                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 01-1174
                                     ___________

Russell Hubbeling,                        *
                                          *
      Petitioner - Appellant,             *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * District of South Dakota.
United States of America,                 *
                                          *
      Respondent - Appellee.              *
                                     ___________

                                Submitted: November 14, 2001

                                    Filed: May 3, 2002
                                     ___________

Before LOKEN, LAY, and HEANEY, Circuit Judges.
                           ___________

LOKEN, Circuit Judge.

       Russell Hubbeling and four codefendants were charged with twenty-three
counts of aggravated sexual abuse of young girls in their extended family in violation
of 18 U.S.C. § 2241(c). After a lengthy trial, the jury convicted Hubbeling of
sexually abusing his seven-year-old niece, T.R., and twenty-month-old niece, F.R.
He was sentenced to thirty years in prison, and we affirmed the convictions on direct
appeal. United States v. Rouse, 111 F.3d 561 (8th Cir. 1997), reconsidering 100 F.3d
560 (8th Cir. 1996). Hubbeling then filed a motion for post-conviction relief under
28 U.S.C. § 2255, asserting that he was denied effective assistance of counsel when
his attorney (1) failed to make a timely motion or provide adequate foundation under
Federal Rule of Evidence 412 for the admission of evidence concerning T.R.’s past
sexual activity; (2) did not object when an FBI agent testified to what three young
victims said during initial interviews; and (3) did not argue insufficiency of the
evidence on appeal. The district court1 denied the motion.

      After Hubbeling filed a notice of appeal, we remanded to the district court to
consider whether the issues raised in his § 2255 motion merited a certificate of
appealability, which may issue only if the applicant makes “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel,
529 U.S. 473, 483-84 (2000). The district court granted a certificate, explaining:

             The record in this case contains some evidence suggesting that
      Petitioner received ineffective assistance of counsel by failing to make
      a motion 15 days before trial regarding Rule 412 evidence in a child
      sexual abuse case and also by failing to introduce specific instances of
      prior sexual behavior by a victim to provide an explanation of an
      alternate source of injury to the victim. . . . Given these circumstances,
      the issue deserves further proceedings in the Eighth Circuit.

(Emphasis added). A certificate of appealability “shall indicate which specific issue
or issues satisfy the showing required by paragraph (2).” § 2253(c)(3). Despite the
unambiguous limitation in his certificate, Hubbeling has argued all three ineffective
assistance theories on appeal. We limit our review to the Rule 412 evidence issue
specified in the order granting a certificate. See Ramsey v. Bowersox, 149 F.3d 749,
759 (8th Cir. 1998), cert. denied, 525 U.S. 1166 (1999).2 We affirm.

      1
       The HONORABLE LAWRENCE L. PIERSOL, Chief Judge of the United
States District Court for the District of South Dakota.
      2
       Had Hubbeling filed a motion to expand the certificate of appealability, we
would have denied it. Hubbeling’s trial counsel objected to the FBI agent’s hearsay
testimony, which we upheld on direct appeal. See 111 F.3d at 569-70. And the
evidence was clearly sufficient to convict Hubbeling of sexually abusing both nieces.

                                         -2-
                            The Rule 412 Evidence Claim.

       One of the victims was Hubbeling’s seven-year-old niece, T.R. On the day
before trial, defendants gave notice of their intent to introduce evidence that T.R. had
engaged in prior sexual activity. The government objected that defendants had not
complied with Rule 412 of the Federal Rules of Evidence.3 Before trial began, the
district court heard argument on this issue and ruled that the evidence defendants
proposed to introduce fell within Rule 412, that some was inadmissible general

      3
          Rule 412 provides in relevant part:

             (a) Evidence generally inadmissible. The following evidence
      is not admissible in any civil or criminal proceeding involving alleged
      sexual misconduct except as provided in subdivisions (b) and (c):

             (1) Evidence offered to prove that any alleged victim engaged in
      other sexual behavior.
                                * * * * *
             (b) Exceptions. (1) In a criminal case, the following evidence is
      admissible, if otherwise admissible under these rules:

             (A) evidence of specific instances of sexual behavior by the
      alleged victim offered to prove that a person other than the accused was
      the source of semen, injury or other physical evidence . . . .
                                 * * * * *
             (c) Procedure to determine admissibility. (1) A party intending
      to offer evidence under subdivision (b) must

            (A) file a written motion at least 14 days before trial specifically
      describing the evidence and stating the purpose for which it is offered
      unless the court . . . permits filing during trial . . . .
                                  * * * * *
            (2) Before admitting evidence under this rule the court must
      conduct a hearing in camera and afford the victim and parties a right to
      attend and be heard.

                                           -3-
reputation evidence, and that defendants had known about the possibly admissible
Rule 412 evidence for almost three months and had failed to comply with the Rule
by giving timely notice and a written offer of proof. Accordingly, the court granted
the government’s motion to exclude defendants’ Rule 412 evidence at trial “on the
basis of the record, as it currently exists.”

       On direct appeal, defendants challenged this preliminary ruling, arguing the
district court abused its discretion because defendants effectively gave timely Rule
412 notice in another pretrial pleading. We agreed with the district court that
defendants had failed to comply with Rule 412's procedural requirements and upheld
the court’s discretionary ruling. See 111 F.3d at 569. Accordingly, in this § 2255
proceeding, Hubbeling first argues that counsel’s failure to comply with the
procedural requirements of Rule 412 was ineffective assistance that prejudicially
affected the trial. Post-conviction relief for ineffective assistance of trial counsel
requires proof of prejudice, that 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). Like the district court, we reject
Hubbeling’s contention because counsel’s procedural mistake caused no prejudice.
As we will explain, the district court revisited the Rule 412 issue during trial and
ultimately excluded defendants’ proposed evidence for reasons other than their initial
untimely Rule 412 notice.

       At the close of the pretrial argument on Rule 412 issues, the district court noted
that the Rule provides for exceptions to its notice requirement and that some of the
defendants’ undisclosed evidence might be admissible under the Rule. Therefore, the
court stated, its ruling “is without prejudice to a proper showing that the defense
might make at some later point in the trial.” Defendants returned the very next day
with a renewed Rule 412 motion. This renewed effort is the focus of Hubbeling’s
alternative ineffective assistance argument: counsel was ineffective in failing to
present evidence that an eleven-year-old boy, T.R.’s cousin M.R., had told a defense

                                          -4-
investigator that he had sex twice with T.R. This evidence would have been
admissible under Rule 412(b)(1)(A), Hubbeling contends, because it was evidence
of specific sexual activity by the victim offered to prove that a person other than the
accused was the source of the victim’s injury.

       When defendants renewed their Rule 412 motion before the second day of trial,
they submitted the written reports of M.R.’s interviews with FBI and defense
investigators. Both reports said M.R. “admitted to having sex with” T.R. The
defense investigator’s interview notes stated, in pertinent part:

      [M.R.] admitted to having sex with [T.R.]. He said he knows what
      sexual intercourse is and he calls it “boning”. . . . He said he and [T.R]
      had sex in the back room of the house on one occasion and out in the
      field on another occasion.

The district court heard lengthy arguments on the renewed motion. Defendants
argued the evidence that M.R. had sex with T.R. would fall within the injury
exception in Rule 412(b)(1)(A). The government responded (i) T.R. denied having
sexual intercourse with M.R., (ii) the victims and other young children in the
extended family used words like “sex” with great imprecision, and (iii) it was unlikely
that any sexual activity between T.R. and an eleven-year-old boy could have been an
alternate source of the considerable physical injuries to T.R.’s genitalia. After
hearing these competing arguments, the district court took a cautious approach to the
issue:

      [W]ith regard to [T.R. and M.R.] . . . I don’t know if the Government is
      going to present that testimony [by the examining doctors] whether this
      injury came from this assault . . . . [T]he defense isn’t charged with
      having to anticipate that. [O]nce the Government puts [evidence] in . . .
      with regard to injury, then the defense could [argue] that the issue to
      which such evidence relates has newly arisen in the case. . . . I’m
      leaving that issue open and, of course, if the Government does present

                                         -5-
      testimony that this injury came from this assault . . . and . . . if the
      defense does bring it up then, then we would have, among other things
      . . . a hearing because I would have to have a [Rule] 403 balancing under
      that and also the defense would have to make a showing of relevancy
      and a very specific offer of proof with regard to what they’re proposing
      to go into under [Rule] 412 . . . .

            So that is the ruling of the Court with regard to [Rule] 412. The
      Motion is denied for the Defendants to introduce [Rule] 412 evidence,
      except with regard to the injury. . . . I’m leaving the issue, as I have
      described it on the injury issue alone, depending on what the
      Government’s proof is. If the Government doesn’t go into that, then you
      don’t need that evidence.

Later that trial day -- only 115 pages later in the transcript -- the government’s first
medical witness, Dr. Richard Kaplan, described the physical injuries to T.R.’s
genitalia he found during his examination of the young girl. Dr. Kaplan found that
T.R. had “obvious trauma and contusion . . . and very much tenderness” on her labia
majora. He testified that T.R. told him one of the defendants “hurt me there,” and
opined that his physical findings were “suggestive of child sexual abuse.” The
following day, Dr. Michael Ferrell, who performed a colposcopic examination of the
victims at Dr. Kaplan’s request, described T.R.’s physical injuries. Dr. Ferrell found
that T.R.’s “hymenal ring was essentially gone” and her entire vaginal area was
irritated and opined that these injuries were consistent with the alleged sexual abuse.

       Even though the district court had expressly invited defendants to reopen the
question whether M.R.’s testimony would be admissible under the injury exception
in Rule 412(b) if the government introduced this type of medical testimony, none of
the five defendants again raised this issue, despite the fact that they called M.R. as a
defense witness later in the trial. Why did counsel not pursue this Rule 412 injury
issue? The answer is not, as Hubbeling argues, that defense counsel overlooked the
defense investigator’s report of his interview with M.R., or that counsel ineffectively


                                          -6-
failed to present that report to the district court as injury evidence admissible under
Rule 412. All defendants had made that argument to the court in their renewed Rule
412 motion. The § 2255 record sheds no light on their failure to reopen the issue
after the government’s medical witnesses testified on the injury issue, because
Hubbeling did not come forward with an affidavit from any of the five defense
attorneys explaining their approach to this issue at trial.

        We conclude that we need not determine why counsel failed to press this issue
at trial because, had M.R. testified to the sexual activity he described to the two
investigators, his testimony would not have affected the verdict against Hubbeling.
In other words, Hubbeling suffered no Strickland prejudice as a result of his counsel’s
failure to attempt to introduce this evidence.

       Over the course of this lengthy trial, the government presented substantial
evidence supporting its case, including testimony by the young victims describing
how their uncles had abused them; corroborating child hearsay testimony by FBI
Agent Van Roe, a social worker, and a foster mother who had extensive contact with
the children; and considerable medical evidence of sexual abuse from Dr. Kaplan and
Dr. Ferrell. In addition, Dr. Randall Alexander, a member of the Board of Governors
of the National Committee to Prevent Child Abuse, testified that it takes considerable
force to inflict injuries such as those that T.R. suffered. M.R.’s vague assertions
regarding two prior instances of sexual contact with T.R. likely would not have
convinced the jury that such contact was the source of the significant injuries that
T.R. suffered. M.R.’s statements failed to indicate that his alleged sexual contact
with T.R. occurred near the time of her physical examinations, or that his sexual
contact with T.R. involved the use of force, or resulted in injuries and pain that were
consistent with T.R.’s vaginal injuries. Even if the jury believed M.R.’s story, they
were unlikely to conclude that this inter-child sexual activity provided an alternate
explanation for the extensive injuries discovered during T.R.’s medical examinations.
Thus, on this record, there is no reasonable probability that testimony by an eleven-

                                         -7-
year-old boy that he engaged in consensual sexual activity with T.R. would have
altered the jury’s finding that Hubbeling sexually assaulted his two young nieces.

      The judgment of the district court is affirmed.

HEANEY, Circuit Judge, concurring.

       I agree with the majority’s conclusion that Hubbeling is not entitled to relief
on his ineffective assistance of counsel claim. However, I write separately to address
the concerns I have with the federal government’s inability to effectively deal with
the disproportionate number of child sexual abuse cases emanating from South
Dakota’s Indian Reservations.

       In 1997, I wrote about the plethora of convictions in the United States District
Court for the District of South Dakota involving Native Americans and the sexual
abuse of children that are presented to this court. See United States v. Miner, 131
F.3d 1271, 1274-75 (8th Cir. 1997). A review of child sexual abuses cases that have
been presented to this court since that time reveals that this behavior continues to be
prevalent in the South Dakota Indian Reservations, and that the United States
Department of Interior, the Bureau of Indian Affairs, and tribal leadership have failed
to take actions to eliminate the causes of the abuse.4

      4
       See e.g. United States v. Bruguier, 161 F.3d 1145 (8th Cir. 1998) (sexual
abuse of seventeen-month-old girl); United States v. Looking, 156 F.3d 803 (8th Cir.
1998) (sexual abuse of six-month-old girl); United States v. Magpie, No. 98-1227,
1998 WL 453694 (8th Cir. July 28, 1998) (sexual abuse of six-year-old girl, four-
year-old girl, and five-year-old boy); United States v. Eagle, 133 F.3d 608 (8th Cir.
1998) (sexual assault of mentally handicapped thirteen year-old-girl); United States
v. Red Bird, No. 97-2429, 1998 WL 50959 (8th Cir. Feb. 10, 1998); United States v.
Eagle, 137 F.3d 1011 (8th Cir. 1998) (sexual abuse of eight-year-old girl); United
States v. Mound, 149 F.3d 799 (8th Cir. 1998) (sexual abuse of ten-year old girl);
United States v. Crow, 148 F.3d 1048 (8th Cir. 1998) (sexual abuse of ten-year old
                                         -8-
       As my colleague Judge Bright noted in Miner, the high incidence of child sex
abuse on South Dakota’s Indian reservations is partially attributable to the
impoverished, overcrowded living conditions facing many Native American families
in these areas. See Id. at 1275 (Bright, M., concurring). The prevalence of alcohol
abuse on the reservations is another contributing factor. Yet, the federal government
continues to concentrate its resources on the investigation and prosecution of sexual
abuse cases, and the treatment of victims of sexual abuse. While such programs are
necessary, I would suggest that to reduce the incidence of child sexual abuse in the
future, federal funds and policies must be directed towards alleviating the conditions




girl); United States v. Running Horse, 175 F.3d 635 (8th Cir. 1999); United States v.
Waters, 194 F.3d 926 (8th Cir. 1999) (sexual abuse of nine-year-old girl); United
States v. Marrowbone, 211 F.3d 452 (8th Cir. 2000) (sexual abuse of sixteen-year-old
boy); United States v. Withorn, 204 F.3d 790 (8th Cir. 2000) (rape of twelve-year-old
girl); United States v. Kirkie, 261 F.3d 761 (8th Cir. 2001) (sexual abuse of eleven-
year-old girl); United States v. Blue, 255 F.3d 609 (8th Cir. 2001) (sexual abuse of
twenty-one-month-old girl); United States v. Eagle Feather, No. 00-2663, 2001 WL
59051 (8th Cir. Jan. 25, 2001); United States v. Gabe, 237 F.3d 954 (8th Cir. 2001);
United States v. Black Bull, No. 01-1332, 2001 WL 792550 (8th Cir. July 16, 2001)
(sexual abuse of six-year-old girl); United States v. Red Cloud, No. 00-2604, 2001
WL 474762 (8th Cir. May 7, 2001); United States v. Bull, No. 01-2944, 2002 WL
113839 (8th Cir. Jan. 30, 2002); United States v. White Horse, 177 F. Supp.2d 973
(D.S.D. 2001); United States v. Azure, No. CR-99-30077, 1999 WL 33218402
(D.S.D., Oct 19, 1999); United States. v. Arcoren, No. CR-89-30049, 1999 WL
638244 (D.S.D., Jul 27, 1999).


                                         -9-
which give rise to such abuse. Living conditions on the reservations must be
improved, and alcoholism must be effectively treated, or future generations of Native
American children will continue to be scarred by the trauma of this crime.

      A true copy.

             Attest:

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




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