                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          MAY 19 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    RICHARD MCCARTY,

                Petitioner-Appellant,

    v.                                                  No. 96-2132
                                                 (D.C. No. CIV-94-1428-HB)
    DONALD A. DORSEY, Warden,                             (D. N.M.)
    Southern NM Correctional Facility,

                Respondent-Appellee.




                             ORDER AND JUDGMENT *



Before PORFILIO and LOGAN, Circuit Judges, and BURRAGE, District Judge. **


         After examining the briefs and appellate record, the panel has determined

unanimously that oral argument would not materially assist the disposition of this

appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Petitioner’s motion for

oral argument is therefore denied, and the case is ordered submitted on the briefs.


*
      This order and judgment is not binding precedent, except under the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.
**
      Honorable Michael Burrage, Chief Judge, United States District Court for
the Eastern District of Oklahoma, sitting by designation.
      Petitioner appeals from the denial of habeas relief under 28 U.S.C. § 2254.

This case arises out of his New Mexico conviction on charges of criminal sexual

penetration, kidnapping, and bribery of a witness. After conviction, petitioner

moved for a new trial on the basis of newly discovered evidence concerning

allegedly flirtatious behavior by the victim toward a police officer who took her

home from the hospital several hours after the incident. The trial court denied the

motion, and the New Mexico Court of Appeals affirmed under state law holding

that mere impeachment evidence is insufficient to warrant a new trial. In the

ensuing habeas proceedings, the district court adopted the magistrate judge’s

recommendation to deny the same claim, now explicitly couched in terms of a

violation of Brady v. Maryland, 373 U.S. 83 (1963), 1 holding that the victim’s

statements would have been inadmissible under New Mexico’s rape shield law

and, in any event, were not material under Brady standards.

      In habeas proceedings, we review the district court’s legal conclusions de

novo and its factual findings for clear error. Hill v. Reynolds, 942 F.2d 1494,

1495 (10th Cir. 1991). As explained below, we do not rely on the uncertain scope

of New Mexico’s rape shield law, resting our disposition instead on Brady’s


1
       There is some question whether the Brady claim was exhausted through the
state proceedings on petitioner’s motion for new trial, which evidently was based
on newly discovered--not improperly withheld--evidence. However, as the parties
have not disputed the matter, and the case is straightforward on the merits, we
forego any definitive resolution of the exhaustion question.

                                         -2-
materiality requirement. On de novo review of this mixed question of law and

fact, see Smith v. Secretary of N.M. Dep’t of Corrections, 50 F.3d 801, 827, 833

(10th Cir. 1995), we conclude that the district court properly rejected petitioner’s

challenge to his conviction. 2

      “[T]o establish a Brady violation, the [petitioner] bears the burden of

establishing: 1) that the prosecution suppressed evidence; 2) that the evidence

was favorable to the accused; and 3) that the evidence was material.” Id. at 824

(footnote and quotation omitted). Evidence is material if “there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the

proceedings would have been different,” i.e., “when the Government’s evidentiary

suppression undermines confidence in the outcome of the trial.” Kyles v.

Whitley, 115 S. Ct. 1555, 1565, 1565 (1995) (quotations omitted) (also

“disavow[ing] any difference between exculpatory evidence and impeachment

evidence for Brady purposes”). We view the undisclosed evidence in relation to

the record as a whole, as the materiality of exculpatory evidence will vary with

the overall strength of the government’s case. Smith, 50 F.3d at 827.




2
       Since we would reach the same result under the (stricter) provisions of the
Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 119
Stat. 1214, we need not resolve the retroactivity issues that its application would
raise here. See Houchin v. Zavaras, 107 F.3d 1465, 1470 (10th Cir. 1997).

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      The issue at petitioner’s trial was consent; sexual intercourse had been

admitted. Thus, he contends any subsequent conduct by the victim behaviorally

inconsistent with her allegation of assault was material to the defense. Cf.

Commonwealth v. Killen, 680 A.2d 851, 852-54 (Pa. 1996) (reversing conviction

because court erroneously excluded sexually provocative statements by victim

which “could be fairly construed by the jury as being inconsistent with that of a

person recently criminally assaulted”). Just such evidence, he maintains, was

known to Albuquerque police officer Guadalupe Guevara, and through him the

state prosecutors, see Kyles, 115 S. Ct. at 1567-68; Smith, 50 F.3d at 831, but was

not provided to the defense until after trial.

      On petitioner’s motion for new trial, the state court held a hearing to allow

officer Guevara to relate his account of the victim’s conduct at the hospital where

she was given a sexual assault exam. He testified in pertinent part as follows:

      Q.     (By [defense counsel])      What else did [the victim] say to you?

      A.     Well, she requested a ride home. That was one thing I did promise
      her and also her friend, I would give them a ride home after they were done
      with the testing. And while they was there, I don’t know if I would call it
      flirting, but she asked me if I would give them -- her a ride home after I
      dropped off her friend.

      Q.     Did you ever tell me that she was flirting with you?

      A.     I thought it was kind of flirting. She was smiling and so forth. I
      thought that was kind of peculiar because she claimed she had just been
      raped.


                                           -4-
Q.     Did, in fact, she come on to you a little bit stronger than that?

A.     It’s hard to say. I mean, I don’t know.

Q.   Did you ever tell myself or [co-counsel] you felt she was
coming on to you?

A.    I don’t know if it was coming on to me, but her attitude didn’t fit
what had just occurred and I thought it was just, you know, just kind of
strange. I guess you could say it was kind of flirting in a sense, but it
wasn’t direct questions or anything.

....

Q.     (By [defense counsel])     Officer, did [the victim] make a pass
at you that night?

A.    I don’t know if she was making a pass at me. That’s such a general
question, to make a pass at me.

....

A.     I mean -- in the hospital, in the situation that was going on and
everything, okay, with the things she was saying and so forth, I thought it
was strange, okay? I’m in my uniform. I’m not thinking to that effect,
okay, and I just thought it was odd. I mean, she commented on something
to the effect that she thought I was good looking and then she asked me if
I would give -- that was one of the things I promised. I would give her a
ride home. Whether she was making a pass or not, I don’t know, I mean --
or coming on to me, I don’t know.

Q.     Was there anything in her conduct that led you to believe that she
wanted something more than a ride home from you? Did she sit
particularly close to you, anything of that nature?

A.     No, she never did. . . .

....

Q.     So, when she asked you to give her a ride home, she didn’t have any

                                    -5-
       other means of transportation; is that right?

       A.    No, she didn’t.

       Q.    And other than that, her smiling at you, telling you you’re good
       looking, and asking you for a ride home, was there anything else she did?

       A.    No.

R. Vol. VIII at 8-9, 12, 14, 20. When asked why he had not mentioned any of this

before or during petitioner’s trial, officer Guevara explained:

              My opinion is, regardless of how she acts, that doesn’t mean
       whether she was raped or not, okay? For all I know, she could have
       blocked it out, whatever, when she is there. She generally seemed to
       be upset at the scene and at first while at the hospital. Whether I
       think -- whether she thought I was good looking or whether she
       wanted a ride home, I still don’t know what that meant. That doesn’t
       mean that she wasn’t raped.

Id. at 15.

       Several considerations combine to undercut the force of this testimony.

First of all, what significance it has is a function not of the objective conduct of

the victim, which is facially innocuous, but only of the subjective interpretation

officer Guevara placed on that conduct. And, his own confidence in that

interpretation was decidedly weak. Moreover, as officer Guevara himself noted

and the trial record clearly substantiates, the victim’s behavior was otherwise

entirely consistent with her allegations throughout the extended ordeal: from the

initial encounter with the first officer on the scene, see R. Vol. III at 128-32

(victim exited petitioner’s car and hurriedly approached officer; she was “very

                                          -6-
excited” and “irate;” she “looked like she had been crying;” and “[s]he just told

[the officer] that she needed to talk to [him] and right away she mentioned to

[him] that [petitioner] had raped her”), and the immediate questioning by officer

Guevara, see R. Vol. IV at 22-23, 29-31 (victim was “irate” and “angry;” she was

crying “off and on” during 15-minute interview; “[she] would shift from anger to

. . . crying and then she would yell at [petitioner]”), to the interview with the sex

crimes detective, see id. at 47-49 (victim was “visibly upset,” “emotional,” and

“crying”), and on through the hospital examination, see R. Vol. VIII at 15 (victim

“generally seemed to be upset . . . at first while at the hospital”). Considering the

one ambiguous incident with officer Guevara against the backdrop of this lengthy

course of conduct, which extends back much closer in time to the events the

victim’s behavior is being used, inferentially, to confirm or deny, cf. Killen, 680

A.2d at 853-54 (noting significance of “sexually provocative” conduct by victim

“immediately after alleged assault” (emphasis added)), we are not persuaded that

the undisclosed evidence was material.

      The presence of independent evidence corroborating the victim’s

accusations further supports our conclusion. The trial record shows, for example,

that (1) the victim’s skirt was torn, her pantyhose was ripped open at the crotch,

and her body was newly bruised; (2) petitioner was overheard telling the victim to

“shut up” as the police first approached, then gave conflicting versions of such


                                          -7-
basic facts as whether he had penetrated the victim and whether the act occurred

outside or inside the car, and later offered the internally inconsistent story that,

while he had carried the unconsciously drunk victim (a description belied by

every other witness’s observation of her condition) to his car from a bar, shortly

thereafter she physically forced herself on him and him in her; and (3) petitioner

had a knife matching the victim’s description of the one used to threaten her,

though petitioner claimed he had never taken it out for her to see.

      In sum, the undisclosed evidence regarding the victim’s “atypical”

post-assault behavior is weak on its face, and is essentially overwhelmed by

contrary evidence adduced on the point at trial. Further, petitioner was not

convicted solely on the basis of the victim’s uncorroborated accusations; other,

independent evidence pointed to his guilt. Under the law noted above, we hold

that while petitioner raises a substantial constitutional issue under Brady, he

ultimately cannot meet the materiality requirement necessary to warrant relief.

      Accordingly, we grant a certificate of appealability under 28 U.S.C.

§ 2253(c) and AFFIRM the judgment of the district court denying the petition.

                                                      Entered for the Court

                                                      Michael Burrage
                                                      Chief District Judge




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