                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                November 13, 2008
                            FOR THE TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

    CHRISTOPHER WICKHAM,

                Petitioner-Appellant,
                                                        No. 08-4023
    v.                                           (D.C. No. 2:03-CV-595-TS)
                                                         (D. Utah)
    CLINT FRIEL; STATE OF UTAH,

                Respondents-Appellees.


                            ORDER AND JUDGMENT *


Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges.



         A Utah state jury convicted Christopher Wickham of two counts of

aggravated sexual assault, for which he was sentenced to serve two consecutive

ten-year-to-life terms in prison. He appeals from an order of the federal district

court denying his 28 U.S.C. § 2254 petition for a writ of habeas corpus. This

court previously granted him a certificate of appealability (“COA”) to review the



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
issue whether his trial counsel was constitutionally ineffective in failing to seek

the production of his victim’s mental health records. See 28 U.S.C. § 2253(c)

(requiring habeas petitioner to obtain COA to pursue appeal from habeas corpus

denial). We now affirm the denial of habeas relief.

                                          I

                                          A

      Shortly before Christmas 1995, the victim, then a sixteen year-old girl, ran

away from the Adolescent Residential Treatment and Educational Center

(“ARTEC”), a treatment facility in Salt Lake County specializing in teenage

behavioral problems. The victim testified at trial that she had been at ARTEC

because she had an alcohol problem, that she did not do well in foster homes, and

that she ran away from ARTEC because she wanted to be with her family at

Christmas.

      Three days after Christmas, on December 28, 1995, the victim, then a

sixteen year-old girl, and her friend, Rochelle, met Mr. Wickham at a bus stop.

The victim gave Mr. Wickham money to buy liquor. He bought some grain

alcohol and they proceeded to Rochelle’s house. The victim met a number of

people at the house, including a man named Danny Pliego. Mr. Wickham made

some drinks containing the grain alcohol and punch. Over the course of a couple

of hours, the victim consumed two or three of the drinks and watched movies.




                                         -2-
      Some of the people at the house asked the victim if she planned to spend

the night. They told her “if you spend one night here, you get jumped.” Aplt.

App., tab “A,” testimony of victim, at 14. The victim interpreted this as a threat

that she might be beaten (not raped) and, while she initially shrugged it off as a

joke, she eventually became sufficiently worried that she called three of her

sisters, asking to be picked up; none was able to come get her. Eventually, the

victim went to Mr. Wickham’s bedroom to sleep. Mr. Pliego followed her into

the room and began touching and kissing her. She told him to leave her alone.

He left the room for a while and she went to sleep.

      Later, Mr. Pliego returned and began touching and kissing her again. He

called Mr. Wickham into the room. Mr. Wickham held her hands down and

covered her mouth while Mr. Pliego raped her. Then the two men traded places

and Mr. Wickham raped her vaginally and anally. The victim was unable to move

from the bedroom and remained there until the next morning, when her sister

picked her up.

      Upon arriving, the victim’s sister immediately noticed that she had suffered

serious physical injuries. The victim eventually told her what had happened but

refused to go to a doctor or report it to the police because she was afraid of

retaliation from the people in the house, or of being returned to ARTEC. In the

two months after the rape, the victim received medical attention several times for




                                          -3-
abdominal pain and vaginal bleeding. Finally, in February 1996, she informed the

police about the incident.

                                           B

         The state of Utah charged both Mr. Wickham and Mr. Pliego with two

counts of aggravated sexual assault. Mr. Wickham rejected a plea bargain and

went to trial. After a jury convicted Mr. Wickham, his counsel filed a motion for

new trial, but withdrew it after Mr. Pliego refused to talk with him or to provide

an affidavit attesting to Mr. Wickham’s innocence. Mr. Wickham’s counsel did

not appeal his conviction, although Mr. Wickham later stated that he asked him to

do so.

         In the meantime, as Mr. Pliego himself faced the prospect of trial, he began

attempting to obtain the victim’s mental health record from state agencies

associated with her stay at ARTEC. While he failed in an effort to compel the

prosecution to provide them, 1 the records were later released to him inadvertently

by one or more of the agencies involved. These records revealed that the victim

had previously made false sexual abuse allegations. Subsequently, Mr. Pliego


1
      Mr. Pliego filed a discovery motion in which he sought an order requiring
the prosecution to provide him with the victim’s mental health records, and for an
in camera inspection of her Division of Family Services and Child Protective
Services records. The state district court denied his motion. He appealed the
denial to the Utah Supreme Court, which held that the prosecutor had no duty to
obtain and produce the records. State v. Pliego, 974 P.2d 279, 283 (Utah 1999).
The court further advised Mr. Pliego that he should have attempted to obtain these
records himself by subpoenaing them from the relevant agencies. Id.

                                          -4-
pleaded guilty to a lesser charge of unlawful sexual intercourse, a third degree

felony under Utah law. The prosecutor later testified that a primary concern in

offering Mr. Pliego a favorable plea bargain was the fact that the victim’s mental

health records called the veracity of her story into question by revealing that she

had previously lied about sexual abuse unrelated to this case.

                                          C

      In due course, Mr. Wickham filed a petition for post-conviction relief in

state court. His petition included a claim that trial counsel was ineffective in

failing to seek production of the mental health records obtained by Mr. Pliego’s

counsel, and that these records and other testimony constituted newly-discovered

exculpatory evidence. As part of his post-conviction efforts, Mr. Wickham’s

counsel subpoenaed the mental health records from various governmental and

mental health agencies, including the Division of Family Services and Child

Protective Services (DCFS) and Valley Mental Health. These parties filed

motions to quash the subpoenas, contending, among other things, that the records

were privileged. Mr. Wickham responded with a motion to compel production of

the records. The state district court denied the motions to quash, and ordered the

materials produced to the court for an in camera inspection.

      After reviewing the records in camera, the state district court released to

counsel those records it determined were material to his claim. These records

showed that the victim had a history of lying about sexual abuse. She had made

                                         -5-
accusations involving ritualistic Satanic abuse and accused her father and brother

of being part of a cult and of sexually assaulting her. She had admitted to her

therapist to lying about sexual abuse.

      At an evidentiary hearing held by the state district court, Mr. Wickham’s

trial counsel testified that he presented no evidence along these lines at trial

because he had not been aware of it. He also testified that he made no effort to

obtain the victim’s mental health records because he believed they were

privileged and confidential. Counsel further revealed, however, that Mr.

Wickham had been offered the same plea bargain that Mr. Pliego received, a

guilty plea to one third-degree felony, but had elected to go to trial.

      The state district court rejected Mr. Wickham’s ineffective assistance

claim. But it found that the mental health records were newly-discovered

evidence under Utah law, entitling him to a new trial. The state appealed to the

Utah Supreme Court. The Utah Supreme Court determined that the new evidence

did not warrant a new trial. Wickham v. Galetka, 61 P.3d 978, 980-81 (Utah

2002). In its opinion, however, the Utah Supreme Court did not expressly address

the claim at issue here: that Mr. Wickham’s counsel was constitutionally

ineffective in failing to obtain the victim’s mental health records. Mr. Wickham

pointed out this omission in a petition for rehearing, but the Utah Supreme Court

denied the rehearing petition without further analysis.




                                          -6-
      In 2003, matters moved from state to federal court. Mr. Wickham filed the

present petition in federal district court, raising eleven issues including

ineffective assistance of counsel. The district court denied most of the claims,

including the ineffective assistance claim, as untimely. On appeal, a panel of this

court reversed the untimeliness ruling concerning the ineffective assistance claim

and remanded for further proceedings. Wickham v. Friel, 216 F. App’x 784, 790

(10th Cir. 2007). On remand, the district court considered the state court’s

holding that Mr. Wickham’s counsel had not been ineffective. It determined that

this holding did not rest on an unreasonable determination of the facts or an

unreasonable application of clearly established federal law. See 28 U.S.C. §

2254(d)(1)-(2). It therefore denied habeas relief, and that decision is now before

us in this appeal.

                                          II

      The district court applied the deferential AEDPA standard of review

prescribed by 28 U.S.C. § 2254(d). In its opinion addressing Mr. Wickham’s

post-conviction claims for relief, the Utah Supreme Court expressly discussed

only two of the three bases Mr. Wickham advanced in support of his ineffective

assistance claim, omitting mention of counsel’s failure to obtain the victim’s

mental health records. See Wickham, 216 F. App’x at 786. There is some reason

to question, therefore, whether the ineffective assistance claim before us was

“adjudicated on the merits” such that it merits AEDPA deference. See Brown v.

                                          -7-
Sirmons, 515 F.3d 1072, 1087 (10th Cir. 2008). For this reason, we apply a de

novo review to legal questions presented in this appeal. In doing so, however, we

nonetheless defer to the state district court’s factual findings by presuming them

correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1);

Morris v. Burnett, 319 F.3d 1254, 1267 (10th Cir. 2003).

      To establish ineffective assistance of counsel, a petitioner must prove that

counsel’s performance was constitutionally deficient and that this deficient

performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687

(1984). We believe that Mr. Wickham fails on the first of these tests. To

establish deficient performance, counsel’s performance must be “completely

unreasonable,” not “merely wrong.” Hoxsie v. Kerby, 108 F.3d 1239, 1246 (10th

Cir. 1997) (quotation omitted). We cannot conclude that counsel’s performance

in this case fell to such a low level.

      We reach this conclusion based in large measure because of the high

standard required to access mental health records in Utah. Under Utah law,

information communicated to a mental health therapist is privileged from

disclosure. See Utah R. Evid. 506(b); see also Utah Code Ann. § 58-60-114(1)

(West 2008) (prohibiting mental health therapist from disclosing confidential

communications). An exception exists, to be sure, when the information

communicated to the therapist is “relevant to an issue of the physical, mental, or

emotional condition of the patient in any proceeding in which that condition is an

                                         -8-
element of any claim or defense.” Utah R. Evid. 506(d)(1). But, in Pennsylvania

v. Ritchie, 480 U.S. 39 (1987), the Supreme Court, considering a similar rule of

privilege in the case of a defendant convicted of sexual offenses against a child,

balanced the state’s interest in privacy of the child’s records against the

defendant’s right to due process. It held that due process entitled the defendant to

in camera review by the state trial court of his alleged victim’s otherwise

privileged Children and Youth Services file to determine whether it contained

evidence material to the defense. Id. at 57-61. Applying Ritchie, the Utah

Supreme Court has held that “if a defendant can show with reasonable certainty

that exculpatory evidence exists which would be favorable to his defense, Ritchie

gives him the right to have the otherwise confidential records reviewed by the

trial court to determine if they contain material evidence.” State v. Cardall, 982

P.2d 79, 85 (Utah 1999) (emphasis added).

      A showing of “reasonable certainty” requires more than a general request

for anything in the records that might be exculpatory. State v. Blake, 63 P.3d 56,

62 (Utah 2002). Rather, “specific facts must be alleged. These might include

references to records of only certain counseling sessions, which are alleged to be

relevant, independent allegations made by others that a victim has recanted, or

extrinsic evidence of some disorder that might lead to uncertainty regarding a

victim’s trustworthiness.” Id. “This is a stringent test, necessarily requiring




                                          -9-
some type of extrinsic indication that the evidence within the records exists and

will, in fact, be exculpatory.” Id. at 61.

      During the evidentiary hearing in this case, Mr. Wickham’s counsel stated

that he did not know prior to trial that the victim’s mental health records

contained information about prior false accusations of sexual abuse. Neither are

we pointed to any convincing reason to believe Mr. Wickham’s counsel could

have been expected to discover independent or extrinsic evidence suggesting that

the victim’s records contained information along these lines. In these

circumstances, we must agree with the federal district court that assessed Mr.

Wickham’s habeas action in the first instance: “Although [Mr. Wickham’s] trial

counsel knew in general that the social services records existed, he would not

have been entitled, under Utah law at the time, to conduct a ‘fishing expedition’

through the victim’s records in vague hopes to unearth something specifically

damaging to the victim’s credibility.” Aplt. App., tab “Q,” at 15.

      Mr. Wickham argues that his attorney’s ineffectiveness is shown by the fact

that Mr. Pliego’s counsel subpoenaed the records and eventually obtained them.

He suggests his counsel could and should have done likewise. This ignores the

fact that Mr. Pliego did not obtain the records through lawful process, but through

an administrative error, without the judicial oversight provided for by Utah law.

Such a mistake cannot form the basis for habeas relief in Mr. Wickham’s case.




                                             -10-
No individual has an “entitlement to the luck of a lawless decisionmaker.”

Lockhart v. Fretwell, 506 U.S. 364, 370 (1993).

      Mr. Wickham replies by underscoring that his counsel ultimately obtained

the records in post-conviction proceedings. Counsel argued to the district court in

Mr. Wickham’s post-conviction proceeding that “he [was] aware of specific

information contained in the victim’s mental health records which could

potentially cast doubt on her credibility” and thereby was able to obtain the

records. Aplt. App., tab “F,” at 5. But counsel was only able to make this

required showing because, by then, Mr. Pliego had the records and counsel knew

of their contents. This does not demonstrate that Mr. Wickham’s trial counsel,

who did not have the records and could not have made a showing of entitlement

to them, was constitutionally ineffective.

      Mr. Wickham argues that, even without the benefit of their inadvertent

release to Mr. Pliego, his trial counsel could have shown enough to obtain an in

camera review by arguing (1) his story differed from that of the victim, and she

was lying about the alleged rape; (2) the victim reported the rape to DCFS, and

the prosecution had provided him with a transcript of the DCFS interview; (3) the

victim was not credible because she was committed to ARTEC for mental health

problems; and (4) at the time of the rape, she was an escapee from ARTEC. He

contends that failure to present these facts to the district court and thereby to




                                          -11-
obtain the records represented a constitutionally-defective failure to investigate

facts relevant to his defense.

      None of these facts, individually or in tandem, would have required release

of the records. Mr. Wickham’s contention that the victim was lying in his case

would not have been the same as showing that she had a propensity to lie. Cf.

Cardall, 982 P.2d at 85 (noting defendant’s contention that victim was “a habitual

liar” and that records sought would show that she had lied about a prior attempted

rape or sexual touching incident involving a school janitor). Although counsel

had a copy of the DCFS interview, there is no indication that the interview

provided him with any independent or extrinsic information concerning her

truthfulness. The fact that the victim had been committed to a behavioral facility

from which she had managed to escape at the time of the rape did not cast

sufficient doubt on her truthfulness to make it likely that the trial court would

have conducted an in camera inspection of her mental health records. See Blake,

63 P.3d at 61-62 (rejecting, as justification for in camera review, counsel’s claim

that the victim’s mental health records should be reviewed because they “may

have information about medication she’s taking that effect [sic] her credibility;

about whether she has recanted or not . . . [and] she may have a mental illness

where part of the diagnosis is chronic lying.”). In sum, Mr. Wickham cites no

independent or extrinsic evidence on which counsel could have relied to show that

the victim was likely to be lying or delusional.

                                         -12-
      Finally, Mr. Wickham launches an attack on the state court’s factual

findings. Although the federal district court conceded (and we do not disagree)

that Mr. Wickham’s counsel knew of the existence of the victim’s records, by

virtue of her previous confinement at ARTEC, Mr. Wickham seeks to overturn

what he contends is a contrary factual finding of the state district court on that

issue. We find this argument legally irrelevant, and in any event insufficient to

overturn the state court’s finding.

      First, the issue holds little or no relevance here: in assessing ineffective

assistance, we are not concerned with whether trial counsel knew records existed,

but whether, in the exercise of reasonable diligence, he could have shown with

reasonable certainty that the contents of the records were exculpatory in order to

obtain an in camera review. For reasons we have already explored, on that

dispositive question before us, we think the answer is clearly no.

      Second, and in any event, we cannot say that the state court’s findings,

when read as a whole, were clearly erroneous. The state court found that Mr.

Wickham’s trial counsel “did not know that [the victim’s mental health records]

existed nor could he have discovered them using reasonable diligence.” Aplt.

App., tab “N,” at 2. This finding was essential to the court’s grant of a new trial

on the basis of “newly discovered material evidence.” See Utah Code Ann. § 78-

35a-104(1)(e)(i) (requiring that “neither the petitioner nor petitioner’s counsel

knew of the [newly discovered] evidence . . . and the evidence could not have

                                         -13-
been discovered through the exercise of reasonable diligence.” (emphasis

added)), renumbered as Utah Code Ann. § 78B-9-104(1)(e)(i). Had the state

district court found otherwise -- i.e., that counsel knew of the records or that he

could have discovered them using reasonable diligence -- it could not have

granted Mr. Wickham a new trial. The challenged factual finding was therefore

actually favorable to Mr. Wickham at the time the state district court made it.

Even more to the point, there is good reason to believe that the state district

court’s challenged factual finding was not that counsel was unaware of the

existence of any records, but rather that counsel did not know the contents would

prove exculpatory. See Aplt. App., tab “N,” at 2 finding 5 (“Records generated

by ARTEC and [DCFS] . . .(“The Records”) indicate that [the victim] had lied

about being sexually abused.”). Read this way, the factual finding must be upheld

against Mr. Wickham’s challenge. As we have seen, the undisputed evidence

showed that trial counsel had no knowledge of the fact that the victim’s records

contained information about her prior false rape allegations.

      The judgment of the district court is AFFIRMED.


                                                     Entered for the Court


                                                     Neil M. Gorsuch
                                                     Circuit Judge




                                         -14-
