                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           APR 15 1999
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 STEVEN WAYNE FERRELL,

                Petitioner - Appellant,                   No. 98-6298
           v.                                           (W.D. Oklahoma)
 OKLAHOMA DEPARTMENT OF                             (D.C. No. CV-97-672-T)
 CORRECTIONS,

                Respondent - Appellee.


                              ORDER AND JUDGMENT          *




Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.




       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Steven Wayne Ferrell seeks a certificate of appealability which would

enable him to appeal the district court’s order and judgment denying his 28 U.S.C.

§ 2254 petition for a writ of habeas corpus. We deny Ferrell’s request for a

certificate of appealability and dismiss his appeal.



                                 BACKGROUND

      Ferrell was convicted in 1987 of four counts of Rape, four counts of

Forcible Sodomy, and one count of Indecent or Lewd Acts with a Child under

Sixteen, and was sentenced to a term of 99 years’ imprisonment. At his trial, the

first witness was the alleged victim, Ferrell’s daughter, who told the jury that

Ferrell had sexually molested her on numerous occasions. Toward the end of the

presentation of their case, while questioning a social worker who had interviewed

the alleged victim, prosecutors introduced into evidence a videotape of the

interview between the social worker and Ferrell’s daughter. Ferrell’s attorney did

not object to the admission of the videotaped interview. In this interview, the

alleged victim largely repeated the allegations against Ferrell set forth in her live

trial testimony, although Ferrell contends that there are “discrepancies” between

her testimony at trial and her testimony in the interview. Appellant’s Br. at 6-7.




                                          -2-
      The videotape, which was played for the jury in its entirety, was admitted

into evidence pursuant to Okla. Stat. Ann. tit. 22, § 752 (West 1987), which, at

the time of Ferrell’s trial, stated in relevant part as follows:

      B.     The recording of an oral statement of [a child 12 years of age
             or younger who is the victim of a crime] made before the
             proceedings begin is admissible into evidence if:
             1.    The court determines that the time, content and
                   circumstances of the statement provide sufficient indicia
                   of reliability;
             2.    No attorney for any party is present when the statement
                   is made;
             3.    The recording is both visual and aural and is recorded on
                   film or videotape, or by other electronic means;
             4.    The recording equipment is capable of making an
                   accurate recording, the operator of the equipment is
                   competent and the recording is accurate and has not
                   been altered;
             5.    The statement is not made in response to questioning
                   calculated to lead the child to make a particular
                   statement or is clearly shown to be the child’s statement
                   and not made solely as a result of a leading or
                   suggestive question;
             6.    Every voice on the recording is identified;
             7.    The person conducting the interview of the child in the
                   recording is present at the proceeding and is available to
                   testify or be cross-examined by any party;
             8.    Each party to the proceeding is afforded an opportunity
                   to view the recording at least ten (10) days before trial,
                   unless such time is shortened by leave of court for good
                   cause shown; and
             9.    The child either:
                   a.     testifies at the proceedings, or
                   b.     is unavailable as defined in Title 22 as a witness.
                   When the child is unavailable as defined in Title 22 as a
                   witness, such recording may be admitted only if there is
                   corroborating evidence of the act.


                                           -3-
       Ferrell was subsequently convicted by the jury, and his direct appeal of

these convictions was denied by the Oklahoma Court of Criminal Appeals on

April 26, 1989; Ferrell did not petition the Oklahoma Supreme Court for a writ of

certiorari. On direct appeal, he did not claim that his Sixth Amendment rights

were violated by the introduction of the videotape.

       Two years after Ferrell’s direct appeal was denied, the Oklahoma Court of

Criminal Appeals, in an unrelated case, declared that Okla. Stat. Ann. tit. 22,

§ 752 was violative of the Sixth Amendment’s Confrontation Clause and

unconstitutional on its face.   Burke v. State , 820 P.2d 1344, 1348 (Okla. Crim.

App. 1991). The Oklahoma Legislature subsequently repealed the statute. Okla.

Laws 1993, ch. 197, § 4 .

       After Burke was handed down, Ferrell initiated state post-conviction

proceedings, arguing for the first time that his Sixth Amendment rights were

infringed by the admission of the videotape. In his papers supporting his petition

for state post-conviction relief, Ferrell acknowledged that he had not raised the

issue on direct appeal, and that ordinarily this would bar him from raising the

issue in a collateral attack on his conviction. However, he argued that   Burke was

a “subsequent change in [the] law” which fit within the “new law” exception to

the procedural bar rules. Appellant’s App. at 51-52.




                                            -4-
       The state district court denied his application on December 9, 1993, and the

Oklahoma Court of Criminal Appeals affirmed the state district court’s decision

on September 15, 1995.     Ferrell v. State , 902 P.2d 1113 (Okla. Crim. App. 1995).

The state appellate court agreed with Ferrell that the rule announced in   Burke

amounted to a “change in the law,” and ruled that Ferrell was not procedurally

barred from raising the issue.   Id. at 1114. However, the court ruled that, under

the doctrine of Teague v. Lane , 489 U.S. 288 (1989), Burke “announced a new

rule” and was therefore only to be applied prospectively to post-conviction

appeals. Ferrell , 902 P.2d at 1114-15.

       Ferrell, who has been represented by counsel at every stage of his judicial

proceedings, then filed a petition seeking a writ of habeas corpus in federal

district court. His petition alleged two grounds for relief: that the introduction of

the videotape violated his Sixth Amendment right to confront and cross-examine

his accusers, and that, because the alleged victim also testified in person at trial,

the introduction of the videotape was prejudicial and cumulative.

       The district court assigned Ferrell’s case to a magistrate judge, who issued

a report recommending that the district court deny Ferrell’s petition. The district

court adopted the magistrate judge’s disposition of the case, reasoning that the

rule announced in Burke was a new rule not dictated by precedent at the time

Ferrell’s conviction became final, and therefore would not be applied


                                            -5-
retroactively in Ferrell’s post-conviction appeal. The district court also held that

Ferrell’s case did not fit within either of the exceptions to the nonretroactivity

principles of Teague . Finally, the district court held that, even if the rule

announced in Burke were not new, any error in Ferrell’s trial was harmless in any

event.

         Ferrell now appeals the decision of the district court, arguing only that the

rule announced in Burke was dictated by existing precedent and thus is applicable

to his post-conviction appeal, and that the error which allegedly infected his trial

was not harmless.



                                     DISCUSSION

         To receive federal habeas relief from a disposition of a claim on a question

of law adjudicated by a state court, a petitioner must demonstrate that the state

adjudication “resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Here, Ferrell

argues that his state trial was tainted by the admission of videotaped evidence in

violation of his Sixth Amendment right to confront and cross-examine his

accusers. At the time of his state trial, however, the Oklahoma state statute,

§ 752, allowed the admission of such videotaped evidence, and, as petitioner


                                            -6-
admits, there was no case (until 1991) directly declaring that the admission of

evidence under statutes like § 752 violated constitutional standards. Appellant’s

App. at 109.

      Ferrell also concedes, as he must, that habeas petitioners may not take

advantage of “new rules” handed down after their convictions become final.

Teague , 489 U.S. at 310 (plurality opinion). However, Ferrell argues that this

statute was so far afield that a state court considering the issue at the time his

conviction became final would have been compelled by existing Supreme Court

precedent to hold that the admission of evidence under the statute was

unconstitutional and to hold that his trial was fatally infected with Sixth

Amendment violations.

      We must determine, then, whether the rule petitioner seeks to have applied

in his post-conviction appeal—that the videotape testimony was admitted at his

trial, notwithstanding § 752, in violation of his Sixth Amendment rights—was

dictated by existing precedent at the time his conviction became final. In making

this determination, we employ a three-step analysis.    See Caspari v. Bohlen , 510

U.S. 383, 390 (1994). First, we “must ascertain the date on which the defendant’s

conviction and sentence became final,” because “the nonretroactivity principle

prevents a federal court from granting habeas corpus relief to a state prisoner

based on a rule announced after his conviction and sentence became final.”       Id. at


                                            -7-
389, 390 (emphasis omitted). Second, we must “survey the legal landscape as it

then existed, and determine whether a state court considering the defendant’s

claim at the time his conviction became final would have felt compelled by

existing precedent to conclude that the rule he seeks was required by the

Constitution.”   Id. at 390 (citations, internal quotation marks, and alterations

omitted). Finally, even if we consider the rule Ferrell suggests, and announced in

Burke , to be a new rule not dictated by existing precedent, we must then “decide

whether that rule falls within one of the two narrow exceptions to the

nonretroactivity principle.”   Id.

        The first step is not difficult. Ferrell’s direct appeal was denied on

April 26, 1989. Allowing a 90-day period for Ferrell to petition a higher court for

certiorari, it is evident that his conviction and sentence were final on July 25,

1989.

        The second step, by contrast, involves a detailed inquiry into the state of

the law as it existed in July 1989. We must decide whether precedent in effect at

that time would have compelled a state court to reach the same result as the     Burke

court reached. We conclude that such a result would not necessarily have been

compelled or dictated by existing precedent.     1




       Both the Oklahoma Court of Criminal Appeals and the federal district
        1

court below gave great weight to the Oklahoma statute, intimating that because
                                                                    (continued...)

                                           -8-
       As we understand it, the Confrontation Clause rule Ferrell urges on us here,

and discussed in Burke , is that contemporaneous cross-examination is required

during all videotaped interviews introduced at trial, even where the declarant is

available for after-the-fact cross-examination regarding that statement at trial.    2




       1
        (...continued)
Burke declared a statute unconstitutional, it ipso facto must have announced a
new rule. See Ferrell, 902 P.2d at 1114 (stating that “Burke . . . broke new
ground by imposing an obligation on prosecutors not to admit evidence under
[§ 752]”); R. Doc. 11, at 4-5 (district court order stating that § 752 “constituted a
presumptively valid exercise of legislative power”). Granting undue deference to
a statute oversimplifies the Teague inquiry. A case that, for instance, struck down
a state statute that eliminated the right to counsel for criminal defendants would
not be announcing a new rule, even though it would be declaring unconstitutional
a “presumptively valid exercise of legislative power.” The outcome of such a
case would indeed be dictated by existing precedent, namely Gideon v.
Wainwright, 372 U.S. 335 (1963).
       2
        In his appellate brief, Ferrell does not articulate with a great deal of
certainty the exact parameters of the rule he urges be applied to his case. He
states only that “[e]xisting precedent dictated the conclusion that videotapes were
not admissible.” Appellant’s Br. at 4. This cannot be so, because the Supreme
Court held in 1990, based on precedent in place in 1989, that one-way closed
circuit testimony by sexual abuse victims did not violate the Confrontation
Clause. Maryland v. Craig , 497 U.S. 836 (1990). Indeed, the Court in       Craig
noted that, at the time, 37 states “permit[ted] the use of videotaped testimony of
sexually abused children.”    Id. at 853 & n.2 (citing state statutes). Thus, any
argument that 1989 precedent dictated the result that videotape evidence was
categorically not admissible is without merit.

       Likewise, we do not consider Ferrell to be arguing for the wholesale
application, to his case, of the reasoning set forth in the     Burke case. Much of that
opinion’s reasoning was devoted to a discussion of the unconstitutionality of
admitting evidence pursuant to § 752’s unavailability prong. In Ferrell’s trial, the
alleged victim was available to testify at trial, and indeed did testify at trial.
Thus, any application to this federal habeas case of        Burke ’s reasoning regarding
                                                                             (continued...)

                                             -9-
See Burke , 820 P.2d at 1348 (stating that “[i]t would be far easier to elicit

favorable testimony from a child with only a detective, social worker or other type

of skilled questioner propounding questions without any confrontation or cross-

examination” and that “[w]e should not allow the State to present a tape made

with one-sided questions, by an expert questioner, who could coach, lead and gain

the required result . . . ”).

       While Ferrell’s suggested rule has some support in precedent in existence

in 1989, we cannot conclude that it was “    dictated by [such] precedent.”    Teague ,

489 U.S. at 301 (plurality opinion). Announcements of “gradual developments in

the law over which reasonable jurists may disagree” constitute new rules under

Teague . Sawyer v. Smith , 497 U.S. 227, 234 (1990). Certainly, there was

support in pre-1989 Supreme Court precedent for the conclusion, adopted by

Burke and urged on us here, that contemporaneous cross-examination is required

even when the declarant is available.     See , e.g. , People v. Bastien , 541 N.E.2d

670, 676 (Ill. 1989) (citing    California v. Green , 399 U.S. 149 (1970)). However,




       (...continued)
       2

§ 752’s unavailability prong would be meaningless.

      Thus, we construe Ferrell’s brief as urging the application of the rule that
even where the declarant is available to testify at trial and be cross-examined
regarding the out-of-court interview, the admission of the interview violates the
Confrontation Clause unless the defendant had opportunity to contemporaneously
cross-examine the declarant at the interview.

                                            -10-
other courts have cited the same pre-1989 case in support of the opposite

proposition. See , e.g. , Carson v. Collins , 993 F.2d 461, 464 (5th Cir. 1993)

(citing Green and another pre-1989 Supreme Court case, and stating that “[t]he

Supreme Court has noted that introduction of out-of-court statements, even if

unreliable, does not violate the confrontation clause where the declarant testifies

at trial subject to full and effective cross-examination”). Indeed, the very fact

that there is a bona fide debate on the matter, and that both sides of the debate

cite the same pre-1989 case in support of their respective positions, points to the

conclusion that deciding the issue as   Burke did would involve the announcement

of a new rule for Teague purposes.

       Thus, we conclude that if a court faced with this issue in 1989 had decided,

like the Oklahoma Court of Criminal Appeals did in      Burke , that the Confrontation

Clause requires contemporaneous cross-examination during videotaped out-of-

court statements introduced at trial, even when the declarant was available at trial

for cross-examination regarding the statements, that court would have been

announcing a new rule not     dictated by existing precedent. Under   Teague , new

rules are not applicable to post-conviction appeals unless one of the two

exceptions set forth in that case applies. In this case, Ferrell does not argue on

appeal that either of the   Teague exceptions applies. Therefore, Ferrell may not

avail himself of the rule handed down in    Burke .


                                           -11-
       In any event, we agree with the district court that, even if Ferrell’s

argument that constitutional error occurred in this case was not barred by      Teague ,

any error which occurred at his trial was harmless. Confrontation Clause

violations are “subject to harmless error analysis” on habeas,       Crespin v. New

Mexico , 144 F.3d 641, 649 (10th Cir.),      cert. denied , 119 S. Ct. 378 (1998), and

such errors are harmless unless the error “had substantial and injurious effect or

influence in determining the jury’s verdict,”       Brecht v. Abrahamson , 507 U.S. 619,

637 (1993) (citation omitted). To obtain habeas relief, the petitioner must show

that the error “resulted in actual prejudice.”      Id. (citation omitted).

       As the magistrate judge correctly pointed out in his report and

recommendation, R. Doc. 9 at 6-8, Ferrell cannot make this showing. In addition

to the alleged victim’s detailed testimony that Ferrell had sexually assaulted her

on several occasions, and evidence that the alleged victim had indeed been at the

locations where she claimed the assaults occurred, there was clear physical

evidence of sexual abuse in this case. In light of the corroborating evidence

detailed by the magistrate judge, we are unable to conclude that Ferrell was

“actual[ly] prejudiced” by the introduction of a videotaped interview to which he

did not even object.




                                             -12-
     Accordingly, we DENY Ferrell’s request for a certificate of appealability

and DISMISS his appeal.

                                             ENTERED FOR THE COURT



                                             Stephen H. Anderson
                                             Circuit Judge




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