                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 10 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ANASTACIO FERNANDEZ, JR.,

                Petitioner-Appellee,

    v.                                                   No. 00-4017
                                                    (D.C. No. 97-CV-318J)
    HANK GALETKA, Warden, Utah                            (D. Utah)
    State Prison; JAN GRAHAM,
    Attorney General of the State of Utah,

                Respondents-Appellants.


                             ORDER AND JUDGMENT *


Before HENRY and BRISCOE, Circuit Judges, and ALLEY, Senior District
Judge. **



         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      This order and judgment is not binding precedent, except under the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.
**
       The Honorable Wayne E. Alley, Senior District Judge, United States
District Court for the Western District of Oklahoma, sitting by designation.
      Respondents appeal from a district court judgment granting a writ of habeas

corpus under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. § 1291 and

§ 2253(a).

      A developing legal issue is presented in this case, namely, the proper

standard for decision under 28 U.S.C. § 2254(d), which was enacted by the Anti-

Terrorism and Effective Death Penalty Act of 1996 (AEDPA). The Supreme

Court recently addressed this issue in Williams v. Taylor, 120 S. Ct. 1495 (2000),

after the district court’s decision in this case. On appeal, we apply current

decisional law. Peterson v. Shearson/American Express, 849 F.2d 464, 466 (10th

Cir. 1988). Under this law, we are compelled to find that the district court

erroneously granted relief and, therefore, reverse the judgment.

                                 Standard of Review

      The AEDPA governs petitioner’s federal habeas petition, which was filed

April 22, 1997. Williams v. Taylor, 120 S. Ct. 1479, 1486 (2000). The petition

presents a single claim for relief: that petitioner was denied his constitutional

right to effective assistance of counsel during a trial of felony charges. This

claim was fully heard and decided on the merits by the Utah courts in state post-

conviction proceedings. In this situation, our review is governed by 28 U.S.C.

§ 2254(d):

      [W]hen reviewing the merits of a claim already decided by the state
      courts, we are bound to deny relief unless the state . . . court’s

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      decision “was contrary to, or involved unreasonable application of,
      clearly established Federal law, as determined by the Supreme Court”
      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.”

LaFevers v. Gibson, 182 F.3d 705, 711 (10th Cir. 1999) (quoting 28 U.S.C.

§ 2254(d)(1) & (2)). As petitioner does not challenge any determination of facts

by the state courts, his claim falls squarely within § 2254(d)(1).

      In Williams, 120 S. Ct. at 1523, a majority of the Supreme Court held as

follows concerning the proper analysis under § 2254(d)(1):

      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 the 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 principle from [the
      Supreme] Court’s decisions but unreasonably applies that principle to
      the facts of the prisoner’s case.

Further concerning the “unreasonable application” clause, the Court said:

      [A] federal habeas court may not issue the writ simply because that
      court concludes in its independent judgment that the relevant state-
      court decision applied clearly established federal law erroneously or
      incorrectly. Rather, that application must also be unreasonable.

Id. at 1522; Van Woudenberg v. Gibson, 211 F.3d 560, 566 n.4 (10th Cir. 2000).

                        Factual and Procedural Background

      The State of Utah initiated a criminal prosecution against petitioner on

April 7, 1986, by information charging him with two counts of rape of a child, a

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violation of Utah Code Ann. § 76-5-402.1. The alleged victim was petitioner’s

daughter, and the charged incidents occurred in October 1983 and April 1985

when she was ages 11 and 13. A jury trial was held May 8 and 9, 1986.

Witnesses for the prosecution were petitioner’s daughter, a police detective, and a

gynecologist who examined the girl in April 1986. Petitioner’s witnesses were

his wife and himself, who testified in support of the defense theory that the

allegations were fabricated by the child. In rebuttal testimony, a psychologist

opined that the daughter suffered from post-traumatic stress disorder and was a

victim of sexual molestation. The jury found petitioner guilty on both counts, and

he was sentenced to consecutive 15-year to life terms of imprisonment. Upon

timely appeal to the Utah Supreme Court, the sentences were modified in

November 1987 to concurrent 15-year terms. At all stages of these initial

proceedings, petitioner was represented by one attorney, Clinton S. Judkins.

      In April 1988, petitioner filed a state habeas corpus action in a different

judicial district from the one where he was tried, claiming ineffective assistance

of counsel and juror bias. 1 The petition was dismissed for procedural default, but

the Utah Supreme Court reversed the dismissal and remanded for a merits

determination of the ineffective assistance claim. Fernandez v. Cook, 783 P.2d



1
  Mr. Judkins is now a district court judge in the district where petitioner’s trial
occurred.

                                         -4-
547, 550 (Utah 1989). After an evidentiary hearing in March 1990, the state

district court ruled in favor of petitioner on his ineffective assistance claim and

ordered his conviction set aside. (Aplt. App. at 76-80.) Witnesses at the hearing

included the gynecologist who had testified at trial, petitioner, Mr. Judkins, and a

lawyer who appeared as an expert in criminal defense. The written decision

issued July 18, 1990, contained these “Findings of Fact”:

            1.     Trial counsel, Clinton S. Judkins, . . . failed properly to
      prepare for trial and prosecute the case vigorously, and as such his
      representation fell outside the range of competent assistance . . . .

            2.     The Court finds that, notwithstanding that Clinton S.
      Judkins failed to undertake formal discovery . . . , that [petitioner]
      was not prejudiced since discovery materials were provided to
      counsel under the Cache County Attorney’s open file policy.

              3.    Discovery materials were provided by the Cache County
      Attorney’s Office to Clinton S. Judkins of Dr. Gibb’s examination
      notes; defense counsel Judkins was aware that the prosecutrix had
      alleged sexual intercourse had occurred in excess of 100 times with
      [petitioner]; that a pelvic examination conducted one year after the
      last alleged incident of sexual intercourse was inconclusive as to
      whether or not the prosecutrix had previously engaged in sexual
      intercourse, and such fact was never argued to the jury in support of
      the defense theory of fabrication.

            4.     Clinton S. Judkins failed to interview Mrs. Wendy
      Sanders, Michelle Sanders, Shelly Spackman, or Brenda Riggs,
      witnesses who had some knowledge of the allegations. Rather,
      Judkins directed that such witnesses be interviewed by Mrs. Arselia
      Fernandez, [petitioner’s] wife; the result, if any, of that investigation
      was not made known at trial.

              5.     Clinton S. Judkins failed to interview Dr. Gary Sazema
      [sic], a clinical psychologist, who conducted an evaluation at the

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behest of the State of Utah one day prior to the time set for trial to
assess his findings regarding post-traumatic stress disorder.

       6.     The Court finds that there is a reasonable probability
that a different result would have occurred in this case had counsel
interviewed witnesses; prepared petitioner and his wife for their trial
testimony; cross-examined the victim vigorously about the number of
times she had engaged in sex with her father and their relationship;
more effectively cross-examined Dr. Gibbs to establish the fact that
the examination he prepared was inconclusive as to whether or not
[the victim] had sexual intercourse with her father; had obtained an
independent opinion as to the validity or invalidity of Dr. Sazema’s
[sic] conclusions so that counsel could prepare to rebut or minimize
the effect of the doctor’s testimony; and had presented sufficient
testimony evidence to prove that [the victim] had fabricated her
story.

       7.     Clinton S. Judkins, in his opening statement informed
the jury that as his defense he would prove fabrication. The record
indicates he was not prepared to prove such a defense.

        8.    The Court finds that had counsel Clinton S. Judkins
zealously represented his client, as set forth above, regarding pre-
trial investigation, that effective cross-examination could have taken
place in regard to the prosecutrix . . . and other witnesses.

      9.     The Court finds that the fact that the matter went to trial
within 23 days or less from Circuit Court Arraignment did not
prejudice the petitioner.

      10. The Court finds from reading the record that defense
counsel Clinton S. Judkins had not prepared himself or his witnesses
adequately to be effective at [petitioner’s] trial.

      ....

       12. The Court finds that trial counsel’s lack of pre-trial
preparation, under the totality of circumstances, was ineffective
assistance, that prejudiced the trial result, resulting in a violation of


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      the United States Constitution, Sixth Amendment guarantee to
      Assistance of Counsel.

(Aplt. App. at 77-79.) The State dismissed its initial appeal of this decision in

order to pursue a motion for new trial. The state district court heard the motion in

April 1991 but declined to receive any further evidence. (Aplt. App. at 722-23.)

The court instead granted a motion in limine made by petitioner to prevent the

State from presenting any witnesses, thus excluding proposed testimony of the

victim, the prosecutor, Mr. Judkins, and witnesses whose absence during the

criminal trial allegedly prejudiced petitioner’s defense. (Aplt. App. at 711-25.)

The district court subsequently denied the new trial motion.

      On appeal, the Utah Supreme Court reversed the habeas corpus decision

and vacated the grant of relief. Fernandez v. Cook, 870 P.2d 870, 878 (Utah

1993). The supreme court viewed some findings labeled as factual by the lower

court to be legal conclusions not entitled to deferential review. Id. at 874-875.

The supreme court found that many alleged errors by Mr. Judkins were matters of

trial tactics or strategy and within the realm of reasonable professional judgment.

Id. at 876-77. The supreme court went further, however, to find that “[i]n any

event, even assuming that trial counsel was in some way deficient,” petitioner had

failed to meet his burden of satisfying the prejudice requirement, that is, of

showing that “but for counsel’s acts or omissions there is a reasonable probability

that the result at trial would have been different.” Id. at 877, 878.

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                                     Discussion

      The record is clear that the Utah courts analyzed petitioner’s ineffective

assistance claim under the proper standard of Strickland v. Washington, 466 U.S.

668 (1984). The dispositive issue in this appeal is whether the Utah Supreme

Court’s rejection of petitioner’s claim under that standard was unreasonable. We

conclude that it was not.

      The alleged errors by trial counsel of which petitioner complains are:

failure to prepare, investigate, and interview witnesses; failure to conduct formal

discovery; failure to interview Dr. Gibbs (the gynecologist) and to introduce a

letter he wrote containing favorable evidence; failure to interview Dr. Sazama

(the psychologist), to oppose his last minute endorsement, or to rebut effectively

his testimony; failure to interview other potential witnesses; failure to prepare

petitioner and his wife for their testimony; and failure to provide a zealous

defense and vigorous cross-examination of the victim. (Aplt. App. at 10-12.)

      We agree with Utah’s highest court that, assuming counsel’s performance

was deficient, petitioner did not satisfy his burden to demonstrate that he was

prejudiced by Mr. Judkins’ alleged errors or omissions. “[I]neffectiveness claims

alleging a deficiency in attorney performance are subject to a general requirement

that the [criminal] defendant affirmatively prove prejudice.” Strickland, 466 U.S.

at 693. “Even if a defendant shows that particular errors of counsel were


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unreasonable, therefore, the defendant must show that they actually had an

adverse effect on the defense.” Id. Establishing prejudice does not require proof

by a preponderance of the evidence that counsel’s deficient conduct affected the

outcome of the case. Id. at 693-94. Rather, the criminal “defendant must show

that there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding probably would have been different.” Id. at 694.

“When a defendant challenges a conviction, the question is whether there is a

reasonable probability that, absent the errors, the factfinder would have had a

reasonable doubt respecting guilt.” Id. at 695. “In making this determination, a

court hearing an ineffectiveness claim must consider the totality of the evidence

before the judge or jury.” Id.

      Here, petitioner primarily complains of inadequate pretrial preparation and

investigation by defense counsel. Petitioner made little effort during state post-

conviction proceedings, however, to show that more thoroughness by Mr. Judkins

could have produced evidence that would create doubt as to guilt. The only lay

witnesses identified by petitioner as wrongly omitted from the trial were friends

of the victim and teachers or other school officials who might have testified about

the victims’s school record or performance. The missing friends were persons to

whom the victim reported the alleged abuse. No evidence concerning their

possible testimony was offered; nothing suggests that they might have provided


                                          -9-
testimony that was exculpatory or otherwise helpful to the defense. Similarly,

petitioner did not proffer any school-related testimony or documents to show what

a better investigation in this area might have uncovered. 2 Other allegedly omitted

evidence bearing on the victim’s credibility, such as her statement during a

videotaped interview that she had to clean herself up after the first attack and had

difficulty walking the next day, was fairly presented at trial. (Aplt. App. at 298-

299, 300, 325-26.)

      As to experts, petitioner also failed to show how different conduct by

counsel would have affected the impact of their testimony. Dr. Gibbs, the

gynecologist, testified that his physical examination of the victim was

inconclusive as to whether she had had sexual intercourse. The factual

information contained in his letter – that there was no evidence of laceration, that

the hymenal band was present entirely throughout the vaginal opening, that a

small speculum could not be inserted without discomfort, and that a one-finger

digital examination revealed that introitus was adequate but rather tight – was

repeated during his trial testimony. ( Aplt. App. at 343.) The only statement

from Dr. Gibbs’ letter omitted at trial was that he “would be surprised if [the



2
  The record contains an affidavit of Mrs. Fernandez stating that her daughter’s
school and social activities did not appear to be affected. (Aplt. App. at 186.) As
discussed further below, however, this evidence was procured by petitioner in
August 1993, after the Utah Supreme Court’s decision.

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victim] was regularly sexually active.” (Aplt. App. at 703.) Petitioner argues that

this opinion could have been used to discredit the victim’s report that the sexual

abuse occurred repeatedly during the time interval between the two charged

incidents. Essentially the same opinion, however, was elicited during defense

counsel’s cross-examination of Dr. Gibbs. After confirming Dr. Gibb’s

testimony to be that the victim’s vaginal opening “was very small,” Mr. Judkins

asked whether “a woman who has been sexually active would have a large . . . as

opposed to a tight vaginal opening,” to which Dr. Gibbs responded: “Relatively

so.” (Aplt. App. at 107-08.) This testimony revealed the alleged inconsistency

between the medical evidence and the victim’s story of regular sexual abuse.

      Petitioner’s strongest complaint concerns Dr. Sazama’s psychological

opinion that the victim suffered from post-traumatic stress disorder (PTSD). His

testimony provided damaging evidence that a defense attorney should have sought

to prevent or discredit. Petitioner’s effort to prevail on this aspect of his

ineffective assistance claim, however, suffers from the same flaw as his other

complaints. Petitioner made no effort in state court to demonstrate that Mr.

Judkins might have successfully excluded Dr. Sazama’s rebuttal testimony or that

its substance was vulnerable to attack. The only record evidence drawing into

question Dr. Sazama’s diagnosis is an affidavit of Mrs. Fernandez stating that her

daughter did not exhibit many of the characteristics of a person suffering from


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PTSD. (Aplt. App. at 185-86.) It is unclear whether this affidavit was ever

presented to the state courts, but an examination of the affidavit reveals that it

postdates the Utah Supreme Court’s decision. (Aplt. App. at 53, 187.) According

to the appellate record, petitioner’s first attempt to present countervailing

psychological testimony came in federal court after the magistrate judge issued an

unfavorable report and recommendation, when petitioner submitted a summary of

proposed evidentiary issues and evidence at the district court’s request. (Aplt.

App. at 188-92.)

      As we understand petitioner’s argument on appeal, the federal district judge

could properly have considered this new evidence and made a de novo

determination of the ineffective assistance claim based on it. This argument is

incorrect. The district court did not conduct an evidentiary hearing, so

petitioner’s proposed evidence was never admitted. More importantly, the

AEDPA prohibited a federal court hearing under the circumstances. Petitioner

received an opportunity to present evidence in support of his ineffective

assistance claim in state district court. The record does not suggest that the state

courts imposed any limits on petitioner’s ability to introduce any evidence he

wished during trial proceedings on his post-conviction claim. To the contrary, it

was petitioner who actively opposed the State’s effort to expand the trial court




                                         -12-
record to include additional evidence. Thus any lack of evidence in the state

court record is entirely petitioner’s fault.

      Petitioner’s failure to develop the factual basis of his claim in state court

proceedings triggers 28 U.S.C. § 2254(e)(2), which establishes preconditions to

an evidentiary hearing in federal court. See Williams v. Taylor, 120 S. Ct. 1479,

1488 (2000) (defining the statute’s opening clause to require a “lack of diligence,

or some greater fault.”) Petitioner has made no effort to satisfy these conditions.

Therefore, the federal district court could not receive any additional evidentiary

matter submitted by petitioner.

      In summary, the evidence presented in the state court proceedings – during

petitioner’s criminal trial and post-conviction hearings – was insufficient to

establish a reasonable likelihood that, absent defense counsel’s alleged errors, the

jury would found reasonable doubt about petitioner’s guilt. Therefore, the Utah

Supreme Court neither erred nor acted unreasonably in rejecting petitioner’s claim

of ineffective assistance of trial counsel.

                                      Conclusion

      The judgment of the United States District Court for the District of Utah is

REVERSED. We remand the case to the district court with directions to enter a

judgment for respondents denying the petition for a writ of habeas corpus.


                                                     ENTERED FOR THE COURT

                                          -13-
       WAYNE E. ALLEY

       Senior District Judge




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