                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                No. 98-2854-WMKC
                                   ___________


Stanley L. Boysiewick,                 *
                                       *
            Petitioner-Appellee,       *
                                       *
      v.                               * Appeal from the United States
                                       * District Court for the Western
Dora Schriro, Director, Missouri       * District of Missouri.
Department of Corrections; Jeremiah    *
Nixon, Attorney General, Missouri,     *
                                       *
            Respondent-Appellants.     *
                                       *
                                  ___________

                             Submitted: March 8, 1999

                                Filed: June 10, 1999
                                    ___________

Before RICHARD S. ARNOLD and HANSEN, Circuit Judges, and STROM,*
      Senior District Judge.
                                     ___________

STROM, Senior District Judge.

      Stanley L. Boysiewick ("petitioner"), a Missouri inmate, filed a petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for

      *
       The HONORABLE LYLE E. STROM, Senior United States District Judge for
the District of Nebraska, sitting by designation.
the Western District of Missouri after being convicted of statutory rape in Missouri
state court. Petitioner asserted twelve separate claims for relief. The District Court1
denied all claims. Stanley L. Boysiewick v. Dora Schriro and Jeremiah (Jay) Nixon,
No. 97-0094-CV-W-3 (W.D. Mo. May 28, 1998). On the same day, the District Court
entered an order granting petitioner a certificate of appealability on the issues of
application of Missouri's rape shield law, admission of evidence regarding nude
photographs, and judicial bias; and denying a certificate on the remaining issues. Id.
Petitioner appeals the denial of habeas relief based on the three issues set forth in the
certificate of appealability and also argues the District Court erred in its ruling on the
certificate of appealability. For the reasons stated below, we affirm.


                                   BACKGROUND
      In August, 1991, petitioner moved in with Sheila Fisher (“Fisher”) and her
eleven year old daughter, A.F. In February, 1992, A.F. informed Fisher she had sexual
intercourse with Robert Dale Stafford (“Stafford”), a fifty-four year old man that
occasionally stayed at Fisher’s residence. Fisher claims A.F. specifically told her she
had intercourse "with Stafford and no one else." As a result, Fisher restricted several
of A.F.'s privileges, including using the telephone, wearing makeup, having boyfriends,
and attending school functions. On April 7, 1992, A.F. informed a school counselor
petitioner had sexual intercourse with her and that she may be pregnant. Subsequently,
petitioner was charged in state court with the statutory rape of A.F.




      1
        The Honorable Ortrie D. Smith, Unites States District Judge for the Western
District of Missouri, Western Division.
                                           -2-
      Prior to trial and pursuant to MO. REV. STAT. § 491.015 (1986), Missouri's rape
shield law, the state moved to prohibit the defendant from introducing in any manner
evidence of A.F.'s prior sexual conduct. Thereafter, petitioner filed a written motion
as provided in MO. REV. STAT. § 491.015.3 (1986), proposing to offer evidence of
A.F.'s statement to Fisher that she had sexual intercourse with Stafford and no one else.
At the beginning of trial, the trial court held an in camera hearing to resolve the matter.
There, petitioner's attorney argued the evidence of A.F.'s sexual conduct was not being
submitted to establish a negative reputation. Rather, petitioner intended to establish
that Fisher placed A.F. under restrictions because she had sexual intercourse with
Stafford; A.F. despised Fisher's restrictions and wanted to remove herself from Fisher's
home; and, thus, the reason A.F. alleged petitioner had sexual intercourse with her was
to escape the restrictions.2 The trial court ruled that any evidence of, or reference to,
A.F.'s sexual activity with Stafford was prohibited.


      Also before trial, petitioner requested the trial judge recuse herself due to her
previous involvement in A.F.'s juvenile proceeding. Prior to petitioner’s criminal
prosecution, the Missouri Division of Family Services filed a separate action in juvenile
court seeking to place A.F. in a foster home. At that time, the trial judge was assigned
to juvenile court, and she ordered A.F. placed in foster care. The trial judge did not
recuse herself, noting the juvenile court proceeding did not include a hearing and was
merely the equivalent of a probable cause determination.

      2
       Petitioner also argued that A.F.'s statement to the school counselor that she
thought she may be pregnant made her statement admissible under MO. REV. STAT. §
491.015.1(2) (1986), which allows the admission of evidence of specific instances of
sexual conduct showing an alternative source of pregnancy. However, A.F. never was
pregnant and petitioner has not pursued this argument on appeal.
                                            -3-
       At trial, A.F., the state's only witness, testified petitioner had sexual intercourse
with her on three separate occasions between November, 1991, and March, 1992. A.F.
also testified that after the second occasion, petitioner took photographs of her nude.
No such photographs were ever offered and petitioner did not object to A.F.’s
testimony regarding the photographs. However, during his testimony, petitioner denied
ever taking any nude photographs of A.F., but admitted taking and having in his
possession nude photographs of other women.


       On cross-examination, A.F. admitted her strong dislike for the restrictions Fisher
imposed on her and admitted she knew if she complained of sexual activity in the
home, she would be removed. Petitioner's trial counsel also questioned A.F. regarding
a conversation she had with Fisher and petitioner on the evening of the day she had
talked to the school counselor. A.F. stated the conversation was about her being
pregnant, and, with respect to who the father might be, she testified, "I told them I
didn't know because I didn't want to say anything." (Tr. at 127.) Petitioner also
testified about the conversation. When asked if A.F. had ever been alone with anyone,
petitioner stated, "I know she's been -- she used (sic) to go with a friend of the family
out in his truck." (Tr. at 157.)


       Finally, Fisher, who at the time of trial was engaged to petitioner, testified on
petitioner's behalf. Her testimony was essentially an attempt to discredit A.F. and
supply petitioner with an alibi. In the end, the jury found A.F. credible and convicted
petitioner on three counts of statutory rape. Due to a previous statutory rape conviction
in California, the trial court sentenced petitioner to three consecutive fifty year prison
terms. Thereafter, the state court denied petitioner's post trial motions and request for

                                            -4-
postconviction relief. Petitioner appealed and the Missouri Court of Appeals affirmed
both petitioner’s conviction and the subsequent denial of postconviction relief.


                                    DISCUSSION


      We review the District Court's conclusions of law de novo, Carter v. Hopkins,
151 F.3d 872 (8th Cir.), cert. denied, __ U.S. __, 119 S.Ct. 524 (1998), and its factual
findings for clear error. Parkus v. Bowersox, 157 F.3d 1136 (8th Cir. 1998). If an issue
presents a mixed question of law and fact, our review is de novo. Id.


      A.     Rape Shield Law


      Petitioner's first claim for relief is that the application of the Missouri rape shield
law violated his constitutional rights. Specifically, petitioner claims the trial court's
exclusion of A.F.'s purported statement that she had sexual intercourse with Stafford
and no one else denied him of his Sixth and Fourteenth Amendment rights to a
complete defense. Petitioner did not raise this claim in his state court appeal and, as
a result, procedurally defaulted his habeas claim on this issue, unless he shows both
cause for his failure and resulting prejudice. Coleman v. Thompson, 501 U.S. 722, 750
(1991); Nave v. Delo, 62 F.3d 1024, 1032 (8th Cir.1995). Petitioner asserts his
appellate counsel's failure to raise the issue on direct appeal was ineffective assistance
of counsel, negating the procedural default.




                                            -5-
      Ineffective assistance of appellate counsel may constitute cause and prejudice.
Id.; see also Charron v. Gammon, 69 F.3d 851 (8th Cir. 1995). In order to establish
ineffective assistance of counsel,
      [f]irst, the defendant must show that counsel's performance was deficient.
      This requires showing that counsel made errors so serious that counsel
      was not functioning as the "counsel" guaranteed by the Sixth Amendment.
      Second, the defendant must show that the deficient performance
      prejudiced the defense. This requires showing that counsel's errors were
      so serious as to deprive the defendant of a fair trial, a trial whose result
      is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984). Consideration of an ineffective
assistance claim "is guided by the principle that 'judicial scrutiny of counsel's
performance must be highly deferential.'" Parkus, 157 F.3d at 1139 (quoting Strickland,
466 U.S. at 689). Essentially, we must determine whether, in light of all the
circumstances, "counsel's conduct falls within the wide range of reasonable professional
assistance." Id. We do not, however, need to address the performance prong if
petitioner does not affirmatively prove prejudice. Pryor v. Norris, 103 F.3d 710 (8th
Cir. 1996). In order to prove prejudice, petitioner must not simply show "that the
errors had some conceivable effect on the outcome of the proceeding." Id. at 713.
Rather, he must show "that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different." Id. This
requires an examination of the underlying error.




                                          -6-
       Petitioner contends appellate counsel erred by failing to argue that the
application of the rape shield statute3 denied him of his right to a complete defense. It
is well established that the Fourteenth Amendment, along with the Sixth Amendment,
guarantee criminal defendants the opportunity to present a complete defense, including
the right to present relevant testimony. Crane v. Kentucky, 476 U.S. 683 (1986).
However, "the right to present relevant testimony is not without limitation. The right
may, in appropriate cases, bow to accommodate other legitimate interests in the
criminal trial process." Michigan v. Lucas, 500 U.S. 145, 149 (1991)(quoting Rock v.
Arkansas, 483 U.S. 44, 55 (1987)). Such legitimate interests include the traditional
concerns of prejudice and issue and jury confusion, as well as the protection of rape
victims from harassment and unnecessary invasions of privacy. Id. Accordingly, we
must balance the importance of the excluded evidence to petitioner's defense against
A.F.'s interests as a rape victim.


       Petitioner argues the excluded evidence was vital to his defense because it
undermined A.F.'s credibility and was directly exculpatory. In the pretrial motion
proposing to offer the excluded evidence, petitioner's trial attorney asserted A.F.'s
statement to Fisher that she had sexual intercourse with Stafford was necessary to
petitioner's defense in order to explain her further statement that she never had sexual
intercourse with anyone else. However, petitioner's trial counsel changed the defense
theory at trial. In the offer of proof at the beginning of trial, petitioner's trial attorney


       3
       The rape shield statute precludes all "opinion and reputation evidence of the
complaining witness' prior sexual conduct" and, with certain exceptions, "specific
instances of the complaining witness' prior sexual conduct." Mo. Rev. Stat. § 491.015
(1986).
                                             -7-
argued the excluded evidence was necessary to support petitioner's defense theory that
A.F. fabricated the accusations against him in order to escape Fisher's restrictions. This
defense theme was then pursued throughout the trial and argued at summation.
Nevertheless, the trial attorney's decision to change the defense theory is not at issue
here. The issue is whether the importance of the excluded evidence to petitioner's
defense, i.e., A.F. fabricated the accusations in order to escape restrictions, outweighs
A.F.'s interests.


       We agree with the District Court that the evidence excluded was of minimal
importance to petitioner's defense. The critical element of his defense theory was that
A.F. was under restrictions, not the reasons for the restrictions. Both A.F. and Fisher
testified about the nature and duration of the restrictions. Petitioner's trial attorney
elicited testimony regarding A.F.'s attitude towards the restrictions and her knowledge
that accusations of sexual abuse in the home would allow her to escape the restrictions.
The specific reasons for the restrictions were not critical to petitioner's defense.
Furthermore, A.F. allegedly made the excluded statements prior to the last act of sexual
intercourse between her and the petitioner. Thus, they were not completely exculpatory
as petitioner now suggests.


       Finally, petitioner was able to bolster his defense theory through other evidence
presented at trial. For example, there was testimony A.F. at one point thought she
might be pregnant. However, A.F. never stated who she thought the father was, and
petitioner presented evidence A.F. had been alone with another man. Also, Fisher
testified A.F. never told her she ever had sexual intercourse with petitioner or that he
inappropriately touched her. Accordingly, the District Court properly determined the

                                           -8-
importance of the excluded evidence to petitioner's defense did not outweigh A.F.'s
privacy interests as a rape victim as provided by the Missouri legislature. Cf. State v.
Madsen, 772 S.W.2d 656 (Mo. 1989)(en banc), cert. denied, 493 U.S. 1046 (1990).
Thus, appellate counsel was not ineffective because petitioner did not establish a
reasonable probability that, but for appellate counsel's failure to raise the rape shield
issue, the outcome of his appeal would have been different. Consequently, petitioner
fails to show sufficient cause or prejudice to overcome the procedural default of his
habeas claim on this issue.


      B.     Evidence of Nude Photographs


      Petitioner next claims the admission of testimony regarding his photographing
A.F. nude violated his constitutional rights. The District Court, relying on our decision
in Sweet v. Delo, 125 F.3d 1144 (8th Cir. 1997), declined to reach the merits of this
claim because petitioner failed to object to this evidence at trial and, on direct appeal,
the Missouri Court of Appeals only reviewed the issue for plain error. Petitioner
asserts admission of the photographing evidence violated his Sixth and Fourteenth
Amendment right to a fair trial. However, on direct appeal he argued the evidence
should not have been admitted based on state evidentiary law. As we stated in Sweet,
"[r]aising a state-law claim in state court that is merely similar to the constitutional
claim later pressed in a habeas action is insufficient to preserve the latter for federal
review." Id. at 1153. Therefore, we find the District Court correctly concluded that
petitioner defaulted on this claim.




                                           -9-
      In response, petitioner claims his trial attorney was ineffective for failing to
object to the evidence, and argues the trial attorney's ineffectiveness constitutes
sufficient cause and prejudice to excuse his default. The District Court found the trial
attorney provided constitutionally effective assistance of counsel in handling the
photographing evidence. We agree and affirm on that issue for the reasons set forth in
the District Court's order. See 8th R. 47B.


      C.     Judicial Bias


      Petitioner asserts the trial judge was biased due to her involvement in A.F.'s
juvenile court proceeding and her failure to recuse herself violated the Due Process
Clause of the Fourteenth Amendment. We have reviewed the record and petitioner's
submissions and find this claim lacks merit. Cf. United States v. Liteky, 510 U.S. 540
(1994). Accordingly, we affirm the District Court's denial of this claim.


      D.     Certificate of Appealability


       Finally, petitioner appeals the District Court's order granting a certificate of
appealability on only three of his habeas claims. Under the provisions of the
Antiterrorism and Effective Death Penalty Act of 1996, in order for a 28 U.S.C. § 2254
petitioner to obtain a certificate of appealability from a district court, he must make a
substantial showing of the denial of a constitutional right. See 28 U.S.C. S 2253(c)(2).
Petitioner argues the District Court ruled on his certificate of appealability without
providing him notice and opportunity and thereby abused its discretion. We find any
error the District Court committed was harmless. Petitioner briefed the additional

                                          -10-
issues for which he seeks review. In doing so, petitioner failed to make a substantial
showing that he was denied a constitutional right.


      Petitioner also argues the District Court erred in limiting the issues he could raise
on appeal. We have previously found limiting appellate review to qualified issues is
not only required by 28 U.S.C. S 2253(c)(2), it is has long been an accepted practice
in this circuit to review only meritorious issues in habeas cases. See Ramsey v.
Bowersox, 149 F.3d 749 (8th Cir. 1998), cert. denied, __ U.S. __, 119 S.Ct 1083
(1999). We affirm the District Court's ruling on petitioner's certificate of appealability.


                                    CONCLUSION


      For the above reasons, we affirm the District Court's denial of petitioner's request
for writ of habeas corpus.
      A true copy.
             ATTEST:
                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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