394 F.3d 1302 (10th Cir. 2005), 02-5202, Parker v. Scott

Docket Nº:02-5202.
Citation:394 F.3d 1302
Party Name:Matthew Richard PARKER, Petitioner-Appellant, v. H.N. "Sonny" SCOTT, Respondent-Appellee.
Case Date:January 05, 2005
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1302

394 F.3d 1302 (10th Cir. 2005)

Matthew Richard PARKER, Petitioner-Appellant,

v.

H.N. "Sonny" SCOTT, Respondent-Appellee.

No. 02-5202.

United States Court of Appeals, Tenth Circuit

January 5, 2005

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R. Thomas Seymour (C. Robert Burton with him on the brief), Seymour Law Firm, Tulsa, OK, 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, OK, 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.

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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;

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.

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 both vehemently denied the allegations against Parker.

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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 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, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). "An 'unreasonable application of federal law is different from an incorrect application of federal law,' " Woodford v. Visciotti, 537 U.S. 19, 25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (quoting Williams, 529 U.S. at 410, 120 S.Ct. 1495), 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, 120 S.Ct. 1495). 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, 120 S.Ct. 1495); see 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)

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(noting that habeas petitioner "cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent"); Yancey 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 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...

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