                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         AUG 8 2001
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


JAMES HELLUMS,

       Petitioner-Appellee and
       Cross-Appellant,
                                                 Nos. 00-2100 and 00-2109
v.                                                (District of New Mexico)
                                                 (D.C. No. CIV-96-63-MV)
JOE WILLIAMS, Warden,

       Respondent-Appellant and
       Cross-Appellee.




                          ORDER AND JUDGMENT *


Before SEYMOUR, HOLLOWAY, and MURPHY, Circuit Judges.


I. INTRODUCTION

      Petitioner James Hellums was convicted by a jury on eight counts of

criminal sexual penetration of a minor in the first degree (CSP) and two counts of

criminal sexual contact of a minor (CSC). See N.M. Stat. Ann. § 30-9-11(A), (C);

§ 30-9-13(A). On habeas review, the federal district court granted relief on the


      *
       This order and judgment is not binding precedent, except under the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.
CSP convictions, concluding the admission of expert testimony which vouched

for the victim’s credibility violated Hellums’ constitutional right to due process.

The district court denied relief on the CSC convictions. Respondent filed an

appeal from the grant of habeas on the CSP convictions; Hellums filed a cross-

appeal from the denial of habeas on the CSC convictions. Exercising jurisdiction

pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253, this court affirms the district

court.

II. BACKGROUND

         Hellums was charged by the state of New Mexico with sexually abusing his

adopted daughter in a ten-count indictment. The indictment arose from

allegations brought to the attention of the victim’s grandmother after a family

gathering in November 1989 in which the victim informed her grandmother that

her father had sexually touched her. Hellums ultimately was indicted on eight

counts of CSP, including one count of fellatio, one count of digital penetration of

the victim’s vagina, and one count of digital penetration of the victim’s anus for

the time period in which the Hellums family lived in an apartment. See N.M.

Stat. Ann. § 30-9-11(A), (C). In addition, he was indicted on one count of each

of these acts for the time period in which the family lived in a house. 1 The final



        The location of the sexual abuse is relevant to the testimony of the victim
         1

who described the time frame for the abuse in terms of where the family was
living at the time. The indictment charges Hellums with committing the specified

                                         -2-
two CSP counts charged Hellums with engaging in vaginal intercourse and anal

intercourse with the victim during the time period spanning the family’s

occupation of the apartment and the house. Hellums also was charged with two

counts of CSC. See id. § 30-9-13(A).

      After a jury trial, Hellums was convicted on all ten counts of the

indictment. The trial court sentenced Hellums to consecutive terms of eighteen

years for each of the CSP convictions and three years for each of the CSC

convictions, for a total of 150 years of which ninety years were suspended.

Hellums’ convictions were affirmed on direct appeal and his petition for post-

conviction relief was denied in state court proceedings. Hellums’ habeas petition

in federal district court, however, was granted with respect to the CSP convictions

based on the erroneous admission of expert testimony which vouched for the

victim’s credibility. The district court denied Hellums’ petition with respect to

the CSC convictions.

      Respondent appeals the district court’s grant of habeas relief on the CSP

convictions, claiming the admission of the expert’s erroneous testimony was

harmless. Hellums appeals the district court’s denial of habeas relief on the CSC



acts between October 25, 1985 and November 30, 1986 and again during the
period of time from December 1, 1986 to November 22, 1989. The first set of
dates corresponds with the time in which the family was living in an apartment;
the second set of dates corresponds with the time in which the family was living
in a house.

                                         -3-
convictions, alleging (1) his right to a fair trial was violated by the introduction of

expert testimony that vouched for the victim’s credibility; (2) his right to a fair

trial was violated by the admission of sexually-oriented physical evidence and

testimony; (3) his right to due process was violated because the evidence

presented at trial was insufficient to support his conviction; (4) he received

ineffective assistance of counsel during the state court proceedings; and (5) his

right to a definite deadline for retrial was violated.

III. DISCUSSION

      In reviewing the grant or denial of a petitioner’s habeas corpus petition,

this court accepts the district court’s factual findings unless they are clearly

erroneous and reviews its legal conclusions de novo. See Richmond v. Embry,

122 F.3d 866, 870 (10th Cir. 1997); Hill v. Reynolds, 942 F.2d 1494, 1495 (10th

Cir. 1991). The scope of this court’s review is limited to reviewing a petition only

for a violation of the Constitution, laws, or treaties of the United States. See

Romano v. Gibson, 239 F.3d 1156, 1166 (10th Cir. 2001); Jackson v. Shanks, 143

F.3d 1313, 1317 (10th Cir. 1998). A federal court may grant habeas corpus relief

due to state evidentiary errors only if the error was “so grossly prejudicial that it

fatally infected the trial and denied the fundamental fairness that is the essence of

due process.” See Williamson v. Ward, 110 F.3d 1508, 1522 (10th Cir. 1997).

Because Hellums filed his habeas corpus petition before the effective date of the


                                           -4-
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), pre-AEDPA

standards apply to the case. See Moore v. Gibson, 195 F.3d 1152, 1160-61 (10th

Cir. 1999). 2

A. Expert Testimony

       At Hellums’ trial, the state elicited testimony from several witnesses who

examined the victim after the alleged sexual abuse came to light. Two of the

witnesses were Julia Barker, a child and family counselor, and Dr. Robert

Zussman, a clinical psychologist. In seeking habeas relief below, Hellums alleged

both of these expert witnesses impermissibly vouched for the victim’s credibility

by indicating that they believed her allegations. Hellums claimed the vouching

invaded the jury’s province to determine the victim’s credibility in violation of

his right to due process.


       2
         Because this appeal was filed after the effective date of the AEDPA,
Hellums was required to obtain a certificate of appealability (COA). See Slack v.
McDaniel, 529 U.S. 473, 481-82 (2000) (holding the post-AEDPA version of 28
U.S.C. § 2253 controls petitioner’s right to appeal denial of habeas relief when
appeal is filed after effective date of AEDPA). Respondent claims the district
court issued a COA only on the issue of the expert witness testimony relating to
the victim’s credibility. Hellums, on the other hand, argues the district court
issued a blanket COA to its order denying relief on the other issues Hellums
raised in his habeas petition. Cf. LaFevers v. Gibson, 182 F.3d 705, 710-11 (10th
Cir. 1999) (noting that blanket COAs are improper but that once COA is granted,
even if erroneously, this court must review the merits). Regardless of whether the
district court granted a blanket COA, this court concludes Hellums made a
“substantial showing of the denial of a constitutional right” which leads this court
to grant a COA as to the issues Hellums raises on appeal. See 28 U.S.C. §
2253(c)(2).

                                         -5-
      Adopting the magistrate’s report and recommendation (R & R), the district

court agreed with Hellums with respect to Barker’s testimony. The district court

granted habeas relief on the CSP convictions but denied such relief as to the CSC

convictions. Hellums objected to the magistrate’s R & R with respect to the CSC

convictions. Respondent filed an untimely objection to the R & R with respect to

the CSP convictions. On appeal, Hellums claims he was denied a fair trial and

requests this court to reverse the district court’s denial of habeas relief on his

CSC convictions. Respondent seeks a reversal of the grant of habeas relief on

Hellums’ CSP convictions.

      New Mexico’s evidentiary rule on admissible expert testimony corresponds

with the federal rule. Both rules allow experts to testify if their testimony will

assist the trier of fact in understanding the evidence or determining a fact in issue.

See N.M.R. Ann. 11-702; Fed. R. Evid. 702. In abuse cases, experts may testify

that an alleged victim suffers from symptoms consistent with sexual abuse. See

United States v. Charley, 189 F.3d 1251, 1264 (10th Cir. 1999); State v. Alberico,

861 P.2d 192, 210 (N.M. 1993). Experts, however, may not comment on the

alleged victim’s credibility. See United States v. Whitted, 11 F.3d 782, 785-86,

787 (8th Cir. 1993); Alberico, 861 P.2d at 210-11. Such comments exceed the

scope of the expert’s specialized knowledge and merely inform the jury that it

should reach a particular conclusion rather than allowing the jury to decide the


                                           -6-
ultimate issue of sexual abuse. See United States v. Shay, 57 F.3d 126, 131 (1st

Cir. 1995). Expert testimony, based on the statements of an alleged victim, that

sexual abuse in fact occurred is inadmissible. See Charley, 189 F.3d at 1267;

State v. Lucero, 863 P.2d 1071, 1075 (N.M. 1993); Alberico, 861 P.2d at 211.

Statements that assume the fact of abuse are also inadmissible. See Charley, 189

F.3d at 1270.

      During her testimony at trial, Barker consistently made statements in which

she assumed the truth of the victim’s allegations or affirmatively indicated that

the abuse had occurred based on the victim’s statements to her. For example,

Barker testified that it was clear to her that the victim “has her own memory of

incidents of fellatio.” Even Respondent concedes that Barker’s testimony

constituted impermissible vouching.

      Zussman, on the other hand, generally followed the rule which allows an

expert to testify that an alleged victim suffers from symptoms consistent with

sexual abuse. He testified that the victim’s “behavior and her psychological test

results were consistent with what both the research and [his] clinical experience

indicates is commonly found in child sexual abuse.” On cross-examination,

however, one of Zussman’s lengthy responses to a question posed by Hellums’

counsel clearly went beyond both the scope of admissible testimony and the

questioning by counsel. In addressing whether he thought some of the victim’s


                                         -7-
behavioral problems stemmed from her dysfunctional family, Zussman indicated

that the victim’s behavior was typical of sexual abuse victims but may have

resulted from dysfunctional family dynamics as well. This statement was

permissible testimony under the state evidentiary rules. See Alberico, 861 P.2d at

210 (permitting expert testimony that an alleged victim suffers from symptoms

consistent with sexual abuse). After having answered the question posed by

counsel, however, Zussman continued to testify that he found no reason to

question the victim’s allegations of sexual abuse. In this part of Zussman’s

testimony, he plainly invaded the jury’s province to determine whether the victim

was credible. Zussman’s statements informed the jury that it should reach a

particular conclusion rather than allowing it to draw inferences from his

testimony on the ultimate issue of sexual abuse.

      The erroneous admission of Barker’s and Zussman’s testimony provides a

foundation for habeas relief only if this court determines that it was prejudicial

under the harmless-error analysis. See Brecht v. Abrahamson, 507 U.S. 619, 637-

38 (1993). The proper inquiry does not focus on whether, without the

inadmissible testimony, there was sufficient evidence to convict Hellums on the

CSC and CSP charges. See Kotteakos v. United States, 328 U.S. 750, 765 (1946).

Rather, this court must determine whether, in light of the entire record, Barker’s

or Zussman’s testimony so influenced the jury that it had a substantial and


                                          -8-
injurious effect in determining the jury’s verdict. See Brecht, 507 U.S. at 638;

Tuttle v. Utah, 57 F.3d 879, 884 (10th Cir. 1995); Brewer v. Reynolds, 51 F.3d

1519, 1529 (10th Cir. 1995).

      1. CSC Convictions

      To convict Hellums on the CSC counts, the jury was compelled to find

Hellums unlawfully and intentionally touched or applied force to the intimate

parts of the victim. See N.M. Stat. Ann. § 30-9-13. Unlawful touching occurs

when the touching is done to arouse or gratify sexual desire or to otherwise

intrude upon the bodily integrity of a minor. See State v. Osborne, 808 P.2d 624,

631 (N.M. 1991).

      Hellums’ admissions with respect to the CSC counts were devastating to his

defense and overwhelmingly compelling even in light of the impermissible

vouching. Prior to his arrest, Hellums spoke with Detective Babcock about the

allegations of sexual abuse. The conversation was taped and played for the jury

during the state’s presentation of evidence at trial. During the interview, Hellums

admitted to touching his daughter’s “sex parts” three-and-a-half years prior to

their conversation. 3 Hellums asserted, “I did probably fondle her and caress her a

couple times.” He defined fondling and caressing as touching her “sexual



      3
       The time specified in the indictment during which the CSC was alleged to
have occurred corresponds with the period of time described by Hellums.

                                         -9-
organs.” Babcock questioned Hellums about the details of the fondling, asking

whether his finger ever penetrated the victim. Hellums replied, “No, because I

knew it would hurt her if I did, and I had no intention of hurting her.” Babcock

further asked whether Hellums touched her over or under her clothing. Hellums

responded, “Mostly over clothing. I think one time I run [sic] my finger over her

skin, touched her [labia].” Detective Babcock asked Hellums whether it was

pleasurable to touch the victim, to which he replied, “After I did it and thought

about it, not really.” Babcock asked if it was pleasurable at the time, and Hellums

responded, “I guess I thought so.”

      Hellums further hurt his credibility by changing his testimony at trial from

the statements he made during the taped conversation with Babcock. At trial,

Hellums admitted that he accidentally touched his daughter but indicated that he

had no intent to become sexually aroused by doing so. On cross-examination, the

state read the portion of the taped conversation to Hellums in which he admitted

to being aroused at the time he touched his daughter. When questioned by the

prosecution about whether the statement was true, Hellums responded, “Yes, sir,

if that’s what’s written down there, then I would say it probably is. Has to be.”

      Hellums contradicted himself again at trial when he described the

circumstances surrounding the incidents of the touching for which he could

remember the details. When talking to Babcock, Hellums initially indicated that


                                         -10-
he put his hand between the victim’s legs when he was tickling her, and later in

the interview he indicated that he put his hand between her legs when she went

over to give him a hug while he was watching television. At trial, however,

Hellums testified that he had put his hand between his daughter’s legs only to

warm her legs after she had been outside in the cold.

      In the context of Hellums’ admissions and credibility problems, this court

concludes that the inadmissible expert testimony was harmless. Regardless of

how Barker and Zussman may have bolstered the victim’s credibility, Hellums

devastated his own defense. Given his admissions and inconsistent statements,

the vouching testimony was not prejudicial to Hellums on the CSC charges.

      2. CSP Convictions

      On appeal, Respondent claims the district court erred in granting Hellums

habeas relief on the CSP convictions because Barker’s testimony constituted

harmless error. Respondent, however, failed to file a timely objection to the

magistrate’s R & R. When a party fails to timely object to a magistrate’s R & R,

this court applies a firm waiver rule which bars appellate review. See Vega v.

Suthers, 195 F.3d 573, 579 (10th Cir. 1999). The waiver rule does not apply,

however, if the interests of justice demand otherwise. See Theede v. United

States Dep’t of Labor, 172 F.3d 1262, 1268 (10th Cir. 1999). This court has

under certain circumstances reviewed the merits of a claim, as one factor among


                                        -11-
many, in deciding whether to apply the “interests of justice” exception to the

waiver rule. See Key Energy Res. Inc. v. Merrill (In re Key Energy Res. Inc.),

230 F.3d 1197, 1200 (10th Cir. 2000); Vega, 195 F.3d at 580 n.7; Theede, 172

F.3d at 1268.

      Assuming, without deciding, that such an analysis is appropriate in the

context of this case, this court concludes that there is little merit to Respondent’s

claim that Barker’s testimony constitutes harmless error with respect to the CSP

convictions. Unlike Hellums’ compelling admissions in support of the CSC

convictions, Hellums made no such admissions in support of the CSP convictions.

Neither during the taped conversation with Detective Babcock nor at trial did

Hellums admit to penetrating the victim. Given the absence of any admissions in

the context of the impermissible vouching, this court’s decision to apply the firm

waiver rule is consistent with the “interests of justice.” The district court’s grant

of habeas on the CSP convictions is therefore affirmed.

B. Hellums’ Remaining Claims

      1. Sexually-Oriented Evidence and Testimony

      Hellums also claims he was denied a fair trial as to the CSC convictions

because of the admission at trial of sexually-oriented physical evidence and

testimony. Specifically, Hellums asserts the trial court impermissibly admitted

(1) pornographic photographs and sexually-oriented books seized during the


                                         -12-
search of his house; (2) testimony by Detective Babcock that he found

pornographic magazines and videos, a vibrator, and anal lube in Hellums’ house;

and (3) testimony by the victim’s grandmother that Hellums had rubbed against

her chest in a sexual manner. Hellums argues that at the very least the cumulative

effect of the inadmissible evidence deprived him of a fundamentally fair trial.

Although this court closely examined the record with respect to Hellums’ claims,

we need not spend much time discussing them. Even assuming admission of the

pornographic photographs, sexually-oriented books, and testimony was improper,

the error—cumulative or not—was harmless in light of the devastating nature of

Hellums’ admissions.

      2. Sufficiency of the Evidence Claims

      Hellums claims the government presented insufficient evidence at trial to

support the eight counts of CSP and two counts of CSC on which he was

convicted. The district court rejected his arguments below. This court reviews

the district court’s determinations de novo. See Maes v. Thomas, 46 F.3d 979,

988 (10th Cir. 1995). In reviewing a sufficiency of the evidence claim, this court

must view the evidence in the light most favorable to the government and

determine whether any rational trier of fact could have found the essential

elements of each crime beyond a reasonable doubt. See Romano, 239 F.3d at




                                        -13-
1164. This court, however, neither weighs the evidence nor considers witness

credibility. See Wingfield v. Massie, 122 F.3d 1329, 1332 (10th Cir. 1997).

      Because this court affirmed the district court’s grant of habeas relief on the

CSP convictions, we need not examine Hellums’ sufficiency claim with respect to

these convictions except to analyze the Double Jeopardy implications. To

determine whether Double Jeopardy bars retrial on the CSP counts, this court

must examine all of the evidence from trial, including erroneously admitted

evidence. See Lockhart v. Nelson, 488 U.S. 33, 34 (1988) (holding when “the

evidence offered by the State and admitted by the trial court—whether

erroneously or not—would have been sufficient to sustain a guilty verdict, the

Double Jeopardy Clause does not preclude retrial”); see also United States v.

Wacker, 72 F.3d 1453, 1465 (10th Cir. 1996). Double Jeopardy would preclude

retrial of Hellums on the CSP charges if this court were to determine that there

was insufficient evidence to convict him even with the inadmissible evidence

detailed above. See Lockhart, 488 U.S. at 40.

      At trial, the state amassed a significant amount of testimony against

Hellums. The victim testified by videotaped deposition that Hellums made her

“suck on his private part” more than once while they were living in the apartment

and the house. She testified that one time ejaculate came out of Hellums penis

and went into her mouth. The victim also testified that Hellums put his penis


                                        -14-
inside of “[her] back private and [her] front private.” She indicated that this

happened more than once.

      Detective Babcock testified that the victim indicated to him that Hellums

stuck “his private in [her] private.” Specifically, she told the detective that her

dad stuck his penis in her anus on numerous occasions. The state also relied on

Dr. Carol Geil who testified that the victim told her during a medical evaluation

that Hellums “always does the ‘F’ word with me,” “he sticks his finger up my

private,” and “makes me suck his private.” Dr. Geil further testified that her

medical examination findings were “consistent with the history that [the victim]

gave” even though they were “nonspecific in terms of the other overall findings.”

She indicated that there was “increased vascularity of [the victim’s] hymenal

area” that could have been caused by “rubbing or traumatic injury to the area.”

Dr. Geil indicated that there was more rounding in the victim’s hymeneal area

than she normally sees, which was consistent with non-accidental trauma.

Another doctor called by the state, Dr. Kathleen Christopherson, testified that the

victim told her that Hellums had “stuck his finger in her private” many times.

      Hellums’ wife, Mary, testified that her daughter had told her about the

alleged sexual abuse a few years prior to the criminal charges being filed against

Hellums. Specifically, the victim told Mary that she had engaged in fellatio with




                                         -15-
her father. Mary further testified that Hellums admitted to putting his penis in

their daughter’s vaginal area.

      Even though some of their testimony was improperly admitted at trial, the

testimony of Barker and Zussman also supports the CSP convictions. Barker

testified that the victim indicated that Hellums had put his penis in her mouth.

Barker further testified that the victim’s emotional functioning and coping were

consistent with children who have experienced extensive abuse over time from a

young age. Zussman testified that the conclusion he reached based on his

evaluation of the victim was that her behavior and psychological test results were

consistent with other sexually-abused children.

      Hellums claims the inconsistencies in the victim’s testimony regarding the

allegations suggest that no reasonable juror could find her credible or convict him

on the specified charges. It is true that the young girl had difficulty specifying

the actual dates of the sexual abuse and her age at the time of the abuse. She was

definitive, however, in her statements about the particular locations in which the

abuse occurred, specifying that the abuse began while her family was living in the

apartment and continued after they moved to the house. The charges in the

indictment corresponded to these two time periods. Simply because an eight year

old child defines a period of time based on her residence in a specific location

rather than by the specific dates does not make her “wholly incredible” as


                                         -16-
Hellums suggests. Although Hellums denied his daughter’s allegations at trial,

the jury was entitled to credit her testimony over Hellums’ conflicting testimony.

See United States v. Valadez-Gallegos, 162 F.3d 1256, 1262 (10th Cir. 1998).

      An examination of the evidence presented at trial compels this court to

conclude that there was sufficient evidence to convict Hellums on the CSP counts.

Because there was no failure to produce sufficient evidence at trial on the CSP

charges, Double Jeopardy does not bar the state from retrying Hellums.

      With respect to the CSC counts, this court must determine whether

Hellums’ sufficiency claim requires this court to grant habeas relief. The

evidentiary sufficiency inquiry requires this court to examine whether there was

sufficient evidence to support the convictions without the inadmissible evidence.

See United States v. Tome, 61 F.3d 1446, 1455 (10th Cir. 1995) (contrasting the

analyses for the harmless-error inquiry, in which the analysis includes an

examination of the erroneously admitted evidence in light of the entire record,

and the evidentiary sufficiency inquiry, in which the inadmissible evidence is

omitted from the analysis altogether and only the properly admitted evidence is

examined).

      The victim testified that Hellums touched her “private parts” during the

time they lived in the apartment and the house. She further testified that Hellums

put his penis on the outside of “[her] back private and [her] front private.” Mary


                                        -17-
testified that Hellums admitted to her that he had touched their daughter and he

apologized to Mary for doing so. Dr. Geil testified that Mary indicated that her

daughter had told her a couple years before about Hellums “touching her in her

private parts.” Dr. Geil indicated that Mary told her that Hellums admitted to

touching their daughter and claimed to want help to stop touching her. A social

worker corroborated Dr. Geil’s testimony regarding Mary’s statements about

Hellums’ admission. Most devastating to Hellums, however, was his own

admission that he had fondled his daughter. Even setting aside the improperly

admitted evidence from trial, the admissible evidence overwhelmingly supports

the jury’s decision to convict Hellums on the CSC charges.

      3. Ineffective Assistance of Counsel Claim

      Hellums claims he was deprived of his right to effective assistance of

counsel in the state court proceedings. He asserts that his counsel failed to object

to the admission of the vouching testimony and failed to investigate evidence that

the photographs of a young girl performing fellatio on an adult male, which were

admitted at trial, were taken on film that was no longer manufactured at the time

the alleged sexual abuse occurred with his daughter. Because Hellums has

already obtained habeas relief on the CSP convictions, this court analyzes his

ineffective assistance claim only to determine whether habeas relief should be




                                         -18-
granted on the CSC convictions. This court reviews Hellums’ claim de novo. See

Houchin v. Zavaras, 107 F.3d 1465, 1469 (10th Cir. 1997).

      To prevail on his claim, Hellums must demonstrate that (1) counsel’s

performance was objectively deficient, and (2) counsel’s deficiency prejudiced

the defense such that, but for counsel’s errors, there is a reasonable probability

that the outcome of the trial would have been different. See Gonzales v. McKune,

247 F.3d 1066, 1072 (10th Cir. 2001) (citing Strickland v. Washington, 466 U.S.

668 (1984)). Hellums claims his counsel not only prejudicially failed to object to

the expert testimony at trial but that he further exacerbated its prejudicial impact

on cross-examination by eliciting more vouching testimony. Hellums also asserts

the photographs of what the state claimed to be the victim performing fellatio on

Hellums constituted the most prejudicial physical evidence admitted by the state

at trial because the photographs directly supported the offense for which he was

charged. This court concluded above, however, that admission of the vouching

testimony and the pornographic photographs was harmless error with respect to

the CSC convictions in light of the devastating nature of Hellums’ admissions.

Thus, even assuming counsel’s performance was rendered deficient by his failure

to object to the vouching testimony and failure to investigate the production date

of the film used for the pornographic photographs, Hellums cannot establish that




                                         -19-
he was prejudiced by the deficiency. Without counsel’s errors, it is highly

unlikely that the trial outcome would have been different.

      4. Timing of Retrial

      In his brief-in-chief, Hellums maintains the district court erred by giving

discretion to the state trial court to determine the date by which he must be

retried. Hellums asserts that is it the responsibility of the federal habeas court to

set a definite deadline for retrial. In his reply brief, however, Hellums indicates

that in ruling on Respondent’s motion to stay the grant of habeas on the CSP

convictions, the district court “orally ordered that the state retry Mr. Hellums

within five months of when the court’s granting of habeas relief becomes final on

appeal.” Because Hellums has already obtained the relief he requested, this issue

is moot.

III. CONCLUSION

      For the reasons set forth above, this court AFFIRMS the district court.



                                                 Entered for the Court



                                                 Michael R. Murphy
                                                 Circuit Judge




                                          -20-
