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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