                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 02-1739
                                ________________

Kermit Oris Bear Stops,                   *
                                          *
             Appellant,                   *
                                          *       Appeal from the United States
      v.                                  *       District Court for the
                                          *       District of South Dakota.
United States of America,                 *
                                          *             [PUBLISHED]
             Appellee.                    *

                                ________________

                                Submitted: February 13, 2003
                                    Filed: June 16, 2003
                                ________________

Before HANSEN,1 Chief Judge, RICHARD S. ARNOLD and BYE, Circuit Judges.

                                ________________

HANSEN, Circuit Judge.

      Kermit Oris Bear Stops appeals the denial of his motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C.§ 2255 (2000). The district court2 granted

      1
       The Honorable David R. Hansen stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2003. He has been succeeded by the Honorable James B. Loken.
      2
       The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
a certificate of appealability on two issues. We affirm the judgment of the district
court.

                                           I.

      The facts of this case are fully set out in our prior opinion in Bear Stops' direct
appeal. See United States v. Bear Stops, 997 F.2d 451 (8th Cir. 1993). Bear Stops
had an unstable relationship with a woman we refer to as T.M. From 1984 through
1990, Bear Stops periodically lived with T.M. and her children, including sons P.M.
and B.B. B.B. was born during this period, and Bear Stops assumed that B.B. was his
son. When they were no longer living with Bear Stops, P.M. and B.B. individually
accused Bear Stops of having sexually abused them. Ultimately, Bear Stops was
convicted of knowingly engaging in a sexual act with P.M. when P.M. was six years
old (Count I), knowingly engaging in a sexual act with B.B. when B.B. was
approximately four years old (Count II), and knowingly causing B.B. to engage in
sexual contact (Count III). See 18 U.S.C. §§ 2241(c), 2245(2)(A), 2244(a)(1), and
2245(3) (1988).

       In Bear Stops' direct appeal, we reversed the conviction on Count I relating to
P.M. but affirmed the convictions on Counts II and III relating to B.B. Bear Stops,
997 F.2d at 459. We reversed Count I because the prior district court had overly
restricted Bear Stops' attempt to offer uncontroverted evidence of an incident of abuse
by someone else that had occurred during the same time period as the conduct alleged
in Count I. P.M. had been sexually assaulted by three older boys in the same manner
alleged against Bear Stops–anal penetration by the penis. This evidence would have
provided a potential alternative explanation for P.M.'s behavior, which the
government demonstrated was consistent with behavior frequently observed in
sexually abused children, and a potential alternative explanation for P.M.'s bloody
underwear, which was the only physical evidence of abuse. We concluded that
"[w]ithout sufficient information to determine whether a potential alternative

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explanation . . . existed," there was a "serious risk of a conviction on erroneous
reasoning" in violation of the Confrontation Clause and the Due Process Clause. Id.
at 457; see also id. at 458. We held that this evidence only affected the reliability of
Count I. The government subsequently dismissed Count I, and the court resentenced
Bear Stops on Counts II and III, involving sexual abuse of B.B., reducing his
sentence from 276 months to 220 months.

       Bear Stops filed a § 2255 motion to vacate, set aside, or correct his sentence.
The present district court denied the motion, concluding in part that Bear Stops'
appellate counsel did not provide constitutionally ineffective assistance. The district
court granted a certificate of appealability on the § 2255 motion "as it relates to the
claimed ineffective assistance of appellate counsel in failing to raise and present the
issue of the spill-over into Counts II and III of the Confrontation Clause violation as
to Count I and the issue of the admission of certain hearsay statements made by B.B.
identifying the petitioner as his abuser." (Appellant's Add. B at 2.)

                                           II.
                                           A.

       Bear Stops first contends that his counsel on direct appeal provided ineffective
assistance by failing to raise and present the issue of whether the Confrontation
Clause violation that invalidated his conviction on Count I spilled over and infected
the convictions on Count II and Count III. We review de novo the district court's
denial of a § 2255 motion to vacate, set aside, or correct a sentence. White v. United
States, 308 F.3d 927, 929 (8th Cir. 2002). A criminal defendant is constitutionally
entitled to the effective assistance of counsel on direct appeal, as well as at trial. See
Evitts v. Lucey, 469 U.S. 387, 396 (1985).

     To establish a claim of ineffective assistance of counsel, Bear Stops must
demonstrate (1) that his attorney's performance was deficient and outside the range

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of reasonable professional assistance, and (2) that he was prejudiced by his counsel's
deficient performance to the extent that there is a reasonable probability that but for
counsel's error, the result of the proceeding would have been different. Strickland v.
Washington, 466 U.S. 668, 687, 689, 694 (1984); United States v. Taylor, 258 F.3d
815, 818 (2001). "Judicial scrutiny of counsel's performance must be highly
deferential." Strickland, 466 U.S. at 689.

       Bear Stops argues that his appellate counsel failed to raise the spillover issue.
He states that his counsel "did not even attack the convictions on the counts involving
B.B. on appeal." (Appellant's Br. at 16.) To the contrary, however, his counsel did
raise this issue and we explicitly rejected it in the opinion. We stated as follows:

      Finally, Bear Stops argues that the alleged evidentiary errors directly
      pertaining to count I involving P.M. as the victim "spilled-over" to
      infect counts II and III, the counts involving the younger child, B.B.
      Because Bear Stops denies that he sexually abused either P.M. or B.B.,
      his credibility is involved in all three counts. Therefore, Bear Stops
      asserts that the alleged errors directly involving count I also affect
      counts II and III because his credibility was impeached. We disagree.


Bear Stops, 997 F.2d at 459. The opinion continues by setting forth more specifically
our reasons for rejecting the claim, noting that the evidentiary issues were unique to
the case involving P.M. and that those issues did not impact the case involving B.B.
beyond the general credibility of Bear Stops. We found that the counts and evidence
involving B.B. presented a much stronger case, and we refused to presume that the
jury did not properly consider each count independently. Id.

       Bear Stops now argues that the evidence pertaining to the constitutionally
invalid conviction on Count I worked to artificially bolster the credibility of B.B. on
Count II and Count III. While Bear Stops might be putting a new spin on the
argument, we are satisfied that we sufficiently addressed and rejected the spillover

                                           4
argument that Bear Stops' counsel raised in the direct appeal concerning the counts
relating to conduct against B.B. In a petition for rehearing, Bear Stops' appellate
counsel asserted that this court had misconstrued his spillover argument, and this
court denied the petition for rehearing.

        There is no basis on which to conclude that Bear Stops' counsel did not raise
the spillover issue in his direct appeal. We find no error or deficiency in counsel's
performance, and thus counsel's performance could not have prejudiced the defense.
"It is well settled that claims which were raised and decided on direct appeal cannot
be relitigated on a motion to vacate pursuant to 28 U.S.C. § 2255." United States v.
Shabazz, 657 F.2d 189, 190 (8th Cir. 1981).

                                          B.

       The second question that the district court certified for appeal is somewhat
ambiguous. The certificate states that there is an appealable issue "as it relates to the
claimed ineffective assistance of appellate counsel" in failing to raise the spillover
issue "and the issue of the admission of certain hearsay statements made by B.B.
identifying the petitioner as his abuser." (Appellant's Add. B at 2.) Bear Stops'
attorney represented at oral argument that he understood the district court's
certification order to permit him in this appeal to address only the question of a direct
evidentiary error in the admission of the hearsay statements and not an ineffective
assistance of counsel claim. We believe that the certificate can also be read in such
a manner that the phrase "ineffective assistance of appellate counsel" modifies the
second issue as well as the first, requiring the alleged evidentiary error to be
considered in the context of an ineffective assistance of appellate counsel claim. Our
reading of the certificate is supported by the fact that the district court's order
disposing of the § 2255 motion addressed this hearsay issue solely in the context of
an ineffective assistance claim and the fact that the stand-alone hearsay issue likely



                                           5
would be procedurally barred precisely because of appellate counsel's failure to raise
it in the direct appeal.

       Additionally, as Bear Stops has briefed the stand-alone evidentiary issue, he
has not demonstrated or even alleged the violation of any constitutional right. To
prevail on a § 2255 motion, the petitioner must demonstrate a violation of the
Constitution or the laws of the United States. Bear Stops' only allegation of a
constitutional violation relating to this evidentiary issue comes at the end of his brief
when he frames the issue as an ineffective assistance claim, stating as follows: "The
hearsay statements should have been excluded, and appellate counsel was ineffective
in not raising the issue on appeal. Defendant's conviction[s] should be set aside."
(Appellant's Br. at 24.) We note that trial defense counsel objected to the admission
of the statements, and his objections were overruled.

       We will consider this issue in the context of a claim of ineffective assistance
of appellate counsel, as did the district court. Again, to prevail on a Sixth
Amendment ineffective assistance of counsel claim, the defendant must demonstrate
that counsel's performance was deficient and that the deficient performance
prejudiced the defense. Strickland, 466 U.S. at 687. To establish prejudice, the
petitioner must demonstrate a reasonable probability that the result of the proceedings
would have been different absent counsel's error. Id. at 694.

       We first conclude that there was no Confrontation Clause violation through the
admission of the alleged hearsay testimony. The hearsay rule is a rule of evidence
designed to protect the constitutional right to confront witnesses, but not every
violation of the hearsay rule amounts to a violation of the Confrontation Clause.
Mann v. Thalacker, 246 F.3d 1092, 1100 (8th Cir.), cert. denied, 534 U.S. 1018
(2001). The Confrontation Clause is satisfied when the hearsay evidence falls within
a firmly rooted exception to the hearsay rule or is supported by facts that otherwise
demonstrate the statement's reliability; the Confrontation Clause is alternatively

                                           6
satisfied when the hearsay declarant testifies at trial and is available for cross-
examination. Id.; see also United States v. Owens, 484 U.S. 554, 557 (1998) (noting
that the Confrontation Clause "has long been read as securing an adequate
opportunity to cross-examine adverse witnesses").

       In this case, both of the child witnesses testified at trial and were available for
cross-examination. We have specifically held that "[t]he Clause is satisfied when the
hearsay declarants, here the alleged child victims, actually appear in court and testify
in person." United States v. Spotted War Bonnet, 933 F.2d 1471, 1473 (8th Cir.
1991), cert. denied, 502 U.S. 1101 (1992). We cautioned in Spotted War Bonnet that
all Confrontation Clause concerns cannot be eliminated by simply placing a child on
the stand without regard for the child's mental maturity. Id. at 1474. Here, however,
there is no assertion that the child witnesses were lacking the maturity to
communicate effectively with counsel or the jury. When a defendant has had ample
opportunity to cross-examine a witness and discredit the witness's testimony, there
is no Confrontation Clause violation. Loeblein v. Dormire, 229 F.3d 724, 729 (8th
Cir. 2000), cert. denied, 532 U.S. 982 (2001). Because Bear Stops had the
opportunity to cross-examine the child witnesses, there is no Confrontation Clause
violation from the admission of the alleged hearsay evidence, and we find it
unnecessary to consider whether the statements fell within any recognized hearsay
exception. Absent a Confrontation Clause violation, there could be no prejudice from
Bear Stops' appellate counsel's failure to raise the issue on appeal. Id.

      In addition, the inclusion of any hearsay evidence in this case was not so
prejudicial that it would have changed the results of the proceedings. See Strickland,
466 U.S. at 694. In the direct appeal, we noted that "the case against Bear Stops" on
the counts involving B.B. was "much stronger" than the case against the older boy.
Bear Stops, 997 F.3d at 459. We stated as follows: "There appeared to be no
question that B.B. was able to identify his father with whom he had lived for
approximately the first five years of his life. B.B.'s description of the alleged

                                            7
incidents with Bear Stops was consistent regardless of whether it was oral, acted out
with anatomically correct dolls, or with pictures drawn on paper." Id. Furthermore,
the present district court thoroughly discussed the evidence that was presented at trial
and concluded, "The evidence was very convincing that B.B. was sexually abused by
an adult male. B.B. testified that petitioner was his abuser. There was no evidence
to the contrary, other than petitioner's testimony . . . ." Bear Stops v. United States,
204 F. Supp. 2d 1209, 1224 (D.S.D. 2002). We have reviewed the record and see no
need to reiterate the evidence yet again. In the face of the strong admissible evidence,
and given the fact that B.B. testified at trial and there was no evidence of a motive to
fabricate, we conclude that any error in admitting the hearsay evidence in this case
was "harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24
(1967); see also United States v. Burns, 276 F.3d 439, 443 (8th Cir. 2002).
Therefore, any deficiency in appellate counsel's failure to raise the hearsay issue in
the direct appeal did not result in prejudice to the defense because it would not have
altered the result of the proceedings.

                                         III.

       Accordingly, we affirm the district court's judgment denying Bear Stops'
§ 2255 motion to vacate, set aside, or correct his sentence.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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