. See State v. Parker, 147 P.3d 115, 124 (Kan. 2006);

Knetzer, 600 P.2d at 161; State v. Lewis, 5 P.3d 531, 536 (Kan. Ct. App. 2000).

Boyle claims appellate counsel should have argued L.B. had not testified

credibly at trial and he points to various facts that allegedly cast doubt on the

credibility of her testimony. But as the Kansas appellate courts have made clear

they do not weigh the credibility of witnesses on appeal, this argument would have

been a sure loser in Boyle’s state appeal. See, e.g., Knetzer, 600 P.2d at 161 (“It is

well-recognized that it is not the function of the appellate courts to weigh

conflicting evidence, to pass on the credibility of witnesses, or to redetermine

questions of fact. The reviewing court is concerned only with evidence that

supports the trial court’s findings, not with evidence that might have supported

contrary findings.”); Lewis, 5 P.3d at 536 (noting that in reviewing a sufficiency-

of-the-evidence claim, the court will not “pass on the credibility of witnesses, or

redetermine factual questions”).

Accordingly, we agree with the district court’s disposition of this claim.

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 IV. Conclusion

For the reasons set forth above, the district court’s denial of Boyle’s petition

for a writ of habeas corpus is AFFIRMED.

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