                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                                  FEB 1 2005
                                     TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                      Clerk

 SHARON CARR,

          Petitioner-Appellant,
 v.                                                           No. 03-3336
 RICHARD KOERNER,                                     (D.C. No. 01-CV-3342-SAC)
                                                              (D. Kansas)
          Respondent-Appellee.


                                  ORDER AND JUDGMENT*


Before BRISCOE, MURPHY, Circuit Judges, and STEWART, District Judge.**



I. INTRODUCTION

      Petitioner Sharon Carr appeals the district court’s denial of her Petition for a Writ

of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254. We granted a Certificate of

Appealability on two grounds, namely (1) whether alleged error in the introduction of

hearsay violated the Confrontation Clause of the Sixth Amendment, and (2) whether



      *
               This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
               The Honorable Ted Stewart, District Judge, District of Utah, sitting by
designation.
alleged ineffective assistance of counsel violated Petitioner’s Sixth and Fourteenth

Amendment rights. We now affirm the district court’s decision.

II. PROCEDURAL HISTORY

         On September 27, 1996, Petitioner was convicted by a jury in the district court of

Sedgwick County, Kansas, of first-degree felony murder in the death of her adopted

three-year-old daughter, Shayleen. Petitioner was sentenced to life in prison and

subsequently sought, but was denied, appeal at several levels. First, Petitioner sought

rehearing with the state trial court, which was denied on July 10, 1998. Second,

Petitioner filed a direct appeal to the Kansas Supreme Court where her conviction was

affirmed on July 10, 1998. Third, Petitioner sought post-conviction relief with the state

trial court, which denied her petition on November 17, 2000. The trial court further

denied Petitioner’s Request for Rehearing. Fourth, Petitioner sought appellate review of

the denial of her petition for post-conviction relief with the Court of Appeals for the State

of Kansas, which affirmed the state trial court’s denial on February 23, 2001. Motion for

Rehearing was denied, as well as subsequent review by the Kansas Supreme Court. Fifth,

Petitioner filed a Writ of Habeas Corpus under 28 U.S.C. § 2254 with the United States

District Court for the District of Kansas, which denied the petition on October 15, 2003.

We granted appeal.




                                             -2-
III. BACKGROUND

       The predicate felony underlying Petitioner’s conviction is based on an incident of

child abuse. The incident occurred on September 7, 1995, when Shayleen was

hospitalized for various serious injuries. Shayleen died from the injuries four days after

admission to the hospital. Petitioner’s four-year-old son, Jared Carr, was present in the

home at the time Shayleen was injured and was able to observe Petitioner and Shayleen.

       On the second day of trial, the trial court held a hearing outside the presence of the

jury to determine whether or not Jared was competent to testify before the jury. Jared was

questioned in the courtroom by the attorneys and the judge, and the trial court heard

arguments of counsel. The trial court then ruled that Jared was not qualified to testify

because he was unable to comprehend the concept of taking an oath, and was “incapable

of expressing himself on the matter so as to be understood” by the judge and the jury.

The trial judge noted that many of Jared’s answers were “nonresponsive.” However, the

judge emphasized he had not found that Jared was untruthful or that Jared didn’t know

the difference between a truth and a lie. The finding was that Jared was incompetent to

testify, which rendered him “unavailable as a witness.”

       In light of this finding by the trial judge, the State requested that two other

witnesses – social worker Adella Ozor, and Jenny McCracken, a registered nurse at the

pediatric intensive care unit at the hospital – be allowed to testify as to statements Jared

made outside the courtroom. These statements implicated Petitioner as the cause of


                                              -3-
Shayleen’s injuries. The statements were allowed by the trial court—after Confrontation

Clause analysis—under the excited utterance and recent perception hearsay exceptions.1

Defendant’s counsel did not object contemporaneously to the introduction of this

evidence.

       The trial judge found that he had “no difficulty” finding that Jared was

“unavailable,” as defined in Kan. Stat. Ann. § 60-459(g), that his statements were made at

a time when the matter had been recently perceived by him and his recollection was clear,

and that the statements were made in good faith prior to the commencement of the action

and with no incentive to falsify or distort. The trial court went on to say that its

determination did not end with this statutory analysis, but also required a constitutional

analysis because the unavailable witness rule was “not considered a firmly-rooted

exception to the hearsay rule,” and allowing hearsay would deny Petitioner her right to

confrontation under the Kansas and United States constitutions. The trial court engaged

in an analysis of the factors contained in Idaho v. Wright, 497 U.S. 805 (1990), and

concluded that the testimony was admissible. The testimony was allowed at trial, and a

conviction was ultimately obtained.

       As part of its affirmation of the trial court’s ruling, the Kansas Supreme Court held

that under the doctrine of procedural default, this failure by Petitioner’s trial counsel to




       1
              Kan. Stat. Ann. § 60-460(d)(2), (3).

                                              -4-
object contemporaneously foreclosed any subsequent claim that the court improperly

allowed hearsay evidence at trial.

       Petitioner sought several issues on appeal, but only two were granted review by

this Court: (1) whether admission of Petitioner’s unavailable minor child’s hearsay

statements violated the Confrontation Clause of the Sixth Amendment, and (2) whether

Petitioner’s trial counsel was ineffective through failing to object to hearsay to such a

degree that Petitioner’s Sixth and Fourteenth Amendment rights were violated.

IV. STANDARD OF REVIEW

       The district court’s denial of Carr’s petition for habeas relief is reviewed de novo

with respect to legal conclusions and under a clear error standard for factual findings.

Rogers v. Gibson, 173 F.3d 1278, 1282 (10th Cir. 1999).

       On review of habeas corpus determinations, the ruling below must be left

undisturbed unless an independent review of the record and pertinent federal law leads to

the conclusion that the ruling “contravenes or unreasonably applies clearly established

federal law, or is based on an unreasonable determination of the facts in light of the

evidence presented.” Aycox v. Lytel, 196 F.3d 1174, 1178 (10th Cir. 1999). Even if the

federal habeas court concludes in its independent review that the state court decision

applied clearly established federal law incorrectly, relief is appropriate only if the

application is also objectively unreasonable. Williams v. Taylor, 529 U.S. 362 (2000).

The court is not to re-weigh the evidence or substitute its judgment for the judgment of


                                              -5-
the court below, and is bound by a state court’s interpretation of its own law. Estelle v.

McGuire, 502 U.S. 62, 67-68 (1991). We proceed under this standard of review.



V. DISCUSSION

A. The Procedural Default Doctrine

       The procedural default doctrine precludes federal habeas review of a federal claim

that a state court has declined to consider due to the Petitioner’s noncompliance with state

procedural rules unless Petitioner can show: (1) both cause and prejudice, and (2)

manifest injustice. Coleman v. Thompson, 501 U.S. 722, 750 (1991).

       Further, in order for the bar to preclude consideration of a federal claim on habeas

review, the state procedural rule must be: (1) independent, and (2) adequate. The rule is

independent if the last state court that rendered a judgment in the case clearly and

expressly stated that its decision rested upon a procedural bar. Church v. Sullivan, 942

F.2d 1501, 1506 (10th Cir. 1991) (relying upon Harris v. Reed, 489 U.S. 255 (1989)).

The rule is adequate if it is “strictly or regularly followed.” Johnson v. Mississippi, 486

U.S. 578, 587 (1988). This rule has been routinely followed in Kansas state courts. See

Kan. Stat. Ann. § 60-404. Here, the Kansas Supreme Court expressly declined to

consider the merits of this issue due to counsel’s failure to contemporaneously object.

Therefore, it is clear that the rule is both independent and adequate in this case.




                                             -6-
       Petitioner concedes that because the Kansas Supreme Court held that Petitioner

procedurally defaulted her claim regarding Jared’s hearsay statements, the Petitioner faces

procedural default in this forum, unless she is able to show cause excusing the default, as

set forth in Coleman.

       Petitioner argues that her trial counsel’s failure to contemporaneously object

amounts to ineffective assistance of counsel and that ineffective assistance satisfies the

Coleman test above. “Ineffective assistance of counsel . . . is cause for [reviewing] a

procedural default” of a state court procedure in federal habeas proceedings. Murray v.

Carrier, 477 U.S. 478, 488 (1986). Therefore, if the court finds that ineffective

assistance of counsel occurred, the procedural bar is lifted, and the court may reach the

merits regarding the admission of Jared’s hearsay statements. However, counsel error

that does not rise to the degree of ineffective assistance of counsel, may not amount to

cause to relieve a procedural default. “[T]he mere fact that counsel failed to recognize

the factual or legal basis for a claim, or failed to raise the claim despite recognizing it,

does not constitute cause for a [review of] procedural default.” Id. at 486.

       Aside from Petitioner’s claim of ineffective assistance of her trial counsel, Plaintiff

has not raised grounds establishing that the Coleman factors are met in this case,

especially in light of the significant and persuasive evidence presented at trial, when

viewed in its totality. We, therefore, turn to Petitioner’s claim of ineffective assistance of

counsel as it relates to satisfaction of the otherwise-applicable procedural bar in this case.


                                              -7-
B. Ineffective Assistance of Counsel

       Petitioner argues that she received ineffective assistance of trial counsel in

violation of her Sixth and Fourteenth Amendment rights. This contention is based on the

fact that trial counsel failed to preserve the issue of admissibility of Jared’s hearsay

statements by failing to lodge a contemporaneous objection to the admission of those

statements at trial.

       To demonstrate ineffectiveness of counsel, Petitioner must generally show: (1)

that counsel’s performance fell below an objective standard of reasonableness (i.e.

deficient), and (2) that counsel’s deficient performance was prejudicial. Strickland v.

Washington, 466 U.S. 668, 687, 690) (1984), cited by United States v. Lopez, 100 F.3d

113, 117 (10th Cir. 1996). In order to meet the first element, there must be “a showing

that counsel made errors so serious that counsel was not functioning as the ‘counsel’

guaranteed by the Sixth Amendment.” Strickland, 466 U.S. at 687. Petitioner must show

that her counsel’s conduct did not fall within the range of competence demanded of an

attorney in a criminal case. Id. at 689; United States v. Carr, 80 F.3d 413, 417 (10th Cir.

1996). However, courts are to review such claims with a strong initial presumption that

counsel conduct falls within this acceptable range, thereby eliminating the “distorting

effects of hindsight.” Strickland, 466 U.S. at 688-89; Carr, 80 F.3d at 417. With regard

to the second element, Petitioner must show that counsel’s errors were “so serious as to

deprive [her] of a fair [proceeding in which the] result is reliable.” Strickland, 466 U.S.


                                              -8-
at 687. The element is satisfied when there is a “reasonable probability that, but for the

alleged errors, the results of the proceedings would have been different.” Id. at 695.

       Petitioner’s argument that counsel rendered ineffective assistance through failure

to preserve the hearsay argument through contemporaneous objection does not rise to a

violation of the Sixth Amendment in this instance. Petitioner has failed to show that the

introduction of the statements were so prejudicial as to change the outcome of the trial.

Petitioner has not met the second prong of the Strickland analysis. Because Petitioner

fails to show ineffective assistance of counsel, Petitioner also fails to show counsel’s

actions rose to such a level of error so as to remove the procedural bar.

       Having held that the procedural bar applies to this case, the Court will not further

consider Petitioner’s remaining claim regarding hearsay.

VI. CONCLUSION

       For the reasons set forth above, we affirm the district court’s decision and find that

Petitioner’s Sixth and Fourteenth Amendment rights were not violated by her counsel’s

failure to contemporaneously object to the admission of her son’s statements.

       For the foregoing reasons, the district court’s denial of Petitioner’s § 2255 habeas

petition is AFFIRMED.

                                                   Entered for the Court


                                                   Ted Stewart
                                                   District Judge


                                             -9-
No. 03-3336, Carr v. Koerner

BRISCOE, Circuit Judge, concurring.

       In my view, Carr is not procedurally barred from challenging the admission of

Jared’s out-of-court statements. However, I conclude the admission of those statements,

even if improper, was harmless. I therefore agree with the majority that the district court

properly denied Carr’s habeas petition.

                                              I.

       Carr contends the trial court violated her rights under the Fifth, Sixth, and

Fourteenth Amendments when it admitted into evidence out-of-court statements made by

Jared to Adella Ozor, a state-employed social worker/investigator, and Jenny McCracken,

a registered nurse who worked in the pediatric intensive care unit where Shayleen stayed

immediately prior to her death. Carr first raised this issue on direct appeal. The Kansas

Supreme Court, in addressing the issue, began by outlining the precise nature of the

challenged statements:

          Ozor interviewed Jared at his emergency foster home on September 8,
       1995, at approximately 2 p.m. the day after Shayleen was injured. She
       described Jared as concerned, excitable, and fidgety. Ozor explained to
       Jared that she was there to find out what had happened. When she asked if
       he and Shayleen slept in different bedrooms, Jared stated that Shayleen takes
       bad naps but he takes good naps, and that “Mama bumps our heads all the
       time” and when asked how, stated, “Mama throws Shayleen down on the
       floor a lot.” He then beat a doll on the floor several times, and when asked
       what Shayleen does he stated that she cries and that his mom slaps her across
       the face.

          McCracken was the nurse caring for Shayleen. When Jared visited
       Shayleen on September 12, 1995, McCracken testified that Jared entered the
       room, approached Shayleen’s bed, and touched her. He sat on Shayleen’s
      bed, and someone explained to him that Shayleen was very sick and might
      not live. Jared nodded his head. He volunteered that children who die
      cannot play or run anymore. He then said, “[O]h, God, I’m sorry.”
      McCracken offered to read Jared one of the books on Shayleen’s bed. As
      she read the book, he took a stuffed doll with a sunflower face and threw the
      doll on the floor. He then stated, “Look, the doll’s eyes did not roll back in
      its head.” McCracken then asked Jared if Shayleen’s eyes had rolled back in
      her head before she came to the hospital, and he indicated that they had.
      Later, he threw the doll to the floor again.

State v. Carr, 963 P.2d 421, 430 (Kan. 1998).

      The Kansas Supreme Court ultimately concluded the issue was not adequately

preserved for appellate review:

          The State contends that the defendant failed to object at trial and
      therefore the issue of admissibility is not properly before us. The record
      supports this contention. A hearing outside the presence of the jury was held
      on whether Jared was competent to testify, and the court ruled that he was
      not. As a result, the court held a hearing at the request of the State as to
      whether certain hearsay statements could be admitted. After a thorough
      hearing, the court reserved ruling on the issue pending further consideration
      of the parties’ arguments and authorities. Three days later, the court ruled
      that the hearsay testimony was admissible under K.S.A. 60-460(d)(2) and
      (3). On the second day after the court’s ruling, the hearsay statements were
      introduced without the objection of the defendant.

          At the time these statements were admitted at trial, no contemporaneous
      objection was made by the defendant. The defendant contends that her
      objection to the testimony was sufficiently noted, citing State v. Bowman,
      252 Kan. 883, 887-88, 850 P.2d 236 (1993). In Bowman, we held that a
      defendant satisfied the contemporaneous objection rule when he objected
      prior to the testimony and the testimony was then admitted directly
      afterward. 252 Kan. at 888, 850 P.2d 236. However, the facts in this case
      are quite different. Here, a full 2 days of trial elapsed before the State
      attempted introduction of the statements. We have held that the failure to
      timely object at trial to alleged hearsay statements precludes the defendant
      from raising the issue on appeal. State v. Stafford, 255 Kan. 807, 810-11,
      878 P.2d 820 (1994). Moreover, we have held that when an unfavorable

                                           -2-
       ruling on an evidentiary question is received prior to trial, the party must
       make a timely objection to such evidence when it is introduced at trial in
       order to preserve the issue for appeal. State v. Peckham, 255 Kan. 310, 327,
       875 P.2d 257 (1994).

          While we acknowledge that the ruling on admissibility of the hearsay
       statements occurred during rather than prior to trial, a full 3 days elapsed
       between the ruling and the actual introduction of the evidence. Under the
       circumstances, in the absence of a contemporaneous objection, the question
       of admissibility of the hearsay statements was not preserved for review and
       may be deemed to have been waived by the defendant.

Carr, 963 P.2d at 430-31.

       In light of the Kansas Supreme Court’s ruling, respondent contends the issue is

procedurally barred for purposes of federal habeas review. We will not review a state

habeas petitioner’s claims if they were defaulted in state court on independent and

adequate state procedural grounds, unless the petitioner can demonstrate cause and

prejudice or a fundamental miscarriage of justice. Smith v. Mullin, 379 F.3d 919, 925

(10th Cir. 2004). Here, the rule cited by the Kansas Supreme Court in Carr was clearly

independent, because it was based exclusively on Kansas state law (i.e., the Kansas

Supreme Court’s own decisions concerning when an objection must be asserted to the

admission of evidence in order to preserve the issue for purposes of appeal). See Smith,

379 F.3d at 925 (“Independent state procedural grounds are those that rely exclusively on

state law as a basis of decision.”). The more troublesome question is whether the rule was

“adequate.” Under Tenth Circuit case law, a state procedural rule is considered




                                            -3-
“adequate” if it is “consistently and evenhandedly . . . applie[d]” by the state courts at

issue. Id.; State v. Mays, 85 P.3d 1208, 1225 (Kan. 2004) (applying same rule).

       At the time of Carr’s trial, it was well established, both by statute and by rulings

from the Kansas Supreme Court, that a specific and timely objection to the admission of

evidence was necessary to preserve the issue for appeal. E.g., Kan. Stat. Ann. § 60-404

(“A verdict . . . shall not be set aside . . . by reason of the erroneous admission of evidence

unless there appears of record objection to the evidence timely interposed and so stated as

to make clear the specific ground of objection.”). With regard to the timeliness

requirement, the general rule appeared to be that a defendant had to assert an objection at

trial in order to preserve an issue for appeal. For example, in State v. Peckham, 875 P.2d

257, 270 (1994), the Kansas Supreme Court held that “[w]hen an unfavorable ruling on an

evidentiary question prior to trial is received, a party must make a timely objection to such

evidence when introduced at trial in order to preserve the issue for appeal.” Thus, even

though the defendant in Peckham filed a motion in limine objecting to the admission of

certain evidence and received an unfavorable pretrial ruling on that motion, the Kansas

Supreme Court held that he subsequently waived the issue for purposes of appeal by

failing “to make a contemporaneous objection during trial as the evidence objected to was

introduced.” Id. (emphasis added); see also State v. Johnson, 899 P.2d 1050 (Kan. 1995)

(concluding that admission of defendant’s confession was not reviewable on appeal where

defense failed to renew objection during trial); State v. Alford, 896 P.2d 1059 (Kan. 1995)


                                              -4-
(holding that admissibility of written statement not properly before the court on appeal

where defense asserted a pretrial objection, but failed to object during trial); State v.

Johnson, 874 P.2d 623 (Kan. 1994) (holding that failure to object to evidence at trial did

not preserve issue denied in earlier motion in limine).

       What was unclear under Kansas law, however, was precisely how close in time to

the admission of the evidence at trial the objection had to be made. Stated differently, it

was unclear whether an objection asserted at some point during trial was sufficient to

preserve the issue, or whether, instead, an objection had to be made at or very near the

time the evidence at issue was actually admitted. Here, the prosecution proposed

introducing Jared’s out-of-court statements on the second day of trial (9/18/96). At that

time, Carr’s trial counsel vigorously opposed the admission of those statements. The trial

court subsequently conducted a hearing on the issue on the fourth day of trial (9/20/96),

out of the presence of the jury. Carr’s trial counsel again vigorously opposed admission of

the out-of-court statements. On the fifth day of trial (9/23/96), the trial court ruled on the

issue, concluding the out-of-court statements were admissible under Kansas law and were

sufficiently reliable for constitutional purposes. Two days later, the seventh day of trial

(9/25/96), the prosecution actually introduced Jared’s out-of-court statements. Carr’s trial

counsel asserted no objection at that time. Presumably, Carr’s trial counsel concluded,

based upon existing Kansas law, that it was unnecessary to again object to the evidence,




                                              -5-
since he had already voiced specific objections thereto and the issue had been conclusively

ruled on by the trial court.

       In Carr, the Kansas Supreme Court effectively adopted a new requirement for

preserving an objection to the admission of evidence: not only must a defendant assert his

or her objections at trial, he or she must do so at the precise time the objected-to evidence

is introduced. In other words, the Kansas Supreme Court held that it was not enough, as

was the case here, for a defendant to assert specific objections to evidence at some other

point during trial and receive a conclusive ruling on the objections from the trial court.

Instead, the Court held, under such circumstances a defendant must reassert his or her

objections at the time the evidence is actually introduced, even if doing so amounts to a

perfunctory act. Notably, in adopting this position, the Kansas Supreme Court cited to no

prior Kansas decisions in which a similar rule had been applied.

       In light of the fact that the rule applied by the Kansas Supreme Court in Carr had

never previously been announced or applied, I conclude the rule cannot be considered a

“firmly established and regularly followed state practice” for purposes of the procedural

bar issue in these federal habeas proceedings. James v. Kentucky, 466 U.S. 341, 348

(1984); see Messer v. Roberts, 74 F.3d 1009, 1016 (10th Cir. 1996) (concluding that

procedural rule applied by Kansas Supreme Court, requiring a defendant who

unsuccessfully moved to suppress evidence prior to trial to reassert his or her objection at

trial, “was not so firmly established and regularly followed to constitute a bar” for


                                             -6-
purposes of federal habeas review). In turn, I conclude that Carr is not procedurally barred

in these federal habeas proceedings from challenging the admission of Jared’s out-of-court

statements.

                                             II.

       I now turn to Carr’s objection to the admission of Jared’s out-of-court statements,

applying a de novo standard of review. See Turrentine v. Mullin, 390 F.3d 1181, 1189

(10th Cir. 2004) (outlining the standard of review “where the state court has not previously

heard a habeas claim on the merits”). Carr’s central objection to the admission of the

statements is that her rights under the Sixth Amendment’s Confrontation Clause were

violated. At the time of Carr’s trial and her direct appeal, Ohio v. Roberts, 448 U.S. 56

(1980), was the primary Supreme Court case regarding “the relationship between the

Confrontation Clause and the hearsay rule . . . .” Id. at 62. In Roberts, the Supreme Court

held that “when a hearsay declarant is not present for cross-examination at trial, the

Confrontation Clause normally requires a showing that he is unavailable.” Id. at 66.

“Even then,” the Court noted, “his statement is admissible only if it bears adequate ‘indicia

of reliability.’” Id. According to the Court, “[r]eliability can be inferred without more in a

case where the evidence falls within a firmly rooted hearsay exception.” Id. “In other

cases,” the Court held, “the evidence must be excluded, at least absent a showing of

particularized guarantees of trustworthiness.” Id.




                                             -7-
          The trial court in Carr’s case correctly determined that Roberts provided the

controlling framework for its analysis of whether Jared’s out-of-court statements were

constitutionally admissible. In applying Roberts, the trial court first concluded that Jared

was “unavailable” to testify because, in the trial court’s view, he was incapable of

expressing himself concerning the matters at issue or understanding the duty of a witness

to tell the truth. App., Vol. V at 4. Second, the trial court concluded that Jared’s out-of-

court statements were admissible under Kansas law, i.e., Kan. Stat. Ann. § 60-460(d)(3)

(providing that an out-of-court statement is admissible if “the judge finds [it] was made . .

. by the declarant at a time when the matter had been recently perceived by the declarant

and while the declarant’s recollection was clear and was made in good faith prior to the

commencement of the action and with no incentive to falsify or to distort”). Because,

however, the trial court concluded that the exception relied upon under Kansas law was

“not a firmly-rooted hearsay exception” for purposes of Roberts, id. at 5-6, it proceeded to

analyze whether Jared’s out-of-court statements contained adequate indicia of reliability

and particularized guarantees of trustworthiness. Id. at 6-7. In doing so, the trial court

stated:

          The Court notes that the statements occurred one day and five days after
          Shayleen’s injury, or at least the final injury that sent her to the hospital. The
          Court notes that the language and vocabulary attributed to Jared is
          appropriate for that of a four-year-old child. The Court notes that the
          statements made by Jared were made about his mother, whom you would
          expect Jared would have had a good relationship with. The Court notes that
          Jared’s statements are corroborated by evidence in this case in that we know
          Jared was in the house at the time of the injury, and perhaps even in the same

                                                 -8-
       bedroom. The Court notes that the statements about Shayleen’s injuries are
       certainly corroborated by all of the physical evidence we have in this case as
       to Shayleen’s injuries. The Court notes that there is really no evidence of
       anyone influencing Jared to distort the event, especially in the short time
       between the event and the statements. * * * The Court notes consistent
       repetition with Jared’s statements. * * * As to spontaneous nature, I’d like to
       break down the two statements in particular. First of all, the statements
       made to Adella Ozor on September 8th. It can’t be said that that statement is
       spontaneous. It was the result of an interview. But, the Court notes that the
       questions certainly weren’t leading, and the Court also notes that [Jared]
       volunteered a lot of information and expanded over what was asked of him.
       * * * So, in summary, although those remarks were made as a result of an
       interview, the Court finds that the questions were not leading, and a lot of
       [Jared’s] responses were volunteered and expanded upon the specific
       question that was asked of him. Turning to the statement in the hospital
       room on September 12th, the Court notes that that statement is somewhat
       spontaneous. The evidence indicated that Jared was just in the hospital and,
       suddenly, he threw a doll down on the floor and said something like “Look,
       the doll’s eyes don’t roll back like Shayleen’s did.” No one had even been
       talking about anything like that when Jared did that. * * * In the final
       analysis, the Court needs to make a judgment on trustworthiness, to
       determine if any hearsay evidence should be admitted, regardless of what the
       exception might be. For all the reasons I’ve stated, the Court finds that the
       two particular statements we’re talking about contain adequate indicia of
       reliability and particularized guarantees of trustworthiness . . . .

Id. at 7-11. Based upon these findings, the trial court concluded that the out-of-court

statements were admissible under Roberts. Id. at 11.

       In addressing Carr’s appeal of the denial of his § 60-1507 motion, the Kansas Court

of Appeals concluded, after reviewing the record, that it was “clear that the [trial] court’s

action in admitting these [out-of-court] statements was not arbitrary, fanciful, or

unreasonable, but was made after careful consideration of the issue.” Id., Vol. XIII at 203.

In reaching this conclusion, however, it is obvious that the Kansas Court of Appeals was


                                              -9-
only applying the abuse of discretion standard applicable under Kansas law when a

defendant challenges the admission of evidence under Kansas state law. E.g.,State v.

Jenkins, 39 P.3d 47, 56 (Kan. 2002) (“The admission of evidence lies within the sound

discretion of the trial court.”). Importantly, there is no indication that the Kansas Court of

Appeals actually addressed, or intended to address, Carr’s Sixth Amendment challenge to

admission of the out-of-court statements.

       Addressing that issue de novo, I conclude there was at least one significant flaw in

the trial court’s analysis of whether the out-of-court statements were reliable. As the trial

court’s statements on the record indicate, it placed heavy reliance on the fact that the out-

of-court statements were corroborated by (1) “evidence in this case in that we know Jared

was in the house at the time of the injury, and perhaps even in the same bedroom,” and (2)

“all of the physical evidence we have in this case as to Shayleen’s injuries.” App., Vol. V

at 7-8. The problem with this reliance on corroborating evidence is that it is contrary to

the decision in Idaho v. Wright, 497 U.S. 805 (1990). In Wright, the Supreme Court held

that corroborating evidence cannot be used to support the reliability of a hearsay statement

for purposes of the Roberts analysis. Id. at 822. More specifically, the Court emphasized

that, “[t]o be admissible under the Confrontation Clause, hearsay evidence used to convict

a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not

by reference to other evidence at trial.” Id. Thus, one of the substantial bases relied upon




                                             -10-
by the trial court in concluding that the out-of-court statements at issue were reliable was

improper.1

       Assuming, then, that the admission of Jared’s out-of-court statements was contrary

to Roberts and thus violated Carr’s rights under the Confrontation Clause, the question is

whether the resulting error entitles Carr to federal habeas relief. “[T]he appropriate

harmless error standard to be applied on habeas review is from” Brecht v. Abrahamson,

507 U.S. 619 (1993). Webber v. Scott, 390 F.3d 1169, 1177 (10th Cir. 2004). Under

Brecht, federal habeas relief is not proper unless the error had a “substantial and injurious

effect or influence in determining the jury’s verdict.” 507 U.S. at 623.

       Applying that standard here, I conclude the admission of Jared’s out-of-court

statements was, indeed, harmless. The prosecution’s case-in-chief against Carr lasted for

approximately six days and included approximately sixteen witnesses. One witness, a

long-time friend of Carr, testified that Carr was a strict disciplinarian with Shayleen and

Jared, and on one occasion stated that “to get the kids’ attention she had to hurt them.”

App., Vol. II at 156. Three fact witnesses, a nurse who worked at the minor emergency

center where Carr first took Shayleen and two emergency medical workers who

transported Shayleen from there to the hospital, testified that they observed bruises on


        1
         Taking away the trial court’s reliance on corroborating evidence leaves only (a)
the relative spontaneity of the statements, (b) the fact that they occurred relatively close in
time to the injuries sustained by Shayleen, and (c) the fact that the language and
vocabulary used by Jared appeared consistent with that generally used by a four-year-old
child.

                                             -11-
Shayleen’s ears, neck, elbow, and lower right leg, as well as blood in the corner of

Shayleen’s mouth. Id., Vol. X at 6, 31, 40. Two of these same witnesses testified that

Carr was very quiet and unemotional, and did not ask any questions about what was

happening to Shayleen, all of which, in their experiences, was atypical. Id. at 7, 32. Two

different fact witnesses, a detective with the Wichita Police Department and a social

worker and investigator with the Kansas Department of Social and Rehabilitation Services,

testified that they separately interviewed Carr after Shayleen was admitted to the hospital.

During both interviews, Carr admitted (after first indicating that Shayleen had merely

rolled off her bed onto the floor) to having spanked and shaken Shayleen out of frustration

that Shayleen had refused to take a nap. Id., Vol. II at 80-82, 94, 100–02. Three

physicians, two of whom saw Shayleen after she was admitted to the hospital and prior to

her death, and one whom performed the autopsy on her following her death, testified about

her injuries. All three agreed that Shayleen was the victim of “shaken impact” or “shaken

baby blunt trauma” syndrome, in which a child is shaken against a fixed surface such as a

floor or wall. Id., Vol. III at 69, 92, 150, 168. Their opinions were based on the

constellation of symptoms exhibited by Shayleen and the results of medical testing and

autopsy (with particular emphasis placed upon the fact that Shayleen exhibited significant

retinal and subdural hemorrhaging).

       In her defense, Carr presented seven witnesses. Four of these witnesses were state

employees who were involved with the Carrs’ adoption of Jared and Shayleen. None of


                                            -12-
these witnesses had any knowledge about the events in question; instead, they simply

testified to what they observed at the Carr household in the general time period prior to

Shayleen’s death. One of the witnesses was Carr’s husband (now ex-husband), who

testified that Carr was a nurturing and caring mother who, in his experience, had never

been violent with their children. Carr also called Shayleen’s pediatrician as a defense

witness. He testified that, during his visits with Shayleen, he observed no pattern of abuse.

Finally, Carr presented testimony from the associate medical examiner of Palm Beach

County, Florida. He disagreed with the prosecution’s expert witnesses that Shayleen was a

victim of shaken impact syndrome. App., Vol. VI at 71-75. Instead, he opined that

Shayleen died from a “remote subdural hematoma,” i.e., a subdural hematoma that had

occurred sometime previously in Shayleen’s life, and that had “re-bled,” perhaps as a

result of Shayleen falling out of bed. Id. at 12, 31, 96.

       In rebuttal, the prosecution presented testimony from two additional doctors who

consulted on Shayleen’s case after her admission to the hospital. The first doctor testified,

in contrast to the defense expert, that Shayleen had not suffered from any subdural

hematomas. Id., Vol. VIII at 107. He further testified that there were far more bruises on

Shayleen’s body than would be expected from a normal, active child. Id. at 104. The

second doctor, an ophthalmologist specializing in retinal diseases, testified that retinal

hemorrhaging, such as that observed in Shayleen, “almost always” occurs as a result of

head trauma. Id. at 116-17. Finally, the prosecution presented testimony from a



                                             -13-
paramedic that none of the bruises on Shayleen’s body occurred as a result of the

paramedics’ handling of her prior to her admission to the hospital (this was in response to

a suggestion by Carr’s husband that the paramedics were rough with Shayleen). Id. at

132-33.

       During deliberations, the jury asked to have the testimony of three witnesses reread

to them. All three of these witnesses (Carr’s husband, a nurse who was on duty at the time

Shayleen arrived at the minor emergency center, and a paramedic who helped transport

Shayleen from the minor emergency center to the hospital) testified regarding the extent of

bruising that was apparent on Shayleen’s body at the time she initially arrived at the minor

emergency center. Thus, in arriving at its verdict, it appears that a central focus of the jury

was whether Shayleen had, in fact, been physically abused by Carr prior to her arrival at

the minor emergency center.

       Although Jared’s out-of-court statements certainly lent support to the prosecution’s

theory that Shayleen’s injuries occurred as a result of abuse by Carr, I am not persuaded

they were a pivotal piece of evidence in the case. Rather, the statements merely helped to

verify what the prosecution’s evidence (particularly the physical evidence of Shayleen’s

injuries and the opinions of the prosecution’s physicians) otherwise strongly suggested,

i.e., that Carr not only spanked and shook Shayleen, but also at some point struck her head

against a hard object (verified by Jared to be the floor of their house). In the end, given

the weight of the evidence against Carr, much of which corroborated Jared’s out-of-court



                                             -14-
statements, I conclude the admission of the statements did not have a “substantial and

injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 623.

                                                III.

       I also conclude there is no merit to Carr’s ineffective assistance of counsel claim.

Because the “contemporaneous objection” rule announced by the Kansas Supreme Court

in Carr was not firmly established and regularly followed at the time of Carr’s trial, Carr’s

trial counsel cannot be faulted for failing to restate his objections to the out-of-court

statements at the precise time they were admitted, since he had already specifically voiced

those objections during trial and the trial court, after hearing evidence and argument, had

conclusively ruled on the issue. See generally Strickland v. Washington, 466 U.S. 668,

687 (1984) (discussing first prong of the test for ineffective assistance of counsel). Nor,

for the reasons outlined above, can Carr establish prejudice arising out of her counsel’s

failure to object to the out-of-court statements at the precise time they were admitted. See

id. at 694 (discussing second prong of test).




                                                -15-
