                                                                              F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                               FEB 17 2005
                                  TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 ARTHUR ALLEN POUNCIL, JR.,

               Petitioner-Appellant,                       No. 04-3359
          v.                                            District of Kansas
 MICHAEL A. NELSON; ATTORNEY                      (D.C. No. 01-CV-3143-SAC)
 GENERAL OF KANSAS,

               Respondents-Appellees.


                                       ORDER *


Before EBEL, MURPHY, and McCONNELL , Circuit Judge.



      Arthur A. Pouncil, Jr., a state prisoner proceeding pro se, seeks a certificate

of appealability (COA) that would allow him to appeal from the district court’s

order which denied his habeas corpus petition under 28 U.S.C. § 2254.          See 28

U.S.C. § 2253(c)(1)(A). Because we conclude that Mr. Pouncil has failed to

make “a substantial showing of the denial of a constitutional right,” we deny his

request for a COA and dismiss this appeal. 28 U.S.C. § 2253(c)(2).




      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
                                        I.

                           A. Procedural Background

      In December 1995, Mr. Pouncil was charged in the District Court of

Sedgwick County, Kansas, with two counts of rape involving a child under the

age of fourteen, in violation of K.S.A. § 21-3502(a)(2). In May 1996, a jury

convicted Mr. Pouncil on both counts. The court sentenced him to a term of 515

months imprisonment. The Kansas Court of Appeals affirmed the convictions in

August 1998.   State v. Pouncil , 963 P.2d 446 (Kan. Ct. App. 1998) (unpublished

order). The Kansas Supreme Court denied Mr. Pouncil’s petition for review on

November 11, 1998. In January 1999, Mr Pouncil filed for post-conviction relief

pursuant to K.S.A. § 60-1507 in the District Court of Sedgwick County. The

court summarily denied relief in April 1999, and Mr. Pouncil appealed. On July

14, 2000 the Kansas Court of Appeals affirmed the denial of Mr. Pouncil’s K.S.A.

§ 60-1507 motion.   Pouncil v. State , 4 P.3d 1191 (Kan. Ct. App. 2000)

(unpublished order). Mr. Pouncil, due to an oversight by his counsel, was two

days late in filing his petition for review before the Kansas Supreme Court. The

Kansas Supreme Court denied Mr. Pouncil’s motion to file his petition for review

out of time.

      Mr. Pouncil commenced this federal habeas action asserting eight claims

for relief on April 16, 2001. After an initial review of Mr. Pouncil’s habeas


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petition the district court concluded that three of his claims were procedurally

barred. The district court issued an order to show cause that Mr. Pouncil could

circumvent the procedural bar to these claims. In a later order, the court

dismissed the three claims and directed the State to respond to the five surviving

claims. On September 23, 2004 the district court issued an order denying Mr.

Pouncil a COA.

                              B. Factual Background

      Mr. Pouncil was convicted of raping two girls, D.S., aged 6, and A.S., aged

4. The children, who lived in Texas with their father, were in Wichita during the

summer of 1995, visiting their mother. Their mother would take the children to

their great aunt’s house while she was at work. While at their aunt’s house, the

girls’ cousin and her common law husband, Mr. Pouncil, watched the children.

After the girls returned to Texas they exhibited behavioral changes and eventually

told their stepmother that Mr. Pouncil had raped them.

      D.S. testified at trial that Mr. Pouncil touched her private parts and put his

“thing” in her. Order, R. Doc. 18, at 2. D.S. also testified that she observed Mr.

Pouncil committing the same acts to her sister, A.S. A.S. testified to the same

events. The prosecution also called Leslie Smith Wagner, a physician’s assistant

in Texas, to testify about her examination of both girls. Ms. Wagner testified that

both girls displayed injuries and irregularities in their genital areas. Ms. Wagner


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testified that, in her opinion, both girls had been vaginally penetrated. Despite

Mr. Pouncil’s testimony that the events described by the children did not occur,

the jury found him guilty on both counts.

                                            II.

       On appeal, Mr. Pouncil reasserts the eight issues he raised in his initial

federal habeas petition: (1) Ms. Wagner’s use of a knife during an evidentiary

demonstration at trial prejudiced him in violation of his due process rights; (2)

ineffective assistance of trial counsel; (3) ineffective assistance of appellate

counsel; (4) exclusion of certain evidence under the Kansas rape shield statute

violated his Sixth Amendment rights; (5) allowing Ms. Wagner to testify denied

Mr. Pouncil due process; (6) Ms. Wagner’s testimony improperly vouched for the

girls’ testimony; (7) the insufficient evidence used to convict Mr. Pouncil violated

his due process rights; and (8) the trial court’s upward departure of his sentence

was erroneous. The district court determined that the first three issues were

procedurally barred. Mr. Pouncil does not directly appeal this determination, but

because we construe pro se filings liberally,         Ledbetter v. City of Topeka   , 318 F.3d

1183, 1187 (10th Cir. 2003), we will treat Mr. Pouncil’s filing as a proper appeal

of this ruling. The district court analyzed the remaining five issues under

AEDPA, and we review these claims on an individualized basis. Our

determination whether to grant a COA incorporates the highly deferential AEDPA


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standard for evaluating requests for habeas relief. We will grant a COA “only if

reasonable jurists could debate whether the petitioner might be eligible for habeas

relief— i.e. , . . . whether the state court's decision on the merits of the petitioner’s

constitutional claim was unreasonable or ran contrary to clearly established

federal law.” Dockins v. Hines , 374 F.3d 935, 937 (10th Cir. 2004).

                           A. Procedurally Barred Claims

       The district court concluded that three of Mr. Pouncil’s claims were

procedurally barred for failure to exhaust his state post-conviction remedies. Mr.

Pouncil was two days late in filing his petition for review of these claims in the

Kansas Supreme Court. Mr. Pouncil’s attorney filed a motion for review out of

time, but the Kansas Supreme Court denied the motion and denied Mr. Pouncil’s

petition for review as not timely filed pursuant to K.S.A. § 60-1507. The district

court concluded that Mr. Pouncil could only surmount his procedural default by

showing cause and prejudice or a fundamental miscarriage of justice. The district

court determined that Mr. Pouncil did not make either of these showings and

dismissed the three claims at issue.

       The failure of a habeas petitioner to present claims to a state supreme court

in a timely fashion results in procedural default of those claims.      See O’Sullivan

v. Boerckel , 526 U.S. 838, 848 (1999). To circumvent procedural default a

plaintiff must show cause and prejudice or a fundamental miscarriage of justice.


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Coleman v. Thompson , 501 U.S. 722, 750 (1991). The record contains a letter

from the attorney who represented Mr. Pouncil during his state post-conviction

proceedings. In the letter, the attorney admits that he mistakenly filed Mr.

Pouncil’s § 60-1507 motion two days late. While this attorney error is

regrettable, it is insufficient to show cause. There is no constitutional right to

counsel in post-conviction proceedings, thus procedural default due to attorney

error “cannot constitute cause to excuse the default in federal habeas.”   Id. at 757.

Mr. Pouncil does not allege a fundamental miscarriage of justice in this appeal,

so, like the district court, we conclude that the procedural bar in this case was

valid.

            B. The Exclusion of Evidence under the Kansas Rape Shield Act

         During his trial the defendant sought to question A.S. and D.S. about an

alleged incident at a trailer park in Texas where some boys allegedly pulled the

girls’ pants down. The trial court prohibited this request, and the Kansas Court of

Appeals affirmed this decision, citing the requirement under the Kansas rape

shield statute that evidence of prior sexual conduct must be relevant to be

admissible. See K.S.A. § 21-3525. Mr. Pouncil contends that the use of the rape

shield statute to bar this evidence violated his Sixth Amendment right to

confrontation. To prevail on this claim Mr. Pouncil must demonstrate that the

decision of the Kansas Court of Appeals was contrary to or involved an


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unreasonable application of clearly established federal law as determined by the

United States Supreme Court. 28 U.S.C. § 2254(d)(1). The Supreme Court has

acknowledged that the right to confrontation “may, in appropriate cases, bow to

accommodate other legitimate interests in the criminal trial process.”     Michigan v.

Lucas , 500 U.S. 145, 149 (1991). The Supreme Court has held that the privacy

rights of rape victims are sufficiently important to justify some limitations on the

right to confront.   See id. at 149–50 (“[Rape shield statutes] are a valid legislative

determination that rape victims deserve heightened protection against surprise,

harassment, and unnecessary invasions of privacy.”).

       The judgment of the Kansas Court of Appeals that the trial court properly

applied the Kansas rape shield statute was not a violation of clearly established

federal law. The evidence of the episode with the boys has little bearing on the

girls’ advanced sexual knowledge. The Supreme Court has held that excluding

marginally relevant evidence of prior sexual experience or activity is a

permissible limitation on the right to confront.    See id. at 149. There is no reason

to consider the Kansas Court of Appeals decision an unreasonable application of

the Supreme Court’s jurisprudence on this subject.

    C. The Decision to Admit the Expert Testimony of Physician Assistant

       Mr. Pouncil challenges the trial court’s decision to allow Ms. Wagner to

testify on behalf of the prosecution. Ms. Wagner, a physician’s assistant,


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provided testimony that the victims had been sexually abused. The Kansas Court

of Appeals rejected Mr. Pouncil’s appeal of this decision, concluding that Ms.

Wagner had the training, experience, and education to qualify as an expert. Mr.

Pouncil argues that admission of this testimony violated his 14th Amendment due

process rights. To demonstrate that the Kansas Court of Appeals violated a

clearly established federal law Mr. Pouncil must meet an extraordinarily high

standard; he must demonstrate that the putative error was a “failure to observe

that fundamental fairness essential to the very concept of justice. In order to

declare a denial of it we must find that the absence of that fairness fatally infected

the trial.” Parker v. Scott , 394 F.3d 1302 at *5 (10th Cir. 2005) (quoting   Lisenba

v. California , 314 U.S. 219, 236 (1941)).

      Ms. Wagner had substantial experience examining victims of alleged child

sexual abuse. The trial record demonstrates that she had performed hundreds of

these examinations and trained pediatric residents how to conduct these

examinations. Given Ms. Wagner’s extensive background in the area, we cannot

say that the Kansas Court of Appeals’ analysis of Mr. Pouncil’s appeal violated

clearly established federal law by failing to observe fundamental fairness.

                                     D. Vouching

      Mr. Pouncil next argues that Ms. Wagner vouched for the credibility of the

witnesses in violation of his due process rights. Specifically, Mr. Pouncil


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contends that allowing Ms. Wagner to testify that the injuries of the victims were

consistent with vaginal penetration invaded the province of the jury. The Kansas

Court of Appeals rejected this argument because Mr. Pouncil did not make this

objection at trial.

       There is nothing in Ms. Wagner’s testimony that suggests the deprivation of

the fundamental fairness required for a violation of due process. In prosecutions

for sexual abuse of a child, experts may, as Ms. Wagner did, testify that a victim

shows symptoms consistent with abuse without improperly vouching for the

credibility of the witnesses.   Parker , 394 F.3d 1302 at *7; United States v.

Charley , 189 F.3d 1251, 1264–65, 1269 (10th Cir.1999). The testimony of an

expert can violate a defendant’s due process rights through impermissible

vouching by speaking to the credibility of the victims or stating that the defendant

was the perpetrator of the alleged crime.    Parker , 394 F.3d 1302 at *7. Mr.

Pouncil does not argue that Ms. Wagner testified to the credibility of the victims,

nor does he argue that Ms. Wagner suggested that Mr. Pouncil was the perpetrator

of the abuse. Accordingly, Mr. Pouncil has not demonstrated that the Kansas

Court of Appeals violated clearly established federal law by rejecting his

argument that Ms. Wagner improperly vouched for the credibility of the

witnesses.




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                          E. Sufficiency of the Evidence

      Mr. Pouncil argues that there was insufficient evidence to convict him. To

determine whether the judgment of a state court on a sufficiency of the evidence

claim violates clearly established federal law we apply the standard articulated in

Jackson v. Virginia , 443 U.S. 307 (1979).      See Parker , 394 F.3d 1032 at *9. A

fact finder’s verdict does not violate a defendant’s due process rights if “after

viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson , 443 U.S. at 319. Mr. Pouncil argues that

inconsistencies in the girls’ testimony rendered the evidence insufficient to

convict him. The Kansas Court of Appeals disagreed, citing a number of

consistent portions of the girls’ testimony and the medical evidence that accorded

with their testimony.

      The analysis of the Kansas Court of Appeals did not violate clearly

established federal law. To sustain a conviction under K.S.A. § 21-3502(a)(2),

the prosecution must prove beyond a reasonable doubt that the defendant had

sexual intercourse with a child under 14 years of age. The girls’ testimony that

Mr. Pouncil raped them and the expert medical evidence adduced to corroborate

their testimony was more than sufficient for a rational trier of fact to find a

violation of K.S.A. § 21-3502(a)(2). Thus, the Kansas Court of Appeals did not


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violate clearly established law by finding that the evidence was sufficient to

support Mr. Pouncil’s conviction.

                                   F. Upward Departure

       Finally, Mr. Pouncil argues that the trial court committed error by

increasing his sentence beyond the maximum authorized by statute on the basis of

a judge-found fact. While Mr. Pouncil’s sentence does violate the Sixth

Amendment requirement articulated in           Apprendi v. New Jersey , 530 U.S. 466

(2000), it is the settled law of this Circuit that      Apprendi is the not the type of

watershed decision that entitles a defendant to retroactive relief in an initial

habeas action.    United States v. Mora , 293 F.3d 1213, 1219 (10th Cir.),       cert.

denied , 537 U.S. 961 (2002). Consequently, this claim fails.

                                               III.

       For the reasons set forth above, we DENY Mr. Pouncil’s request for a COA

and DISMISS this appeal.

                                                      Entered for the Court,



                                                      Patrick Fisher, Clerk




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