Bullock v. Carver, No. 00-4023.

CourtU.S. Court of Appeals — Tenth Circuit
Writing for the CourtEbel
Citation297 F.3d 1036
PartiesArden Brett BULLOCK, Petitioner-Appellant, v. Scott CARVER, Warden, Utah State Prison, Respondent-Appellee.
Decision Date23 July 2002
Docket NumberNo. 00-4023.
297 F.3d 1036
Arden Brett BULLOCK, Petitioner-Appellant,
v.
Scott CARVER, Warden, Utah State Prison, Respondent-Appellee.
No. 00-4023.
United States Court of Appeals, Tenth Circuit.
July 23, 2002.

Page 1037

COPYRIGHT MATERIAL OMITTED

Page 1038

COPYRIGHT MATERIAL OMITTED

Page 1039

COPYRIGHT MATERIAL OMITTED

Page 1040

Submitted on the briefs:*

Craig S. Cook, Attorney, Salt Lake City, UT, for Petitioner-Appellant.

Thomas B. Brunker, Assistant Attorney General and Jan Graham, Utah Attorney General, Salt Lake City, UT, for Respondent-Appellee.

Before EBEL, ANDERSON, and KELLY, Circuit Judges.

EBEL, Circuit Judge.


In December 1986, a Utah jury convicted petitioner-appellant Arden Brett Bullock of three counts of aggravated sexual abuse of a child and three counts of sodomy upon a child. The state trial court subsequently sentenced him to a minimum mandatory prison term of fifteen years to life on each sodomy count and nine years to life on each sexual abuse conviction, with the sentences to run concurrently. The Utah Supreme Court upheld Mr. Bullock's conviction by a three-to-two vote in 1989, see State v. Bullock, 791 P.2d 155 (Utah 1989), and the United States Supreme Court denied Mr. Bullock's petition for certiorari in 1990. See Bullock v. Utah, 497 U.S. 1024, 110 S.Ct. 3270, 111 L.Ed.2d 780 (1990). Two years after the Supreme Court rejected Mr. Bullock's appeal, Mr. Bullock filed, pursuant to 28 U.S.C. § 2254, a petition for writ of habeas corpus with the United States District Court for the District of Utah alleging that during his trial he received ineffective assistance of counsel and that his rights under the Due Process Clause and Confrontation Clause had been violated.

Over several months in 1996, the magistrate judge held a four-day evidentiary hearing on Mr. Bullock's ineffective assistance of counsel claim. Three years later, the magistrate judge issued a 105-page

Page 1041

report and recommendation rejecting all three claims for relief. Despite numerous objections from Mr. Bullock, the district court adopted the report and recommendation, denied Mr. Bullock habeas relief, and rejected Mr. Bullock's subsequent motion for a certificate of probable cause to appeal his habeas petition to this court.

This appeal followed. We now grant a certificate of appealability for each of the issues Mr. Bullock raises on appeal and affirm the denial of habeas relief. In reaching this conclusion, we reemphasize that the ultimate inquiry when deciding whether an attorney performed in a constitutionally deficient manner is not whether the counsel's actions can be considered strategic, but whether, under all the circumstances, counsel's actions may be considered objectively reasonable.

I. Background

The facts of this case have been fully described by the Utah Supreme Court, the magistrate judge's report and recommendation, and the parties' briefs on appeal. Therefore, we provide only a brief summary of the underlying events.

In 1985, one of Mr. Bullock's former neighbors in Bountiful, Utah, took her four-year old son to see Dr. Barbara Snow, then clinical director of the Intermountain Sexual Abuse Treatment Center (ISAT), because of inappropriate sexual remarks he had made to two fellow four-year-olds. Mariam Smith, also a former neighbor of Mr. Bullock's and then ISAT's overall director, referred the boy to Dr. Snow, a "child therapist with a Ph.D. in social work, who worked with child victims of sexual abuse." During his second meeting with Dr. Snow, the boy alleged that he had been sexually assaulted by two eight-year-old boys from the neighborhood, one of whom was Mr. Bullock's son. Eventually, Dr. Snow interviewed the eight-year-old boys, and one alleged that Mr. Bullock had sexually molested him and several other neighborhood children, including Mr. Bullock's eight-year-old son and twelve-year-old daughter. As word of the alleged abuse spread throughout the neighborhood, other boys were brought to see Dr. Snow, who, with only a few exceptions discussed below, did not record her interviews with the children or otherwise document what occurred during the interview sessions, despite requests from a local police detective and a child psychologist that she do so. During their initial interviews with Dr. Snow, several of the boys denied that they had been abused by Mr. Bullock. Eventually, however, four boys alleged that Mr. Bullock had engaged in criminal sexual acts with them two years earlier, when the boys were six or seven years old. The boys also told Dr. Snow that Mr. Bullock had threatened to harm them, their families, and their pets.

Although Dr. Snow documented few of her interviews,1 she did conduct two interviews in the presence of state officials. In October 1985, Dr. Snow interviewed one of the boys at the Salt Lake County District Attorney's Office. Approximately two months later, on December 13, 1985, Dr. Snow met with three of the boys, the three boys' parents, a Bountiful police detective, and two county attorneys from the Salt Lake County Attorney's Office. During this meeting, Dr. Snow interviewed "the boys one at a time in front of each other and the other people present." Two of the children described incidences of abuse that corresponded with what they had previously told Dr. Snow, but one boy, who had been pressured by his father to report the incident, denied that he had been abused.

Page 1042

Eventually, all four boys were referred to Dr. Ann Tyler, "a psychologist and Executive Director of the Family Support Center, an agency dedicated to the prevention and treatment of child abuse and neglect," who performed "corroborative assessments" that were designed "to collect sufficient data [so that she could give] an opinion as to whether the boys had been abused." One of the boys initially told Dr. Tyler that he felt pressured to accuse Mr. Bullock of abuse, informing Dr. Tyler that he accused Mr. Bullock to appease his father, that he could not recall the alleged abuse, and that Dr. Snow had told him he had been abused. Nevertheless, Dr. Tyler, who, unlike Dr. Snow, recorded her interviews, concluded that, in all likelihood, all four boys had been abused.

Utah subsequently charged Mr. Bullock with abusing the boys. A jury tried Mr. Bullock in December 1986, and two attorneys represented Mr. Bullock throughout the proceedings. During the trial, Dr. Snow and Dr. Tyler described their interviews with the boys and recounted the boys' statements indicating that they have been sexually molested by Mr. Bullock. In addition, Dr. Tyler opined that the boys had been sexually abused. The four boys all testified via videotaped deposition that they had been molested by Mr. Bullock. Several of the boys' parents described behavioral changes in their children after the alleged abuse occurred but before the meetings with Dr. Snow.

The defense responded to the prosecution's case by arguing that Dr. Snow planted the allegation of abuse by Mr. Bullock in the boys' minds. In making their case, Mr. Bullock's defense attorneys relied, in part, on Dr. Snow's own statements during trial. Dr. Snow testified, for example, that she was "very aggressive in [her] questioning of children," that she was "relatively indifferent to what [would] happen to the [alleged] perpetrator," that she did not approach interview sessions "with an open mind" but as an "ally for the child," and that she did not see herself as a fact collector like the police. Dr. Snow also testified extensively about her interview techniques, and she acknowledged that she did not record her interviews with the children, take notes during the interviews, or write reports following the interviews. Indeed, Dr. Snow admitted that her "own integrity" was the only way of verifying what had occurred during the interview sessions. Similarly, the defense team emphasized contradictions and inconsistencies in the boys' testimony, including the fact that one of the boys had retracted an allegation of abuse as being untrue.

The defense attorneys also called three expert psychologists who severely criticized Dr. Snow's interviewing techniques and asserted that her methods had irreparably tainted not only the boys' testimony, but their actual recollections of events. In addition, the defense experts challenged Dr. Tyler's conclusion that the boys had been abused, arguing that the boys had already been contaminated by Dr. Snow by the time Dr. Tyler evaluated them.

Mr. Bullock also took the stand in his own defense, denying any improper behavior toward the boys or any other child. Similarly, his daughter testified and denied that she had been involved in any sexual activity with her father or with any of the boys, as the boys had alleged. She also described her interview with Dr. Snow wherein Dr. Snow attempted to coerce her to admit that she had been sexually abused.

Ultimately, the jury convicted Mr. Bullock of three counts of aggravated sexual assault and three counts of sodomy upon a child, but acquitted him on one charge of aggravated sexual assault and two counts of sodomy upon a child.

Page 1043

II. Jurisdiction and standard of review

The district court had jurisdiction over Mr. Bullock's habeas petition under 28 U.S.C. § 2254. Because Mr. Bullock appealed the denial of his habeas petition after the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) became effective, we may only address issues for which a certificate of appealability has been granted. See id. § 2253(c)(1); Slack v. McDaniel, 529 U.S. 473, 481-82, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Moore v. Marr, 254 F.3d 1235, 1238 (10th Cir.), cert. denied, ___ U.S. ___, 122 S.Ct. 670, 151 L.Ed.2d 584 (2001). The district court declined to grant a COA on any of the issues raised in this appeal. Nonetheless, we may grant a COA and consider the underlying merits of the appeal, if Mr. Bullock "demonstrate[s] that reasonable jurists would find the district court's assessment...

To continue reading

Request your trial
290 practice notes
  • Jackson v. U.S., No. Civ. 1:04CV251.
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • June 19, 2009
    ...of objective reasonableness and presume that the attorney's decision is nearly unchallengeable.'") (quoting Bullock v. Carver, 297 F.3d 1036, 1047 (10th Cir.2002)); Provenzano, 148 F.3d at Belser has now averred that the decision not to offer expert testimony about the Petitioner's mental h......
  • Engelhardt v. Heimgartner, No. 11-3179-SAC
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • January 31, 2014
    ...where the challenged evidence is a prior bad act. Smallwood v. Gibson, 191 F.3d 1257, 1277 (10th Cir. 1999). See Bullock v. Carver, 297 F.3d 1036, 1055 (10th Cir.), cert. denied, 537 U.S. 1093 (2002). Petitioner thus bears the burden to show that the admission of the challenged evidencePage......
  • Trevino v. Evans, No. 94CV1913 IEG (RBB).
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • September 18, 2007
    ...applies this highly deferential standard Only in cases where counsel's strategic decision was "adequately informed," Bullock v. Carver, 297 F.3d 1036, 1047 (10th Cir. 2002), and petitioner argues such a standard does not apply to counsel's uninformed decision to oppose the accomplice instru......
  • United States v. Abney, No. 14–3074.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 5, 2016
    ...U.S. ––––, 136 S.Ct. 2, 4–5, ––– L.Ed.2d –––– (2015) ; cf. Brown v. United States, 311 F.3d 875, 878 (8th Cir.2002) ; Bullock v. Carver, 297 F.3d 1036, 1052 (10th Cir.2002). Instead, due diligence required that counsel press available, reasonably likely interpretations of the FSA in seeking......
  • Request a trial to view additional results
294 cases
  • Jackson v. U.S., No. Civ. 1:04CV251.
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • June 19, 2009
    ...of objective reasonableness and presume that the attorney's decision is nearly unchallengeable.'") (quoting Bullock v. Carver, 297 F.3d 1036, 1047 (10th Cir.2002)); Provenzano, 148 F.3d at Belser has now averred that the decision not to offer expert testimony about the Petitioner's mental h......
  • Engelhardt v. Heimgartner, No. 11-3179-SAC
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • January 31, 2014
    ...where the challenged evidence is a prior bad act. Smallwood v. Gibson, 191 F.3d 1257, 1277 (10th Cir. 1999). See Bullock v. Carver, 297 F.3d 1036, 1055 (10th Cir.), cert. denied, 537 U.S. 1093 (2002). Petitioner thus bears the burden to show that the admission of the challenged evidencePage......
  • Trevino v. Evans, No. 94CV1913 IEG (RBB).
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • September 18, 2007
    ...applies this highly deferential standard Only in cases where counsel's strategic decision was "adequately informed," Bullock v. Carver, 297 F.3d 1036, 1047 (10th Cir. 2002), and petitioner argues such a standard does not apply to counsel's uninformed decision to oppose the accomplice instru......
  • United States v. Abney, No. 14–3074.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 5, 2016
    ...U.S. ––––, 136 S.Ct. 2, 4–5, ––– L.Ed.2d –––– (2015) ; cf. Brown v. United States, 311 F.3d 875, 878 (8th Cir.2002) ; Bullock v. Carver, 297 F.3d 1036, 1052 (10th Cir.2002). Instead, due diligence required that counsel press available, reasonably likely interpretations of the FSA in seeking......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT