FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 28, 2016
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 16-1354
v. (D.C. Nos. 1:13-CV-00715-JAP and
1:10-CR-00056-JAP-1)
ADAM FROST, (D. Colo.)
Defendant - Appellant.
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ORDER DENYING CERTIFICATE OF APPEALABILITY
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Before HARTZ, O’BRIEN, and PHILLIPS, Circuit Judges.
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Defendant Adam Frost was convicted by a jury in the United States District Court
for the District of Colorado of raping A.W., a 17-year-old girl. There was no dispute that
Defendant had sex with A.W. at his home in the early morning and that A.W. left the
home immediately thereafter. The issue was consent.
After we affirmed Defendant’s conviction and 200-month sentence, see United
States v. Frost, 684 F.3d 963 (10th Cir. 2012), he filed an unsuccessful motion under
28 U.S.C. § 2255. He seeks a certificate of appealability (COA) in this court to appeal
the district court’s denial of his motion. See 28 U.S.C. § 2253(c)(1)(B) (requiring COA
to appeal denial of § 2255 motion). We deny a COA and dismiss the appeal.
In the district court Defendant raised four ineffective-assistance-of-counsel claims:
(1) that trial counsel was ineffective in not allowing him to testify in his own defense; (2)
that trial counsel was ineffective in failing to object to the hearsay testimony of numerous
witnesses; (3) that trial counsel was ineffective in failing to file a timely motion for a
speedy trial; and (4) that appellate counsel was ineffective in failing to argue issues (1)
and (3) on appeal. In this court Defendant pursues only a portion of issue (2). He argues
that trial counsel was ineffective in failing to object to the hearsay testimony of (1) two
police officers regarding A.W.’s description of the incident shortly after she left
Defendant’s house and (2) a nurse practitioner regarding A.W.’s statements about her
loud resistance during the incident.
A COA will issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a
demonstration that . . . includes showing that reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). In other
words, the applicant must show that the district court’s resolution of the constitutional
claim was either “debatable or wrong.” Id.
To establish a claim of ineffective assistance of counsel, Defendant first has the
burden of overcoming “a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance,” Strickland v. Washington, 466 U.S. 668,
689 (1984), by demonstrating that his counsel’s performance “fell below an objective
standard of reasonableness,” id. at 688. Second, Defendant must demonstrate “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.” Id. at 694. We need not address the first prong
(we can assume, without deciding, that the challenged hearsay was inadmissible and that
the failure to object was not part of a reasoned strategy), because Defendant fails on the
second prong. The district court ruled that Defendant “failed to demonstrate a reasonable
probability that, but for counsel’s error, the result of the proceeding would have been
different,” Order Denying Mot. at 10, Aplt. App., Vol. II at 154, and we agree.
Defendant’s brief in this court argues that the evidence of what A.W. told the
police was important because without it, there would have been “a big gap in the
prosecution’s case.” Aplt. Br. at 21. He explains, “While there is certainly no
requirement that the prosecution introduce evidence that the alleged victim complained to
the police immediately after the incident, that is what juries look for.” Id. But the
prosecution did not need A.W.’s statement to the police to show that her claim of rape
was first made almost immediately after the incident. A.W. testified that as soon as she
left Defendant’s home, she called her sister on her cellphone to say that Defendant had
raped her. She also testified that after her sister picked her up and took her home, she
told her parents she had been raped and her parents called the police. Her sister testified
to the same events. Further, the evidence showed that the police were investigating the
incident within an hour of A.W.’s departure from Defendant’s home, a compelling
indication that rape had been reported to the police. Defendant does not now challenge
police testimony that they were responding to a call from A.W.’s mother.
As for A.W.’s statement to the nurse that she had loudly resisted Defendant,
Defendant’s brief argues that juries look for evidence that the victim resisted. And he
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contends that without the nurse’s testimony, the prosecution would have lacked evidence
regarding A.W.’s resistance, thereby (once again) leaving “a big hole in the prosecution’s
case.” Aplt. Br. at 34. But the statement to the nurse added little. A.W. testified at trial
to her unsuccessful resistance. And insofar as the statement to the nurse would support
an inference that the rape charge was not a later concoction, there was already compelling
evidence from A.W.’s sister and the arrival of the police to show that A.W. had alleged
rape from the outset.
We DENY Defendant’s request for a COA and DISMISS the appeal.
Entered for the Court
Harris L Hartz
Circuit Judge
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