Richmond v. Embry

• Decision Date: 11 August 1997
• Docket Number: No. 96-1380,96-1380
• Citation: 122 F.3d 866
• Parties: Billie Leon RICHMOND, Petitioner-Appellee, v. Larry EMBRY, Superintendent/Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 866

122 F.3d 866

Billie Leon RICHMOND, Petitioner-Appellee, v. Larry EMBRY, Superintendent/Warden, Respondent-Appellant.

No. 96-1380.

United States Court of Appeals,

Tenth Circuit.

Aug. 11, 1997.

Patrick D. Butler of Lamm, Freeman & Butler, LLC, Boulder, CO, for Petitioner-Appellee.

Clemmie P. Engle, Senior Assistant Attorney General (Gale Norton, Attorney General, with her on the briefs), Denver, CO, for Respondent-Appellant.

Before BRORBY, LOGAN and HENRY, Circuit Judges.

BRORBY, Circuit Judge.

The United States District Court for the District of Colorado granted Mr. Richmond's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and reverse.

I.

In 1992, following a jury trial in Boulder, Colorado, Mr. Richmond was convicted of two counts of sexual assault on a child by one in a position of trust and was sentenced to two consecutive sixteen-year terms of imprisonment. During trial, the twelve-year-old victim testified Mr. Richmond had engaged in sexual intercourse with her on several occasions. This testimony was corroborated by evidence of her consistent out-of-court statements. The victim's testimony was also supplemented by medical evidence the victim had "multiple healed lacerations ... in the hymen" consistent with sexual intercourse.

During the defense's case, the defense attempted to introduce testimony from the victim's mother that she found condoms in the victim's dresser and that she had concerns regarding a neighborhood boy who would visit the victim. The mother had repeatedly asked the boy to leave and had found him in the victim's bedroom. Under Colorado's rape shield statute, evidence of "specific instances of the victim's prior or subsequent sexual conduct, opinion evidence of the victim's sexual conduct, and reputation evidence of the victim's sexual conduct" is presumed irrelevant. Colo.Rev.Stat. § 18-3-407(1) (1986 & Supp.1996). However, excepted from the presumption of irrelevance is evidence of the victim's sexual conduct with the actor, or "[e]vidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or any similar evidence of sexual intercourse offered for the purpose of showing that the act or acts charged were or were not committed by the defendant." Colo.Rev.Stat. § 18-3-407(1)(b). Unless the proffered evidence falls into one of the exceptions, a party must adhere to certain procedures in order to overcome the presumption of irrelevance. ¹

The parties do not dispute the defense failed to adhere to these procedures before its attempt to admit the testimony. Rather, Mr. Richmond attempted to introduce the testimony during the trial without following the prescribed procedures. After considering the proffered evidence, the trial court determined that under the statute, the mother's testimony was presumptively irrelevant and, was, therefore, inadmissible under Colorado's rape shield statute. Colo.Rev.Stat. § 18-3-407.

On direct appeal, Mr. Richmond argued the trial court improperly excluded the evidence; the Colorado Court of Appeals affirmed the conviction rejecting Mr. Richmond's claim the proffered evidence was excepted from the rape shield's presumption of irrelevance and its notice and hearing requirements. People v. Richmond, No. 92CA1918 (Colo.Ct.App. Nov. 18, 1993) (unpublished), cert. denied, No. 94SC43 (Colo.1994). Specifically, the Colorado Court of Appeals held the trial court properly found the proffered evidence was not a specific instance of the victim's prior sexual conduct tending to show the acts charged were not committed by defendant. Id. Therefore, the court held, the proffered evidence was "irrelevant and inadmissible." Id.

In his habeas petition filed in the district court, Mr. Richmond argued the trial court's exclusion of the proffered evidence violated his following rights: his right to compulsory process and a fair trial under the Sixth Amendment of the federal Constitution and Article II of the Colorado Constitution; and his right to equal protection and due process under the federal Constitution's Fourteenth Amendment, and Article II of the Colorado constitution. ²

The magistrate judge recommended the district court grant the petition. Specifically, the magistrate judge concluded the trial court's exclusion of evidence violated Mr. Richmond's Sixth Amendment right to confrontation. The magistrate judge reasoned because the excluded evidence was offered to rebut the medical testimony, and the inferences flowing from that testimony--that the defendant was the only one who could have caused the victim's hymen lacerations--the evidence the mother found condoms and had difficulty keeping her daughter away from a boy was "highly relevant" and material to Mr. Richmond's defense such that its exclusion violated Mr. Richmond's rights under the Sixth Amendment's Confrontation Clause.

After reviewing the magistrate judge's recommendations de novo, the United States District Court for the District of Colorado found "[t]hrough misapplication of Colorado's Rape Shield Statute, petitioner was denied his Sixth Amendment right to confrontation through the exclusion of proffered relevant evidence," and granted Mr. Richmond's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

II. Standard of Review

In reviewing the district court's grant of Mr. Richmond's habeas petition, we accept the district court's factual findings unless they are clearly erroneous, and we review the court's legal conclusions de novo. Houchin v. Zavaras, 107 F.3d 1465, 1469 (10th Cir.1997).

The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), amended the standards for reviewing state court judgments in habeas proceedings by increasing the deference federal courts are to give to state court factual findings and legal determinations. ³ 28 U.S.C. § 2254(d); Houchin, 107 F.3d at 1470. The government urges us to apply the amended version of 28 U.S.C. § 2254(d) to Mr. Richmond's petition even though it was filed prior to the amendment's effective date. Prior to the amendment, federal courts disregarded the state courts' legal conclusions and reached independent judgments on issues presented to them. Lindh v. Murphy, 96 F.3d 856, 861 (7th Cir.1996) (en banc), cert. granted, --- U.S. ----, 117 S.Ct. 726, 136 L.Ed.2d 643 (1997) & judgment rev'd on other grounds, --- U.S. ----, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). In Lindh v. Murphy, --- U.S. ----, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), the Supreme Court held Congress did not intend the new, more discretionary standards as reflected in the amended 28 U.S.C. § 2254(d) to apply to petitions filed prior to the amendment's effective date, id. at 866; consequently, we apply the pre-amended version of 28 U.S.C. § 2254 to Mr. Richmond's petition.

III. State Claims

Mr. Richmond challenges his convictions based on the Colorado constitution, and in granting Mr. Richmond's petition, the district court relied, in part, on the trial court's "misapplication" of Colorado's rape shield statute. However, relief under 28 U.S.C. § 2254 does not lie for errors of state law. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 479-80, 116 L.Ed.2d 385 (1991); Matthews v. Price, 83 F.3d 328, 330 (10th Cir.1996). "[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle, 502 U.S. at 67-68, 112 S.Ct. at 480. Therefore, we do not consider Mr. Richmond's claims based on violations of state law.

IV. Constitutional Rights at Issue

Mr. Richmond challenges the trial court's exclusion of the mother's testimony the victim owned condoms and had a frequent male visitor. Both the magistrate judge and the district court characterized the violation as one under the Confrontation Clause of the Sixth Amendment.

The Confrontation Clause of the Sixth Amendment guarantees the right of an accused in a criminal prosecution to confront the witnesses against him or her; the " 'main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.' " Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986) (quoting Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974)). As we have held, a " 'defendant's right to confrontation may be violated if the trial court precludes an entire relevant area of cross-examination.' " United States v. Begay, 937 F.2d 515, 520 (10th Cir.1991) (quoting United States v. Lonedog, 929 F.2d 568, 570 (10th Cir.), cert. denied, 502 U.S. 854, 112 S.Ct. 164, 116 L.Ed.2d 129 (1991)).

However, as the record reveals, Mr. Richmond did not attempt to cross-examine any prosecution witness, including the victim, about the victim's condoms or her male visitor. Further, the defense did not attempt to cross-examine the victim as to whether she was sexually active, nor did the defense attempt to cross-examine the medical witnesses as to whether the hymenal damage could have resulted from sexual intercourse with someone besides Mr. Richmond. Instead, during the defense's case-in-chief, Mr. Richmond attempted to introduce testimony regarding the condom and the visitor through his own witness. Therefore, the trial court could not possibly have precluded an "entire area of cross-examination."

Mr. Richmond's claim here is not that he was denied his constitutional right of confrontation, but rather that he was denied the right to present defense-witness testimony. As explained below, this is a right arising not under the Sixth Amendment's Confrontation Clause but is instead one arising under the Fifth and Fourteenth Amendment right to due process and the Sixth Amendment...