                                                                             F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                             FEB 15 2005
                                  TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                Clerk

 TYRON L. HARDAWAY,

               Petitioner-Appellant,                       No. 04-3365
          v.                                            District of Kansas
 DAVID R. McKUNE, Warden,                         (D.C. No. 03-CV-3438-MLB)
 Lansing Correctional Facility;
 ATTORNEY GENERAL OF
 KANSAS,

               Respondents-Appellees.


                                       ORDER *


Before SEYMOUR, HARTZ , and McCONNELL , Circuit Judges.


      Tyron L. Hardaway, a state prisoner proceeding pro se, seeks a certificate

of appealability (COA) that would allow him to appeal from the district court’s

order denying his habeas corpus petition under 28 U.S.C. § 2254.     See 28 U.S.C. §

2253(c)(1)(A). Because we conclude that Mr. Hardaway has failed to make “a

substantial showing of the denial of a constitutional right,” we DENY his request

for a COA, and we DISMISS the appeal. 28 U.S.C. § 2253(c)(2).



      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
I. Background and Procedural History

      In 1997 Mr. Hardaway was charged with one count of rape in violation of

Kansas law.     Kan. Stat. Ann. § 21-3502(a)(1)(C). The statute upon which Mr.

Hardaway was charged defines rape as     sexual intercourse with a person who does

not consent under circumstances “when the victim is incapable of giving consent

because of mental deficiency . . . which condition was known by the offender or

was reasonably apparent to the offender.” Id. Prior to trial, Mr. Hardaway moved

pursuant to the Kansas rape shield statute to allow evidence and testimony

regarding the alleged victim’s prior sexual conduct so as to establish her ability to

give consent.    See Kan. Stat. Ann. § 21-3525. The trial court refused. After a

jury trial, Mr. Hardaway was convicted and sentenced to a term of 146 months in

the Kansas Department of Corrections. Mr. Hardaway’s conviction was affirmed

on appeal, and the Kansas Supreme Court denied review.

      On November 17, 2003, Mr. Hardaway filed for federal habeas relief

pursuant to § 2254. Mr. Hardaway asserted that he was denied: (1) his Sixth

Amendment right to confront and cross-examine witnesses; (2) his Sixth

Amendment right to present a defense; (3) his Fourteenth Amendment right to due

process because he was convicted on the basis of insufficient evidence, and (4)

his Sixth Amendment right to effective assistance of trial and appellate counsel.


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The district court denied Mr. Hardaway’s petition and this application for a COA

followed.

II. Discussion

       A COA may issue “ only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order to make

such a showing, a petitioner must demonstrate that “reasonable jurists could

debate whether . . . the petition should have been resolved in a different manner

or that the issues presented were adequate to deserve encouragement to proceed

further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (internal quotations

omitted).

       On appeal Mr. Hardaway raises three issues. First, he claims that the

limitations placed upon the testimony of his expert witness concerning the

victim’s prior sexual conduct pursuant to the rape shield law denied him his Sixth

Amendment right to present a defense. Because the state court adjudicated this

claim on the merits, we decide whether the state court’s application of the Kansas

rape shield statute was “contrary to” or an “unreasonable application of” the

Supreme Court’s Sixth Amendment jurisprudence. 28 U.S.C. 2254(d)(1).

       The right to present a defense is not unlimited.   Chambers v. Mississippi ,

410 U.S. 284, 295 (1973). The right must bow to “other legitimate interests in the

criminal trial process.”   Id. The Supreme Court has held that rape shield statutes


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similar to the one used in Kansas are not per se violations of the Sixth

Amendment. Michigan v. Lucas , 500 U.S. 145, 151-53 (1991). The Kansas

Supreme Court has found the Kansas rape shield statute constitutional,

specifically finding that because the statute allows the admission of relevant

evidence, the application of the statute does not violate an accused’s right to

present a defense.   State v. Blue , 592 P.2d 897, 901 (1979).

       As the district court noted, Mr. Hardaway had an opportunity to testify

regarding the events of the day leading up to the rape, to argue the victim’s ability

to consent, and to cross-examine witnesses regarding the events of the day. Mr.

Hardaway’s defense expert was allowed to testify and was only limited in his

testimony regarding the victim’s previous sexual experiences. Mr. Hardaway has

not demonstrated that the state court’s decision denied him his Sixth Amendment

rights. Accordingly, this claim fails.

      Mr. Hardaway’s second claim is that the evidence presented at trial was

insufficient to support the conviction for rape. When making a claim for

insufficiency of evidence, habeas relief may be granted only if no “rational trier

of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979). Under the Antiterrorism

and Effective Death Penalty Act (“AEDPA”), we are limited to determining

whether the Kansas Court of Appeals reasonably applied the       Jackson standard for


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this claim. Spears v. Mullin , 343 F.3d 1215, 1238 (10th Cir. 2003). The Kansas

Court of Appeals determined that reasonable minds could decide that the victim

was incapable of giving consent because of mental deficiency.     State v.

Hardaway , No. 80,421 (Kan. Ct. App. Dec. 10, 1999). We agree with the district

court’s assessment that the Kansas Court of Appeals properly analyzed whether

the evidence was sufficient to sustain a guilty verdict. Consequently, this claim

must fail.

      Mr. Hardaway’s final claim is that he is actually innocent of the charge

upon which he was convicted and sentenced. “[A]n assertion of actual innocence,

although operating as a potential pathway for reaching otherwise defaulted

constitutional claims, does not, standing alone, support the granting of a writ of

habeas corpus.”   LaFevers v. Gibson , 238 F.3d 1263, 1265, n.4 (10th Cir. 2001).

Mr. Hardaway’s claim of innocence cannot be construed as anything other than

“standing alone,” and must therefore be rejected.

      Accordingly, we DENY Tyron Hardaway’s request for a COA and

DISMISS this appeal.

                                                Entered for the Court,

                                                Patrick Fisher, Clerk




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