                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 20 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    CARL OLONA,

                Petitioner-Appellant,

    v.                                                   No. 00-2167
                                               (D.C. No. CIV-97-573-MV/KBM)
    JOE WILLIAMS, Warden, Central                         (D. N.M.)
    New Mexico Correctional Facility;
    ATTORNEY GENERAL FOR THE
    STATE OF NEW MEXICO,

                Respondents-Appellees.


                            ORDER AND JUDGMENT            *




Before BRORBY , PORFILIO , and BALDOCK , Circuit Judges.



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

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
      Petitioner Carl Olona appeals the decision of the district court denying his

petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. Because

we cannot conclude that “reasonable jurists would find the district court’s

assessment of the constitutional claims [here] debatable or wrong,”    Slack v.

McDaniel , 529 U.S. 473, 484 (2000), we deny petitioner’s application for

a certificate of appealability and dismiss this appeal.

      Following a 1987 trial to a New Mexico state court, petitioner was

convicted of three counts of second degree criminal sexual penetration, one count

of attempt to commit the same, kidnaping and aggravated burglary. His sentence

was enhanced due to his habitual offender status, and petitioner was sentenced to

thirty-seven years’ incarceration and two years’ parole. His conviction was

affirmed by the New Mexico Court of Appeals and became final in 1988 when the

New Mexico Supreme Court denied certiorari.

      Petitioner filed his federal habeas petition on the last day of the AEDPA

grace period, April 23, 1997. By then, the records of the state trial had largely

disappeared. The federal district court held a hearing regarding the state of the

record at which petitioner’s trial attorney, an assistant district attorney who had

worked on the case, petitioner’s appellate attorney and petitioner all testified.

At the end of the hearing, the court directed the parties to agree to a briefing

schedule. The matter was then referred to a magistrate judge.


                                           -2-
      In his habeas petition, petitioner argues that insufficient evidence supported

his convictions and that he was denied his Sixth Amendment right to

confrontation when the trial judge prevented him from inquiring into a 1986 rape

accusation against a Texas man lodged by the complainant in this case. After

reviewing the elements of the various crimes for which petitioner had been

convicted and the opinion of the New Mexico Court of Appeals affirming the

convictions, the magistrate judge addressed the merits of petitioner’s claims and

concluded that habeas relief should be denied. The district court adopted the

magistrate judge’s proposed findings and recommendation and denied a certificate

of appealability (COA).

      The statute governing the issuance of a COA “establishes procedural rules

and requires a threshold inquiry into whether the circuit court may entertain an

appeal.” Slack , 529 U.S. at 482. No COA will be forthcoming unless “‘the

applicant has made a substantial showing of the denial of a constitutional right.’”

Id. at 481 (quoting 28 U.S.C. § 2253(c)). Where, as here, the district court

rejected petitioner’s constitutional claims on the merits, Mr. Olona must now

“demonstrate that reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong.”   Id. at 484.




                                           -3-
       At the outset of his brief on appeal, petitioner argues that AEDPA does not

apply to his appeal and advances three challenges to the constitutionality of

AEDPA as applied to him. Because law from the Supreme Court and this court

effectively disposes of petitioner’s constitutional arguments, we need not pause

long in addressing those issues. Contrary to petitioner’s contention, AEDPA does

apply to his case because Mr. Olona’s federal habeas petition was filed after

AEDPA’s effective date.       See Slack, 529 U.S. at 481 (citing   Lindh v. Murphy ,

521 U.S. 320, 327 (1997)). “We have repeatedly held that the AEDPA applies to

cases filed after its effective date, regardless of when state court proceedings

occurred.” Trice v. Ward , 196 F.3d 1151, 1158 (1999) (quotation omitted),

cert. denied, 121 S. Ct. 93 (2000). We have similarly rejected a challenge to

AEDPA on the basis of retroactivity.      See id. (citing cases from other circuits

which have reached a similar result).

       Petitioner’s argument, based on a hypothetical scenario, that AEDPA

somehow violates Article III has been foreclosed by the Supreme Court’s opinion

in Williams v. Taylor, 529 U.S. 362, 378-79 (2000). There the court roundly

rejected an interpretation of AEDPA that would “alter the underlying grant of

jurisdiction in § 2254(a).”    Id. at 378. “A construction of AEDPA that would

require the federal courts to cede this authority to the courts of the States would




                                             -4-
be inconsistent with the practice that federal judges have traditionally followed in

discharging their duties under Article III of the Constitution.”    Id. at 379.

       Petitioner finally argues that denial of his petition under AEDPA would

result in a suspension of the writ. He does not specify how this result would

occur, other than to hypothesize that “[i]f AEDPA requires that a federal habeas

court allow a state court decision to stand, even though it is contrary to the United

States Constitution, AEDPA would also violate the suspension of the writ clause.”

Opening Br. at 29. Of course, AEDPA does not          require any such outcome. It

requires only that “determinations of state courts be tested only against ‘clearly

established Federal law, as determined by the Supreme Court of the United

States,’ and second, the prohibition on the issuance of the writ unless the state

court’s decision is ‘contrary to, or involved an unreasonable application of,’ that

clearly established law.”    Williams , 529 U.S. at 379 (quoting § 2254(d)).      See also

Felker v. Turpin , 518 U.S. 651, 664 (1996) (holding that AEDPA’s restrictions on

successive petitions do not amount to a suspension of the writ);     Miller v. Marr ,

141 F.3d 976, 978 (10th Cir. 1998) (holding that, under circumstances of the case,

AEDPA’s statute of limitations did not result in a suspension of the writ).

       Turning now to the merits of this appeal, petitioner argues that the trial

judge denied him his Sixth Amendment right to cross-examine the victim about

her prior rape allegation which resulted in an acquittal and that insufficient


                                             -5-
evidence supports his convictions. The New Mexico Court of Appeals rejected

both of these claims on the merits.   1



       Under AEDPA, petitioner will not be entitled to habeas relief unless the

state court’s adjudication of the merits of his claims “resulted in a decision that

was contrary to, or involved an unreasonable application of, clearly established”

Supreme Court precedent or “resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d).

              Under the “contrary to” clause, a federal habeas court
              may grant the writ if the state court arrives at a
              conclusion opposite to that reached by [the Supreme]
              Court on a question of law or if the state court decides
              a case differently than [the Supreme] Court has on a set
              of materially indistinguishable facts. Under the
              “unreasonable application” clause, a federal habeas
              court may grant the writ if the state court identifies the
              correct governing legal principle from [the Supreme]



1
        Petitioner argues that the New Mexico Court of Appeals did not address his
Confrontation Clause argument on the merits. We disagree. While that court did
not use the phrase “Confrontation Clause” or refer directly to the Sixth
Amendment, the opinion relies on     State v. Johnson , 692 P.2d 35 (N.M. Ct. App.
1984) ( overruled in part by Manlove v. Sullivan    , 775 P.2d 237 (N.M. 1989)), the
leading New Mexico case at the time regarding the operation of the state’s rape
shield law. Johnson , in turn, is specifically concerned with the constitutional
right to cross-examine (“The danger posed by [the rape shield law] is that its
application will prevent the defendant from adequately cross-examining the
complainant to attack her credibility, thus violating the defendant’s right to
confront the witnesses against him guaranteed by the sixth and fourteenth
amendments.”). Johnson , 692 P.2d at 42.

                                          -6-
              Court’s decisions but unreasonably applies that principle
              to the facts of the prisoner’s case.

Williams, 529 U.S. at 412-13.

       The facts supporting petitioner’s Confrontation Clause claim stem from an

earlier rape complaint brought by the victim in this case against a man in El Paso,

Texas. In that case, the victim apparently was interviewed by Texas authorities,

took part in grand jury proceedings, and participated in the trial at which the

defendant was acquitted. During the course of Mr. Olona’s trial, defense counsel

asked the victim why she had earlier denied penetration when she had been

interviewed. The victim stated that, at the time of those interviews, she did not

know the meaning of the word “penetration.” Defense counsel renewed his

request to be allowed to inquire into the Texas rape case in an effort to establish

the unlikelihood that someone who was a complainant in an earlier rape

prosecution could not know the meaning of “penetration.” Defense counsel

wanted to make the victim’s credibility an issue, R. Vol. II at 21, and to test

whether the victim’s testimony would “unravel” as to all of the charges,   id.

at 22-23. The request to pursue this line of questioning was denied.

       “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) (quotations

omitted). “Trial judges retain wide latitude insofar as the Confrontation Clause is

                                           -7-
concerned to impose reasonable limits on cross-examination.”       United States v.

Ramone , 218 F.3d 1229, 1237 (10th Cir.) (quotations omitted),     cert. denied,

121 S. Ct. 598 (2000).

      Petitioner argues that he needed to be able to question the victim about her

prior rape charge in order to undermine her credibility. Based on the facts of this

case as best we can ascertain them, however, there were several different avenues

through which the victim’s credibility could have been attacked.     With respect to

the victim’s understanding of the word “penetration,” we note that in the

statement she gave to the police a few hours after the event, the victim herself

used the word to describe what petitioner had done to her: “He penetrated my

vagina with his finger and his tongue.” R. Vol. V Olona/Tammi Nidever folder,

Statement at 2. Presumably this police report was available to defense counsel

and would have been just as effective to impeach the victim regarding her

understanding of the word as would inquiry into her prior rape allegation.

      Further, the victim reported that petitioner knocked her to the floor, cut her

with a knife or scissors, sexually assaulted her and was only prevented from full

penile penetration when she hit him on the head with an electric fan. All of these

statements were apparently open to challenge: the victim had no physical marks

other than some very slight scratches on her forehead which the defense attorney

suspected were self-inflicted with a kitchen fork; the victim’s apartment showed


                                           -8-
no signs of a struggle; petitioner’s fingerprints were not found on either a knife or

scissors; the physical evidence of a sexual assault was equivocal, and no marks

were found on petitioner’s body indicating that he had been struck by the victim.

All of these factual inconsistencies were open to the defense and could have

undermined the victim’s credibility. There is no evidence that the defense did not

pursue these lines of questions in his cross-examination.

       We agree with petitioner that an essential part of the right of confrontation

is the opportunity to cross-examine.    See Delaware v. Van Arsdall , 475 U.S. 673,

678 (1986). And, indeed, that right can be abridged “if the trial court precludes

an entire relevant area of cross-examination.”       Richmond v. Embry , 122 F.3d 866,

871 (10th Cir. 1997) (quotations omitted);       cf. Ramone , 218 F.3d at 1236

(rejecting confrontation clause claim where defendant “was able to introduce

evidence with respect to his defense of consent and was not entirely precluded

from offering his theory of the case”). Because petitioner was not precluded from

all efforts to attack the victim’s credibility, his right to confrontation was not

abridged.   2



       Petitioner’s second claim is that insufficient evidence supported his

convictions.


2
       Because we find no violation of the Confrontation Clause here, it is
unnecessary for us to engage in the harmless error analysis discussed in
petitioner’s brief.

                                             -9-
       The standard of review of a claim relating to the sufficiency of the
       evidence is whether, ‘after considering all the trial evidence in the
       light most favorable to the prosecution . . . any rational trier-of-fact
       could not have found each separate element of the crime charged was
       proved beyond a reasonable doubt.’

Mayes v. Gibson , 210 F.3d 1284, 1293 (10th Cir.),         cert. denied , 121 S. Ct. 586

(2000)) (quoting Jackson v. Virginia , 443 U.S. 307, 319 (1979)).

               There is some debate in this circuit whether under the AEDPA
       a claim challenging the sufficiency of the evidence should be treated
       as a question of law or as a question of fact. See Moore v. Gibson ,
       195 F.3d 1152, 1176-77 (10th Cir. 1999) (summarizing split in the
       case law) [ cert. denied , 120 S. Ct. 2206 (2000)]. If we treat the claim
       as a question of law, then under § 2254(d)(1) we should only
       overturn the state court’s determination if its decision was contrary
       to established Supreme Court precedent. If we treat the claim as a
       question of fact, then under § 2254(d)(2) it should be overturned only
       if it represents an unreasonable determination of the facts in light of
       the evidence.

Id.

       In this case, as in Mayes , it makes no difference to the outcome whether we

treat the sufficiency question as one of law or of fact. After reviewing the

docketing statement presented to the New Mexico Court of Appeals and

petitioner’s brief filed therewith, we agree with the district court that the state

court’s decision is neither contrary to the “rational-trier-of-fact” test of     Jackson v.

Virginia , nor was it an unreasonable determination of the facts.




                                              -10-
     Petitioner’s application for a certificate of appealability is denied. This

appeal is DISMISSED.



                                                    Entered for the Court



                                                    John C. Porfilio
                                                    Circuit Judge




                                       -11-
