                                                                  FILED
                                                      United States Court of Appeals
                       UNITED STATES COURT OF APPEALS         Tenth Circuit

                             FOR THE TENTH CIRCUIT                         December 28, 2016
                         _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,
                                                              No. 16-1354
v.                                                 (D.C. Nos. 1:13-CV-00715-JAP and
                                                         1:10-CR-00056-JAP-1)
ADAM FROST,                                                     (D. Colo.)

      Defendant - Appellant.
                      _________________________________

             ORDER DENYING CERTIFICATE OF APPEALABILITY
                    _________________________________

Before HARTZ, O’BRIEN, and PHILLIPS, Circuit Judges.
                   _________________________________

       Defendant Adam Frost was convicted by a jury in the United States District Court

for the District of Colorado of raping A.W., a 17-year-old girl. There was no dispute that

Defendant had sex with A.W. at his home in the early morning and that A.W. left the

home immediately thereafter. The issue was consent.

       After we affirmed Defendant’s conviction and 200-month sentence, see United

States v. Frost, 684 F.3d 963 (10th Cir. 2012), he filed an unsuccessful motion under

28 U.S.C. § 2255. He seeks a certificate of appealability (COA) in this court to appeal

the district court’s denial of his motion. See 28 U.S.C. § 2253(c)(1)(B) (requiring COA

to appeal denial of § 2255 motion). We deny a COA and dismiss the appeal.

       In the district court Defendant raised four ineffective-assistance-of-counsel claims:

(1) that trial counsel was ineffective in not allowing him to testify in his own defense; (2)
that trial counsel was ineffective in failing to object to the hearsay testimony of numerous

witnesses; (3) that trial counsel was ineffective in failing to file a timely motion for a

speedy trial; and (4) that appellate counsel was ineffective in failing to argue issues (1)

and (3) on appeal. In this court Defendant pursues only a portion of issue (2). He argues

that trial counsel was ineffective in failing to object to the hearsay testimony of (1) two

police officers regarding A.W.’s description of the incident shortly after she left

Defendant’s house and (2) a nurse practitioner regarding A.W.’s statements about her

loud resistance during the incident.

       A COA will issue “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a

demonstration that . . . includes showing that reasonable jurists could debate whether (or,

for that matter, agree that) the petition should have been resolved in a different manner or

that the issues presented were adequate to deserve encouragement to proceed further.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). In other

words, the applicant must show that the district court’s resolution of the constitutional

claim was either “debatable or wrong.” Id.

       To establish a claim of ineffective assistance of counsel, Defendant first has the

burden of overcoming “a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance,” Strickland v. Washington, 466 U.S. 668,

689 (1984), by demonstrating that his counsel’s performance “fell below an objective

standard of reasonableness,” id. at 688. Second, Defendant must demonstrate “that there

is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

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proceeding would have been different.” Id. at 694. We need not address the first prong

(we can assume, without deciding, that the challenged hearsay was inadmissible and that

the failure to object was not part of a reasoned strategy), because Defendant fails on the

second prong. The district court ruled that Defendant “failed to demonstrate a reasonable

probability that, but for counsel’s error, the result of the proceeding would have been

different,” Order Denying Mot. at 10, Aplt. App., Vol. II at 154, and we agree.

       Defendant’s brief in this court argues that the evidence of what A.W. told the

police was important because without it, there would have been “a big gap in the

prosecution’s case.” Aplt. Br. at 21. He explains, “While there is certainly no

requirement that the prosecution introduce evidence that the alleged victim complained to

the police immediately after the incident, that is what juries look for.” Id. But the

prosecution did not need A.W.’s statement to the police to show that her claim of rape

was first made almost immediately after the incident. A.W. testified that as soon as she

left Defendant’s home, she called her sister on her cellphone to say that Defendant had

raped her. She also testified that after her sister picked her up and took her home, she

told her parents she had been raped and her parents called the police. Her sister testified

to the same events. Further, the evidence showed that the police were investigating the

incident within an hour of A.W.’s departure from Defendant’s home, a compelling

indication that rape had been reported to the police. Defendant does not now challenge

police testimony that they were responding to a call from A.W.’s mother.

       As for A.W.’s statement to the nurse that she had loudly resisted Defendant,

Defendant’s brief argues that juries look for evidence that the victim resisted. And he

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contends that without the nurse’s testimony, the prosecution would have lacked evidence

regarding A.W.’s resistance, thereby (once again) leaving “a big hole in the prosecution’s

case.” Aplt. Br. at 34. But the statement to the nurse added little. A.W. testified at trial

to her unsuccessful resistance. And insofar as the statement to the nurse would support

an inference that the rape charge was not a later concoction, there was already compelling

evidence from A.W.’s sister and the arrival of the police to show that A.W. had alleged

rape from the outset.

       We DENY Defendant’s request for a COA and DISMISS the appeal.

                                              Entered for the Court


                                              Harris L Hartz
                                              Circuit Judge




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