Frost v. Pryor

• Decision Date: 25 April 2014
• Docket Number: No. 13–3086.,13–3086.
• Citation: 749 F.3d 1212
• Parties: Kenneth E. FROST, Petitioner–Appellant, v. Rex PRYOR, Warden, Lansing Correctional Facility; Derek Schmidt, Kansas Attorney General, Respondents–Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

749 F.3d 1212

Kenneth E. FROST, Petitioner–Appellant,

v.Rex PRYOR, Warden, Lansing Correctional Facility; Derek Schmidt, Kansas Attorney General,^* Respondents–Appellees.

No. 13–3086.

United States Court of Appeals, Tenth Circuit.

April 25, 2014.

Jean K. Gilles Phillips, The Paul E. Wilson Project for Innocence and Post Conviction Remedies, University of Kansas School of Law, Lawrence, KS, appearing for Appellant.

Natalie Chalmers, Assistant Solicitor General, Office of the Kansas Attorney General, Topeka, KS, appearing for Appellees.

Before LUCERO, McKAY, and MATHESON, Circuit Judges.

MATHESON, Circuit Judge.

In 2005, a Kansas state court jury convicted Kenneth Frost of aggravated indecent liberties with a child in violation of Kan. Stat. Ann. § 21–3504 (2004). His attorney failed to obtain the child's medical records, which could have been used to impeach the child's mother and challenge the prosecution's corroborative evidence. Mr. Frost moved for a new trial based on ineffective assistance of counsel. After conducting hearings, the state trial court denied the motion and sentenced Mr. Frost to 204 months in prison. The Kansas Court of Appeals (“KCOA”) affirmed. Although it determined that Mr. Frost's trial counsel provided deficient performance by failing to request the child's medical records, the KCOA concluded counsel's performance did not prejudice Mr. Frost. The Kansas Supreme Court denied discretionary review.

Mr. Frost then sought a writ of habeas corpus in federal court under 28 U.S.C. § 2254, arguing (1) his attorney's failure to investigate the child's medical records violated his Sixth Amendment right to effective assistance of counsel and (2) several other claims involving ineffective assistance and prosecutorial misconduct. The federal district court denied relief on the first ineffective assistance claim relating to the child's medical records because of the deference owed to state court decisions on the merits under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). The court dismissed Mr. Frost's remaining claims as procedurally barred. It nonetheless issued Mr. Frost a Certificate of Appealability (“COA”) on “the [sole] issue [of] whether [Mr. Frost's] trial counsel was unconstitutionally ineffective in failing to investigate the child's medical records.” Frost v. McKune, No. 11–3170–SAC, 2013 WL 812153, at *11 (D.Kan. Mar. 5, 2013).

Mr. Frost now appeals, arguing (1) the district court incorrectly denied relief on the merits of his ineffective assistance claim and (2) we should also grant relief on his procedurally barred claims. As to his first issue, we are statutorily bound by AEDPA to ask only if the state court's decision was contrary to, or an unreasonable application of, clearly established Supreme Court law. And the Supreme Court has instructed that unreasonable application occurs only when fairminded jurists could not possibly disagree over the correctness of the state court's decision. Because this standard so severely constrains our review, we affirm the district court's denial of habeas relief on the first issue. As to his second issue, we deny a COA on all remaining claims.

I. BACKGROUND

A. Factual History

In reviewing a § 2254 petition, “[w]e presume that the factual findings of the state court are correct” unless the petitioner presents clear and convincing evidence to the contrary. Fairchild v. Workman, 579 F.3d 1134, 1139 (10th Cir.2009); see also28 U.S.C. § 2254(e)(1). Aside from certain facts that Mr. Frost asserts he was unable to develop due to the ineffective assistance provided by his trial counsel, Mr. Frost does not challenge the state court's determination of the facts in this case. The KCOA described the factual history as follows:

Near the end of 2000 or the beginning of 2001, A.G. (Mother) started dating Frost. Several months later, Mother, her 8–year–old son [ ] (the child), and the child's twin sibling moved into Frost's home.

After moving into the home, the child began soiling himself in his underwear. According to the child, Frost was sexually abusing him and he was “okay” with soiling himself because he wanted Frost to think he was “kind of gross” and to “stay away.” Unaware of the alleged sexual abuse, Mother took the child to several doctors in an attempt to uncover the reason the child was defecating in his clothing.

For reasons unrelated to the issues presented in this case, Mother and the children stopped living with Frost in March or April of 2002. Frost, however, continued to speak with the child and his sibling over the telephone for another 5 or 6 months. According to Mother, Frost's absence coincided with the gradual decrease and eventual cessation of the child's soiling behavior. The child's condition also improved after Dr. David Nichols, the child's primary care physician, prescribed the child medication in December 2002.

On May 7, 2004, Mother took the child to Cindy Coggins, a licensed professional counselor, in order to have him evaluated for possible Attention Deficit Hyperactivity Disorder (ADHD). During this visit, Mother relayed to Coggins her suspicion that the child had been sexually abused. Mother stated the child was withdrawn and had experienced daily bowel problems on and off for the last 3 years, although they had stopped in the 3 weeks prior to the visit. Coggins asked the child during this visit if anyone had hurt him; the child turned to look at his mother but said nothing. Coggins ended the session, advising Mother that if anything had happened to the child, he would disclose it when he was ready.

In the fall of 2004, Frost reportedly attempted to telephone Mother and reinitiate contact with her. When Mother discussed Frost's alleged phone call with her then fiance, the child reportedly overheard the conversation and his soiling behavior resumed. Around that time, the child wrote Mother a letter stating that someone had touched him, specifically mentioning Frost's name.

Mother called Coggins to tell her about the letter and the reoccurrence of the bowel condition. On November 30, 2004, Coggins met with Mother and the child. Mother gave Coggins the letter and, after recording notes about it, Coggins discarded the letter and conducted her second counseling session with the child. During this session, the child reported that Frost had sexually abused him on two separate occasions in two different rooms, describing each incident in detail. As a mandatory reporter, Coggins reported the suspected abuse to authorities.

The State's investigation resulted in a referral to Sunflower House, a child advocacy center. Sarah Byall, a social worker at Sunflower House, conducted a videotaped interview of the child. During the interview, the child made disclosures consistent with his statements to Coggins.

State v. Frost, No. 98,433, 212 P.3d 263, 2009 WL 2371007, at *1 (Kan.Ct.App. July 31, 2009) (unpublished table decision).

B. Procedural History

1. State Proceedings

a. Charging, preliminary hearing, and first trial

On February 23, 2005, Mr. Frost was charged with one count of aggravated indecent liberties with a child in violation of Kan. Stat. Ann. § 21–3504 (2001).¹ The court appointed the public defender's office to provide Mr. Frost with representation. It assigned Philip Crawford to Mr. Frost's case. The Kansas Court of Appeals described the preliminary hearing as follows:

At the preliminary hearing, the child testified about two separate instances of abuse occurring in two separate rooms within the house. Slightly different from his prior statement to Coggins, however, the child further testified that Frost forced him to take off his and Frost's clothing (not that Frost did it himself) and that no abuse occurred in the bathroom.

Mother also testified at the preliminary hearing, stating that during the relevant time period, she sought medical treatment from Dr. Nichols for the child's bowel condition. After hearing Mother testify that the child never had experienced bowel problems before, Frost advised his attorney that Mother told him the child did have soiling issues prior to moving in with Frost in 2001. Frost directed his counsel, Phillip Crawford, to obtain the child's medical records.

State v. Frost, 2009 WL 2371007, at *2.

Contrary to Mr. Frost's wishes, Mr. Crawford did not request the child's medical records. According to Mr. Frost, he also “told [Mr.] Crawford on several occasions that [A.G., the child's mother,] threatened to send him back to prison.” Aplt. Br. at 8. Mr. Frost further asserts that Mr. Crawford's co-counsel, Michelle Durrett, was present during one of these occasions. Id. at 8–9. In addition, Mr. Frost contends that he told Kenneth Lindquist, Mr. Crawford's investigator, about A.G.'s threat. Id. In preparation for Mr. Frost's first trial, Mr. Lindquist prepared subpoenas for several witnesses who could testify about A.G.'s threat to send Mr. Frost “back to prison one way or another.” State v. Frost, 2009 WL 2371007, at *9. The first trial began on September 19, 2005, but the judge declared a mistrial after the state's witness violated a motion in limine prohibiting the introduction of evidence about Mr. Frost's criminal history.

b. Second trial, conviction, and motion for new trial

The second trial began on November 28, 2005. Mr. Crawford did not subpoena any of the witnesses who indicated their willingness to testify about A.G.'s threats. Nor did Mr. Crawford investigate the child's medical records as directed by Mr. Frost. At trial, the child testified that Mr. Frost had sexually abused him on two occasions. When asked about the first instance, the child told the prosecutor that he was playing with his toy cars in his bedroom when Mr. Frost entered the room and

told me to stand up and touched me, my front private part. And then he made me touch him in the same place. Then he made me pull down my pants and he touched me. And then he made me—he made me pull down his and he...