                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                        August 27, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
IMHOTEP SA’RA,

             Petitioner-Appellant,

v.                                                          No. 12-1362
                                                  (D.C. No. 1:11-CV-03255-RPM)
RICK RAEMISCH, Executive Director,                           (D. Colo.)
Colorado Department of Corrections;*
PAMELA PLOUGHE, Warden, Colorado
Territorial Correctional Facility; JOHN
SUTHERS, Attorney General, State of
Colorado,

             Respondents-Appellees.


                            ORDER AND JUDGMENT


Before HOLMES, HOLLOWAY, and BACHARACH, Circuit Judges.


      Mr. Imhotep Sa’Ra was convicted in Colorado state court of sexual assault,

false imprisonment, first-degree criminal trespass, and third-degree assault on his

wife, Ms. Lori McVea. In an application for post-conviction relief, Sa’Ra argued

that his attorney had provided ineffective assistance by failing to investigate and call

*
       In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure,
Rick Raemisch is substituted for Roger Werholtz as a respondent-appellee in this
action.

      This order and judgment does not constitute precedent. See 10th Cir. R.
32.1(A).
a particular witness at trial. The court denied relief, and Sa’Ra filed a federal habeas

petition in district court. Again unsuccessful, he appeals the ruling on his

ineffective-assistance claim. The federal district court held that the legal

representation was deficient, but was not prejudicial. We affirm, but disagree with

the district court’s conclusion that the legal representation had been deficient. We

hold:

        ●     The state appellate court reasonably determined that Sa’Ra’s trial
              attorney had not performed deficiently; and

        ●     even if the legal representation had been deficient, the alleged omissions
              would not have been prejudicial.

                                     BACKGROUND

        In addressing the ineffective-assistance claims, we begin with the background.

The pertinent background consists of:

        ●     what took place at trial and in the direct appeal,

        ●     the evidence presented in state post-conviction proceedings, and

        ●     what took place in the federal habeas proceedings.

I.      The Trial and the Direct Appeal

        McVea testified that Sa’Ra had entered her apartment and forcibly raped her

when she refused to have sex. Afterward, Sa’Ra left and McVea called 911. The

responding officer testified that when he arrived, McVea was hysterical, crying, and

saying she had been raped.




                                           -2-
      She was taken to a hospital, where she was examined. The physician doing the

examination testified that McVea “had a small contusion or a bruise to the right side

of her nose, she had a small abrasion or scrape to her left knee, and she had a small

tear in the skin just below her vagina” that could have been caused by “vigorous

consensual sex,” “vigorous nonconsensual sex,” or “lack of lubrication prior to

intercourse.” Aplt. Appendix, Vol. I at 78, 90. During the examination, medical

personnel took DNA samples that forensic experts later matched with Sa’Ra’s.

      Sa’Ra’s defense theory was that he maintained a consensual sexual

relationship with McVea while they were estranged and that McVea was jealous

because Sa’Ra was seeing another woman (Ms. Renee Singleton). In support of that

theory, Sa’Ra’s sister, Ms. Cheryl Turner, testified that: (1) the night after the

alleged rape, she witnessed Sa’Ra and McVea having sex; (2) Sa’Ra had angered

McVea by dating Singleton; and (3) McVea had “expressed . . . that if she couldn’t

have [Sa’Ra], nobody else gonna have him” and “[s]he’d see him in jail.” Id., Vol. II

at 366. Singleton testified that McVea had also said “that no one [was] going to have

[Sa’Ra] if she couldn’t have him” and that “she was gonna do something to [Sa’Ra].”

Id. at 393, 395.

      Sa’Ra was convicted based on a guilty verdict. The Colorado Court of

Appeals affirmed, and the Colorado Supreme Court denied certiorari.




                                          -3-
II.        The State Post-Conviction Proceedings and the Scope of Hoskins’s
           Testimony

           Sa’Ra filed a motion for post-conviction relief under Colorado Rule of

Criminal Procedure 35(c). He argued that his attorney, Ms. Dana Casper, had been

ineffective by failing to investigate and call Janice Hoskins as a witness. Hoskins

had raised McVea and claimed to have information that McVea had: (1) lied about

the extent of her contacts with Sa’Ra from November 2000 to January 2001, and (2)

fabricated the rape charge to punish Sa’Ra for his affair with Singleton. At the

hearing, Hoskins, Sa’Ra, and Casper testified regarding: (1) disagreements with

McVea about what she had said at trial, (2) an admission by McVea, and (3) defense

counsel’s pretrial investigation and reasons for not calling Hoskins as a witness at

trial.

      A.    Testimony Questioning McVea’s Testimony

           The testimony at the post-conviction hearing contradicted parts of McVea’s

trial testimony.

           For example, at the trial, McVea testified that she had seen Sa’Ra only

“around Christmastime.” Id., Vol. I at 71. Hoskins disputed this version, testifying

at the post-conviction hearing that she had “[c]onstantly” seen McVea with Sa’Ra

“from November 2000 through the time of Sa’Ra’s arrest.” Id., Vol. III at 530.

           And, both Hoskins and Sa’Ra testified at the post-conviction hearing that

McVea had made damaging admissions. For example, Hoskins testified that McVea

had admitted that “she never was raped.” Id. at 525. Sa’Ra added in the hearing that

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McVea had promised in a three-way conference call that she would drop the charges

if he ended the relationship with Singleton. Id. at 574.

   B.     Testimony About Casper’s Investigation

        The post-conviction hearing covered not only questions about McVea’s trial

testimony, but also the extent of Casper’s pretrial investigation.

        For example, Casper testified that her file contained: (1) “a specific notation

to Janice Hoskins,” and (2) information about the three-way telephone call between

Sa’Ra, Hoskins, and McVea. Id. at 543, 552-53.

        The testimony also covered Casper’s recollection. Casper was positive that

her investigator had spoken with Hoskins. Though Casper could not remember why

she had chosen not to use Hoskins, Casper thought “that [Hoskins] must have had

something negative to say, or [she] would have called [Hoskins] as a witness.” Id. at

547.

   C.     The State-Court Decisions

        The state district court denied Sa’Ra’s Rule 35(c) motion, and the Colorado

Court of Appeals affirmed. In affirming, the appeals court reasoned that Casper had

made a tactical decision not to call Hoskins as a witness:

        Both [Hoskins] and trial counsel were unsure whether and how much
        contact they had had with one another. However, counsel had written in
        her trial preparation notes that [Sa’Ra] had told her about [Hoskins] and
        the three-way phone call. The [post-conviction] court had the discretion
        to credit counsel’s testimony that she had investigated whether to call
        [Hoskins] as a witness and to conclude that counsel’s decision not to
        call [Hoskins] was reasonable because her testimony would not have
        helped [Sa’Ra].

                                           -5-
Id. at 625.

III.   The Federal Habeas Proceedings

       The federal district court disagreed with the Colorado Court of Appeals,

determining that Casper had performed deficiently in her investigation of Hoskins as

a potential witness. Nevertheless, the district court concluded that the deficient

performance had not prejudiced Sa’Ra’s defense. Thus, the district court denied

habeas relief.

                       THE INEFFECTIVE-ASSISTANCE CLAIMS

       Sa’Ra claims that Casper rendered ineffective assistance of counsel in

investigating Hoskins as a potential witness and then not calling her to testify. This

claim requires a showing of both deficient representation and prejudice. Black v.

Workman, 682 F.3d 880, 902 (10th Cir. 2012). Sa’Ra has not satisfied either

element.

I.     Deficiency

       In considering the adequacy of the legal representation, we engage in a “highly

deferential” review. Byrd v. Workman, 645 F.3d 1159, 1168 (10th Cir. 2011)

(internal quotation marks omitted). In exercising this deference, we presume that the

attorney provided adequate assistance and used reasonable judgment in all the

significant decisions. Id.

       For ineffective-assistance claims decided on the merits in state court, the

Antiterrorism and Effective Death Penalty Act of 1996 confines our review. See

                                          -6-
Littlejohn v. Trammell, 704 F.3d 817, 824 (10th Cir. 2013). Under this Act, we

consider whether the state court’s decision on legal issues was contrary to, or an

unreasonable application of, clearly-established federal law as determined by the

Supreme Court. 28 U.S.C. § 2254(d)(1). Thus, we can grant habeas relief only if the

state court applied the law in an objectively unreasonable fashion. DeRosa v.

Workman, 679 F.3d 1196, 1207 (10th Cir. 2012).

       This burden is not easily met. Harrington v. Richter, __ U.S. __, 131 S. Ct.

770, 788 (2011). Indeed, when the Antiterrorism and Effective Death Penalty Act

controls, “the question is not whether counsel’s actions were reasonable. The

question is whether there is any reasonable argument” that counsel had employed a

justifiable strategy. Id. Applying this principle, the Supreme Court has held that

courts cannot require proof that counsel had actually followed a given strategy if it

would have been objectively reasonable:

       The Court of Appeals erred in dismissing strategic considerations like
       these as an inaccurate account of counsel’s actual thinking. Although
       courts may not indulge “post hoc rationalization” for counsel’s
       decisionmaking that contradicts the available evidence of counsel’s
       actions, neither may they insist counsel confirm every aspect of the
       strategic basis for his or her actions. There is a “strong presumption”
       that counsel’s attention to certain issues to the exclusion of others
       reflects trial tactics rather than “sheer neglect.” After an adverse verdict
       at trial even the most experienced counsel may find it difficult to resist
       asking whether a different strategy might have been better and, in the
       course of that reflection, to magnify their own responsibility for an
       unfavorable outcome. Strickland, however, calls for an inquiry into the
       objective reasonableness of counsel’s performance, not counsel’s
       subjective state of mind.

Id. at 790 (citations omitted).

                                          -7-
      It was reasonable for the Colorado Court of Appeals to conclude that

Casper did not perform deficiently.1 This conclusion could legitimately have

been based on inferences that Casper had known that Hoskins was a potential

witness, had talked to Hoskins before the trial, and had an investigator talk to

Hoskins.

      While Casper could not remember why she had decided against using Hoskins

at trial, Casper cited the general practice of not calling witnesses harmful to one’s

own client. Given that calling Hoskins as a witness might have revealed Sa’Ra’s

incarceration on an unrelated charge and that Sa’Ra had violated institutional rules

against three-way calls, Casper may have been justified in not calling Hoskins as a

witness.

      Casper may or may not have applied this reasoning when she decided on her

witnesses. But Casper’s actual thinking on the subject does not matter because the

test is objective, rather than subjective. The potential harm to Sa’Ra’s defense would

have provided a reasonable basis for Casper to decide against calling Hoskins as a

witness. Thus, the state appellate court acted reasonably when it concluded that

Casper had not acted deficiently.


1
       Sa’Ra argues that the district court’s deficiency determination is binding on
appeal because the Respondents did not cross-appeal. But “[a]n appellee may,
without filing a cross-appeal, urge in support of a decree any matter appearing in the
record, although his argument may involve an attack upon the reasoning of the lower
court.” Ute Distrib. Corp. v. Sec’y of Interior, 584 F.3d 1275, 1282 (10th Cir. 2009)
(internal quotation marks omitted).


                                          -8-
II.    Prejudice

       Even if Casper had performed deficiently, Sa’Ra has not demonstrated

prejudice.

       The prejudice prong requires an applicant to “show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984).

       Because the Colorado Court of Appeals did not address the element of

prejudice, we exercise our independent judgment. See Littlejohn v. Trammell, 704

F.3d 817, 825 (10th Cir. 2013). Our independent judgment is affected by allocation

of the underlying burden of persuasion. That burden falls on the Petitioner, who

must show a constitutional violation by a preponderance of the evidence. See Beeler

v. Crouse, 332 F.2d 783, 783 (10th Cir. 1964) (per curiam) (“Habeas corpus is a civil

proceeding and the burden is upon the petitioner to show by a preponderance of the

evidence that he is entitled to relief.” (citation omitted)).

       According to Sa’Ra, the outcome would likely have been different if the jury

had heard Hoskins testify. Sa’Ra points to Hoskins’s statement that McVea admitted

she had fabricated the rape allegation out of jealousy. According to Sa’Ra, the

absence of Hoskins’s testimony was prejudicial because the jury was initially

deadlocked and “the only forensic evidence was ambiguous.” Aplt. Opening Br. at

24. Sa’Ra has not shown by a preponderance of the evidence that a different

outcome would have been reasonably probable if Hoskins had testified at trial. There


                                            -9-
are two reasons: (1) Hoskins’s account was largely cumulative of others’ trial

testimony; and (2) the prosecution’s evidence would have remained equally strong.

      Sa’Ra’s argument on prejudice is undercut by the fact that others had already

testified at trial about two of the subjects that Hoskins could have addressed: (1)

McVea’s statement that she would punish Sa’Ra; and (2) the frequency with which

McVea had seen Sa’Ra after their breakup. For example, Turner and Singleton

testified that McVea had said she would punish Sa’Ra if she (McVea) could not have

him. Turner also testified that McVea had said she would “see him in jail.” Aplt.

Appendix, Vol. II at 366. And another witness, Ms. Tamica Alexander, testified that

McVea had said that “if she could not have Sa’Ra, she would see to it that no one

could have him.” Id. at 378.

      Although Hoskins could have impeached McVea’s account of how often Sa’Ra

and McVea had been together after their breakup, McVea admitted that she was with

Sa’Ra at Christmas and several days earlier. Id., Vol. I at 135, 164, 228. McVea’s

trial testimony was also undercut by Turner, who testified that she had seen Sa’Ra

and McVea having sex after the two had purportedly broken up. Id., Vol. II at 358-

61.

      With the testimony by Turner, Singleton, and McVea already before the jury,

we believe Hoskins’s testimony would have added relatively little to the strength of

Sa’Ra’s defense.




                                         - 10 -
      At the same time, the State’s theory would have remained roughly as strong

even if Hoskins had testified at trial. The jury still would have had to weigh Sa’Ra’s

defense theory against McVea’s testimony about the rape and the corroboration that

when an officer arrived, she was hysterical, saying she had been raped.

      In light of the strength of the prosecution’s evidence and the duplicative nature

of Hoskins’s testimony, we do not believe Sa’Ra has shown by a preponderance of

the evidence that a different outcome would have been reasonably probable if Casper

had called Hoskins at trial. Thus, we hold that Sa’Ra has not shown prejudice.

                                     CONCLUSION

      We affirm the district court’s denial of habeas relief because the legal

representation was neither deficient nor prejudicial.


                                                  Entered for the Court



                                                  Robert E. Bacharach
                                                  Circuit Judge




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