                                                                            FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                    November 7, 2007
                      UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                         Clerk of Court
                                  TENTH CIRCUIT



 ABEL TORRES,

                 Petitioner-Appellant,                    No. 07-3176
          v.                                              (D. of Kan.)
 RAY ROBERTS, Warden, El Dorado                  (D.C. No. 06-CV-3237-KHV)
 Correctional Facility; ATTORNEY
 GENERAL OF KANSAS,

                 Respondents-Appellees.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HENRY, TYMKOVICH, and HOLMES, Circuit Judges. **



      Abel Torres, proceeding pro se, seeks a certificate of appealability (COA)

to enable him to appeal the district court’s denial of the habeas petition he filed

pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (providing an

appeal may not be taken from the denial of a § 2254 habeas petition unless the



      *
         This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
petitioner first obtains a COA). Torres also seeks an evidentiary hearing and

leave to proceed in forma pauperis. For substantially the same reasons provided

by the district court, we AFFIRM.

                                  I. Background

      Torres was tried for killing his 21-month old daughter. A Kansas state jury

convicted him of felony murder in the first degree based on the underlying crime

of felony abuse of a child. Torres is serving a sentence of life in prison with no

possibility of parole for twenty years. The Kansas Supreme Court affirmed his

conviction on direct appeal. Torres filed this § 2254 action in the United States

District Court for the District of Kansas, and the court denied his petition.

                                    II. Discussion

      In order to obtain a COA, Torres must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order to do so,

Torres “must show that reasonable jurists could debate whether . . . the petition

should have been resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell,

537 U.S. 322, 336 (2003) (internal quotation marks omitted). “[A] claim can be

debatable even though every jurist of reason might agree, after the COA has been

granted and the case has received full consideration, that [the] petitioner will not

prevail.” Id. at 338.




                                         -2-
      In his § 2254 petition, Torres raises several grounds for relief. The district

court concluded he procedurally defaulted on the following two claims: (1) the

trial court violated his Sixth Amendment rights when it admitted gruesome

autopsy photographs—other than state’s Exhibits 22 and 31—into evidence; and

(2) the trial court erred in allowing the state to introduce testimony of six expert

witnesses on shaken baby syndrome.

      The district court then reviewed and rejected the following eleven grounds

for relief: (1) the record contained insufficient evidence of felony murder; (2) the

trial court violated his Sixth Amendment right to confront witnesses when it

admitted evidence of his statements to law enforcement officials; (3) the state

violated his right to due process because it did not record his two interviews with

law enforcement officers, and the trial court erred when it did not instruct the jury

it could make an inference against the state based on its failure to record the

interviews; (4) the trial court violated his Miranda rights by admitting evidence of

statements he made to law enforcement officials; (5) the trial court erred in not

instructing the jury on the lesser included offenses of reckless second degree

murder and reckless involuntary manslaughter; (6) the trial court erred in

admitting state’s Exhibits 22 and 31 into evidence; (7) the trial court erred in

denying a motion for mistrial based on allegations that the prosecutor tampered

with a witness; (8) the trial court erred in allowing demonstrative illustrations of

“shaken impact” and “shaken baby” syndrome; (9) the trial court erred in

                                         -3-
allowing Dr. Katherine Melhorn’s testimony; (10) the trial court erred in allowing

certain testimony of expert witness Dr. Mary Dudley; and (11) the cumulative

effect of trial errors deprived Torres of his right to a fair trial.

       For substantially the same reasons as those set forth in the district court’s

order, we conclude Torres is not entitled to a COA.

A. Procedural Default

       We first consider whether Torres procedurally defaulted any of his claims.

On habeas review, federal courts do not review claims that have been defaulted in

state courts on an independent and adequate state procedural ground, unless the

petitioner demonstrates cause for the default and actual prejudice, or alternatively

demonstrates a fundamental miscarriage of justice. McCracken v. Gibson, 268

F.3d 970, 976 (10th Cir. 2001).

       The district court concluded Torres procedurally defaulted on the following

claims: (1) the trial court violated his Sixth Amendment rights when it admitted

gruesome autopsy photographs—other than state’s Exhibits 22 and 31 1—into

evidence; and (2) the trial court erred in allowing the state to introduce testimony

of six expert witnesses 2 on shaken baby syndrome. Torres v. Roberts, No. 06-



       1
        Torres properly preserved his claim that the trial court violated his Sixth
Amendment rights when it admitted state’s Exhibits 22 and 31. This claim will
be discussed below.
       2
        Torres properly objected only to Dr. Melhorn’s testimony. Torres, 121
P.3d at 445–46. Her testimony will be discussed below.

                                            -4-
3237-KHV, 2007 WL 1662645, at *8 (D. Kan. June 5, 2007). We agree with the

district court.

       Torres raised both of these contentions in his direct appeal to the Kansas

Supreme Court, and the court declined to consider these issues because he had not

preserved the issues at trial. In reaching this conclusion, the court relied upon the

following state procedural rule: a timely and specific objection to the admission

of evidence is necessary to preserve an issue for appeal. State v. Torres, 121 P.3d

429, 442–43, 446 (Kan. 2005) (citing State v. Diggs, 34 P.3d 63, 75 (Kan. 2001)).

       The Kansas Supreme Court’s application of its preservation rule is an

independent and adequate state law ground to default Torres’s claims. Torres

asserts no cause for the default. Nor has he shown the probability of actual

innocence required by the fundamental miscarriage of justice exception. See

Bousley v. United States, 523 U.S. 614, 623 (1998). For these reasons, we

conclude he defaulted on both claims.

B. Torres’s Reviewable Claims

       The following claims are reviewable. The district court did not err in

concluding they would not support habeas relief.

       1. Sufficiency of Evidence Regarding Felony Murder

       The Kansas Supreme Court rejected Torres’s claim that there was

insufficient evidence of felony murder. Torres, 121 P.3d at 437. In reaching this

conclusion, it applied a standard of review nearly identical to the one required

                                          -5-
under Jackson v. Virginia, 443 U.S. 307, 319 (1979). Because the court

reasonably applied the correct standard to the facts of the case, 28 U.S.C. § 2254,

we conclude Torres is not entitled to a COA on this ground.

      2. Sixth Amendment Right to Confrontation

      The Kansas Supreme Court rejected Torres’s argument that the trial court

violated his Sixth Amendment right to confront witnesses when it admitted the

statements he made to law enforcement officers. Torres, 121 P.3d at 437–38.

The court explained Crawford v. Washington, 541 U.S. 36, 53–54 (2004), did not

prohibit the district court from admitting these statements, even though Torres did

not testify. Torres, 121 P.3d at 438. We agree that no clear authority exists for

the proposition that the Sixth Amendment guarantees a right to “confront oneself”

at trial. See, e.g., United States v. Brown, 441 F.3d 1330, 1359 (11th Cir. 2006),

cert. denied, 127 S. Ct. 1149, 166 L. Ed. 2d 998 (2007) (holding district court did

not violate Sixth Amendment by admitting defendant’s out-of-court statement)

(citing United States v. Zizzo, 120 F.3d 1338, 1354 (7th Cir. 1997); United States

v. Moran, 759 F.2d 777, 786 (9th Cir. 1985); United States v. Rios Ruiz, 579 F.2d

670, 676–77 (1st Cir. 1978); 4 Jack B. Weinstein & Margaret A. Berger,

Weinstein’s Federal Evidence § 802.05[3][d] at 802-25 (2d ed. 2005) (explaining

“a party cannot seriously claim that his or her own statement should be excluded

because it was not made under oath or subject to cross-examination”)); United

States v. Lafferty, 387 F. Supp. 2d 500, 511 (W.D. Pa. 2005) (“Inherent in Justice

                                         -6-
Scalia's analysis in the Crawford opinion was the idea that the right of

confrontation exists as to accusations of third parties implicating a criminal

defendant, not a criminal defendant implicating herself.”); but see United States v.

Gibson, 409 F.3d 325, 338 (6th Cir. 2005) (implying admission of an out-of-court

confession by defendant might raise confrontation problems under Crawford).

We conclude the court’s decision was not contrary to, nor an unreasonable

application of Crawford.

      3. Failure to Record Interviews

      Torres claims the state violated his right to due process when it did not

record his two interviews with law enforcement officers. In Arizona v.

Youngblood, the Court explained a defendant could set forth a due process

violation by showing police acted in bad faith in failing to preserve evidence “that

[ ] could have been subjected to tests, the results of which might have exonerated

the defendant.” Arizona v. Youngblood, 488 U.S. 51, 57 (1988). The Kansas

Supreme Court interpreted Youngblood as holding absent bad faith, the failure to

preserve evidence potentially useful to the defendant does not violate due process.

Torres, 121 P.3d at 438–39; see also Bullock v. Carver, 297 F.3d 1036, 1056

(10th Cir. 2002) (interpreting Youngblood in a similar manner).

      The Kansas Supreme Court concluded Torres had not demonstrated that law

enforcement officials acted in bad faith, and it noted neither Kansas law nor

federal law required officers to record the interviews. It also properly rejected

                                         -7-
Torres’s claim that the trial court erred in failing to instruct the jury that it could

draw a negative inference from the state’s failure to record the interview.

      We conclude the court’s interpretation and application of Youngblood was

reasonable.

      4. Alleged Miranda Violation

      Torres argues the law enforcement officers who interviewed him violated

his Miranda rights, Miranda v. Arizona, 384 U.S. 436, 444–45 (1966), and

therefore the district court erred by not suppressing these statements. The Kansas

Supreme Court held the interviews were not custodial interrogations requiring

Miranda warnings. Torres, 121 P.3d at 441. We conclude this determination was

reasonable and neither contrary to, nor an unreasonable application of Miranda.

      5. Jury Instructions Regarding Lesser Included Offenses

      Torres claims the trial court violated his right to due process by failing to

instruct the jury on the lesser included offenses of reckless second degree murder

and reckless involuntary manslaughter. Neither the Tenth Circuit nor the

Supreme Court has held a defendant has a constitutional right to an instruction on

lesser included offenses in non-capital cases. Beck v. Alabama, 447 U.S. 625,

638 n.14 (1980); Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004) (“Our

precedents establish a rule of ‘automatic non-reviewability’ for claims based on a

state court’s failure, in a non-capital case, to give a lesser included offense

instruction.”). This alleged error, therefore, does not entitle Torres to a COA.

                                           -8-
      6. Admission of Photographs

      Torres contends the admission of numerous autopsy photographs of his

daughter violated his right to a fair trial. As explained above, Torres procedurally

defaulted on this claim, except for state’s Exhibits 22 and 31. Because the

admission of photographs is generally a matter of state evidentiary law, federal

courts on habeas review look only to “whether the admission of the photographs

rendered the proceedings fundamentally unfair.” Smallwood v. Gibson, 191 F.3d

1257, 1275 (10th Cir. 1999). The Kansas Supreme Court determined Exhibits 22

and 31 were probative and rejected Torres’s claim that they were cumulative and

overly gruesome. Torres, 121 P.3d at 442. In light of the probative value of the

photographs, we conclude the admission of these exhibits was not fundamentally

unfair.

      7. Alleged Prosecutorial Misconduct

      Torres claims the district court erred in denying a motion for mistrial based

on the allegation that the prosecutor tampered with a witness. “Habeas relief is

available for prosecutorial misconduct only when the misconduct is so egregious

that it renders the entire trial fundamentally unfair.” Cummings v. Evans, 161

F.3d 610, 618 (10th Cir. 1998) (citing Donnelly v. DeChristoforo, 416 U.S. 637,

642–48 (1974); Jackson v. Shanks, 143 F.3d 1313, 1322 (10th Cir. 1998)). Torres

alleges the prosecution threatened to take a witness’s child away from her and

send her sister to prison if the witness did not change her testimony. The Kansas

                                         -9-
Supreme Court determined the district court did not abuse its discretion by

denying the motion because Torres failed to produce credible evidence showing

the alleged misconduct occurred. Torres, 121 P.3d at 445. Because the court’s

ruling was not contrary to, nor an unreasonable application of United States

Supreme Court precedent, we conclude Torres is not entitled to a COA on this

ground.

      8. Illustrations as Demonstrative Evidence

      Torres argues the district court erred in allowing the prosecution to present

illustrations of “shaken impact” and “shaken baby” syndrome. Torres “may only

obtain habeas relief for an improper state evidentiary ruling ‘if the alleged error

was so grossly prejudicial [that it] fatally infected the trial and denied the

fundamental fairness that is the essence of due process.’” Bullock v. Carver, 297

F.3d 1036, 1055 (10th Cir. 2002) (quoting Revilla v. Gibson, 283 F.3d 1203, 1212

(10th Cir. 2002) (internal quotation marks omitted)). The Kansas Supreme Court

reviewed these exhibits and determined the district court did not err in admitting

these illustrations: they were fair and accurate representations of the human body

and they helped expert witness Dr. Dudley explain her testimony. Torres, 121

P.3d at 445. We conclude this decision was not contrary to United States

Supreme Court precedent, nor did it involve an unreasonable application of

federal law.




                                          -10-
      9. Dr. Melhorn’s Testimony

      Torres contends the district court erred in allowing the state to call six

expert witnesses to the stand while he only called one. He argues the sheer

number of the state’s witnesses overpowered his, rendering his trial

fundamentally unfair. As explained above, Torres procedurally defaulted on this

issue. Torres did, however, preserve his objection to Dr. Melhorn’s testimony.

Torres, 121 P.3d at 445–46. Although the Kansas Supreme Court conceded Dr.

Melhorn’s testimony was cumulative in part, it determined the admission of this

evidence was not an abuse of discretion. Id. at 446.

      In Fox v. Ward, 200 F.3d 1286, 1297 (10th Cir. 2000), this Circuit held a

district court’s admission of testimony from various forensic experts did not

render the defendant’s trial fundamentally unfair. The court emphasized each

expert was qualified to testify and was subject to cross-examination. Similarly,

Dr. Melhorn was qualified to testify and was subjected to cross-examination.

Because Torres failed to show the admission of Dr. Melhorn’s testimony was

fundamentally unfair, we conclude the Kansas Supreme Court’s rejection of

Torres’s claim did not entitle him to a COA.

      10. Dr. Dudley’s Rebuttal Testimony

      Torres argues Dr. Dudley usurped the role of the jury and denied Torres his

right to a fair trial by testifying that his daughter’s death was a homicide and was

a “case example” of shaken baby or shaken impact syndrome. The Kansas

                                         -11-
Supreme Court concluded Dr. Dudley’s testimony did not go to the ultimate

question of Torres’s guilt or innocence. Even if the court erred in admitting the

evidence, it did not rise to the level of denying Torres’s constitutional right to a

fair trial. Torres, 121 P.3d at 446–47. Because the Kansas Supreme Court’s

conclusion was reasonable and not contrary to United States Supreme Court

precedent, Torres is not entitled to habeas relief on this issue.

      11. Cumulative Effect

      Finally, the Kansas Supreme Court’s rejection of Torres’s claim based on

cumulative error was not contrary to, nor an unreasonable application of federal

law. There can be no cumulative error analysis, because this analysis “does not

apply to the cumulative effect of non-errors.” Moore v. Reynolds, 153 F.3d 1086,

1113 (10th Cir. 1998).

                                   III. Conclusion

      Based on our review of the record, we are not persuaded jurists of reason

would disagree with the district court’s disposition of Torres’s petition.

Accordingly, we DENY the application for COA, DENY the request for an

evidentiary hearing, GRANT the motion to proceed in forma pauperis, and

DISMISS the appeal.

                                 Entered for the Court,

                                 Timothy M. Tymkovich
                                 Circuit Judge


                                          -12-
