* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 19 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GARY SHERMAN JONES, Petitioner-Appellant,

v. JOHN SUTHERS, Executive Director of Colorado Department of Corrections, Respondent-Appellee. No. 03-1414 (District of Colorado) (D.C. No. 00-MK-1605 (CBS))

ORDER AND JUDGMENT *

Before SEYMOUR , HOLLOWAY , and MURPHY , Circuit Judges.

I. INTRODUCTION After a five-day trial, a Colorado jury found Gary Jones guilty of child abuse and sexual assault on a child. In a postconv iction motion in state court,-2-

Jones argued that his trial counsel’s failure to re tain and call an expert witness infringed his Sixth Amendment right to the effectiv e assistance of counsel. After the state courts denied his claim, Jones filed an application for writ of habeas corpus under 28 U.S.C. § 2254. The district court denied the application and issued a certificate of appealability. Exercising jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(c), this court affirms the decision of the district court.
II. BACKGROUND Jones’ convictions stem from the sexual abuse of hi s four-year-old stepdaughter, R.F. At trial, Jones’ counsel did no t attempt to dispute the medical evidence that R.F. had been sexually abused. Inste ad, she advanced the theory that R.F.’s biological father was the actual perpet rator of the abuse. R.F. and her six-year-old brother lived with their mother and Jo nes in Gypsum, Colorado, but visited their father in Denver on alternate weekend s. The prosecution’s key witness at trial was Dr. Patr ick Bacon, an expert in child psychiatry. Dr. Bacon testified extensively about approximately one hundred hours of videotaped therapy sessions he con ducted with R.F. During the first eight weeks of these sessions, he testified t hat R.F. was anxious and unwilling to talk about the abuse. As she became m ore comfortable, Dr. Bacon testified that R.F. began speaking of a “bad guy” w ho was only bad when she was alone with him. R.F. also told Dr. Bacon on severa l occasions that Jones had hurt-3-

her and that she was frightened by him. Approximat ely four and one half months after beginning therapy, R.F. first told Dr. Bacon that Jones had put his finger into her vagina. Jones’ counsel vigorously cross-examined Dr. Bacon but did not call another expert witness in rebuttal. The jury also heard from other witnesses linking Jo nes with the abuse. The girlfriend of R.F.’s father testified that when she asked R.F. if anyone had hurt or touched her, R.F. replied that “Gary said it’s a se cret.” Dr. Hendrika Cantwell of Denver Social Services testified that she asked R.F . if someone had touched her in her vaginal area, and that R.F. responded “Gary does that.” R.F.’s aunt testified that R.F. told her that Jones had hurt he r “gina” “with his finger.” R.F.’s father also testified at trial that R.F. told him s he hated Jones because “he hurt [her] where [she goes] to the bathroom.” The jury found Jones guilty of sexual assault on a child and child abuse resulting in serious bodily injury to R.F.’s vagina . After his conviction was upheld on appeal, Jones filed a motion for postconv iction relief in Colorado state district court. Jones argued that his counsel was ineffective for failing to hire an expert in child interview techniques to rebut Dr. B acon’s testimony. At an evidentiary hearing, Jones called Dr. John Yuille, a professor of psychology at the University of British Columbia who specializes in m ethods of interviewing children. Dr. Yuille reviewed the videotaped therapy sessions and criticized Dr.-4-

Bacon’s use of suggestive and repetitive questions, his decision to allow others in the room during therapy sessions, and his “very str ong bias” against Jones. Dr. Yuille also found fault with Dr. Bacon’s utilizatio n of “play therapy,” his conclusion that R.F. suffered from posttraumatic st ress disorder, and his use of symbolic interpretation, such as his association be tween R.F.’s mention of snakes and phallic symbols. Dr. Yuille testified that Dr. Bacon’s techniques were “seriously profoundly inappropriate” and were knownto produce false allegations in children. He concluded that “this was an exampl e of how not to conduct an investigative interview with a preschool aged child .” After the district court heard the testimony of Dr. Yuille, expert witnesses on both sides, and Jones’ trial counsel, the court issued a written order denying Jones’ motion. The Colorado Court of Appeals affirmed, and the Colorado Supreme Court denied certiorari. Jones next filed a 28 U.S.C. § 2254 application forwrit of habeas corpus in the United States District Court for the District o f Colorado, raising five claims. The district court concluded that three of the clai ms were procedurally barred and denied the remaining two claims on the merits. Jon es appeals only the district court’s denial on the merits of his ineffective ass istance of counsel claim.-5-

III. STANDARD OF REVIEW Because Jones’ claim was adjudicated on the merits in state court, Jones is entitled to § 2254 relief only if he can establish that the state court decision “was contrary to, or involved an unreasonable applicatio n of, clearly established federal law, as determined by the Supreme Court of the Unit ed States,” or “was based on an unreasonable determination of the facts in lightof the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1 )–(2). This court presumes that state court factual findings are correct and p laces the burden on the habeas applicant to rebut this presumption with clear and convincing evidence. Id. § 2254(e)(1).
IV. DISCUSSION Jones claims on appeal that his Sixth Amendment rig ht to the effective assistance of counsel was violated when his trial c ounsel failed to retain an expert witness to demonstrate that Dr. Bacon used improperinterview techniques in his work with R.F. Jones argues that his counsel was d eficient both in failing to investigate Dr. Bacon’s methods with an expert befo re trial, and in failing to call an expert witness at trial to rebut Dr. Bacon’s tes timony. A. Failure to investigate Jones first argues that the state courts erred by i gnoring his claim that counsel failed to conduct an adequate pretrial inve stigation. The state district-6-

court, however, did find that counsel had reviewed the approximately one hundred hours of videotaped therapy sessions and had recogn ized the need to carefully examine Dr. Bacon’s methodology. Furthermore, the court found that counsel consulted with another experienced attorney and wit h psychologist Dr. Suzanne Bernhard in preparing for trial. The court noted t hat Dr. Bernhard did not find serious problems with Dr. Bacon’s interview methods after reviewing a portion of the videotapes, but that counsel “received valuable information and advice on cross-examining Dr. Bacon and eliciting information favorable to the defendant.” Recognizing that “[a]n attorney’s decision not to i nterview certain witnesses, and to rely on other sources of information, if made in the exercise of reasonable professional judgment, does not amount to ineffecti ve assistance of counsel,” the court concluded that counsel’s investigation under these circumstances was a reasonable exercise of professional judgment. Thes e statements by the court indicate that it adequately considered and rejected Jones’ failure-to-investigate claim on the merits. Jones disputes the court’s factual finding that his counsel reviewed the one hundred hours of videotaped sessions. He points out that counsel actually utilized teams of non-lawyers to conduct the review, consist ing of her husband, staff from her office, Jones, and Jones’ family. Fairly read, however, the state court’s order is not inconsistent with the fact that counsel dele gated some of the work to others.1 The district court did not make explicit factual fi ndings regarding Dr.

Bernhard’s qualifications or the adequacy of her re view of the videotapes. These findings, however, were implicit in the court’s con clusion that counsel’s reliance on Dr. Bernhard was reasonable. The presumption of correctness of a state court’s factual findings in the context of an appli cation for writ of habeas corpus applies to implicit as well as explicit findings of fact. Weeks v. Snyder , 219 F.3d 245, 258 (3d Cir. 2000).
-7- The state court never suggested that counsel had re viewed all the tapes personally. Nor is it particularly significant that some delegation occurred. Counsel gave team members verbal and written instru ctions on how to review the tapes, and told them to notify her if they found anything of significance. Jones does not demonstrate why it would have been necessary for his counsel personally to review every hour of the videotaped sessions. C onsidering the enormity of the task, it was not unreasonable to delegate some of t he work to lay volunteers. Jones also disputes the factual bases behind the st ate court’s conclusion that counsel’s consultation with Dr. Bernhard const ituted reasonable pretrial investigation. Jones claims that Dr. Bernhard was not qualified to critique child interview techniques, and that her review of only asmall sample of the videotaped sessions was insufficient for her to form a reasonable opinion about Dr. Bacon’s methods. 1 Jones has not produced any evidence, however, that Dr. Bernhard lacked the requisite qualifications. Tria l counsel testified at the postconviction hearing that Dr. Bernhard was recomm ended by her supervisor as someone who had experience in child sexual assault issues and had testified2 Jones attempts to rely on Dr. Bernhard’s resume as evidence that she was

unqualified. Although Jones is correct that Dr. Be rnhard’s resume contains no reference to formal training in child interview tec hniques, it does show that she had experience in child therapy, sexual abuse, and forensic psychology. Furthermore, counsel’s supervisor testified at the postconviction hearing that Dr. Bernhard had wide experience dealing with sexual ab use and the interviewing of children. Standing alone, the resume is therefore insufficient to demonstrate that Dr. Bernhard lacked sufficient qualifications. See Affinito v. Hendricks , 366 F.3d 252, 258-59 (3d Cir. 2004) (holding that the determ ination of which psychiatric expert to consult is a tactical decision for which counsel is afforded wide latitude).
-8- previously in sexual assault cases. Dr. Bernhard h erself represented to Jones’ counsel that she was qualified to evaluate Dr. Baco n’s methodology. 2 Nor has Jones demonstrated that the portions of video selec ted by counsel for review by Dr. Bernhard were unrepresentative of the sessions as a whole. Considering the strong presumption of counsel’s effectiveness, this court cannot presume that counsel selected an inadequate sample. See Strickland v. Washington , 466 U.S. 668, 690 (1984). Jones has therefore failed to dem onstrate that the state court’s findings were either unreasonable or contradicted b y clear and convincing evidence. In addition to contending that the state court’s or der reflects an unreasonable determination of the facts, Jones also argues that the court’s conclusion was both contrary to and an unreasonable application of Strickland v. Washington . A state court determination is contrary to clear ly established federal law “if the state court applied a rule different fr om the governing law set forth in-9-

Supreme Court cases, or if it decides a case differ ently than the Supreme Court has done on a set of materially indistinguishable f acts.” Turrentine v. Mullin , 390 F.3d 1181, 1189 (10th Cir. 2004) (quotation and alt erations omitted). In its written order, the state district court properly explained that Jones’ burden under Strickland

was to show that (1) his counsel’s performance was deficient, and (2) the deficient performance prejudiced his defense. See Strickland, 466 U.S. at 687. The court concluded that Jones had not met hi s burden under Strickland ’s first prong because he had failed to demonstrate “t hat trial counsel’s performance fell below an objective standard of professional co nduct for criminal defense counsel.” The court therefore did not consider whe ther Jones had established prejudice under Strickland ’s second prong. Nothing in the Colorado district court’s order is contrary to Strickland

. A state court unreasonably applies federal law when it “correctly identifies the governing legal principle from Supreme Court de cisions but unreasonably applies it to the facts of the particular case.” Turrentine , 390 F.3d at 1189 (quotation and alteration omitted). The Colorado d istrict court in this case was not unreasonable to conclude that counsel’s investi gation was adequate. Counsel interviewed Dr. Bacon and recognized that it was important for an expert to review his methodology. Accordingly, counsel consu lted Dr. Bernhard, who informed her that, although “there were some proble ms with the way Dr. Bacon-10-

had conducted the interview and subsequent therapy, ” “that overall the job he had done was not too bad.” Counsel also consulted repe atedly with her supervisor at the public defender’s office and with at least two other experienced lawyers in preparing for the cross-examination of Dr. Bacon. One of the attorneys consulted had experience in trying and teaching defense attor neys how to try complex child sexual assault cases. In addition, counsel conduct ed her own extensive research into child interview techniques and brought to bearher experience from a recently completed sexual assault case in which she had cros s-examined a psychiatrist on the proper methodology for interviewing children. Because the record demonstrates that Jones’ counsel thoroughly prepare d for trial, it was not an unreasonable application of federal law to conclude that counsel’s pretrial investigation was not constitutionally ineffective for failure to seek out additional experts. See Strickland, 466 U.S. at 691 (noting that counsel is not ineff ective for making a “reasonable decision that makes particularinvestigations unnecessary”). B. Failure to call an expert witness at trial Jones next claims that his trial counsel was ineffe ctive for failing to call an expert witness at trial to rebut Dr. Bacon’s testim ony. In addressing this claim, the state district court credited counsel’s explanation that she feared calling an expert witness would open the door to evidence of f our prior sexual assault allegations against Jones. Based on this testimony , the court found that counsel’s-11-

decision not to call an expert was “one of trial st rategy.” On appeal, the state appellate court concluded that “the record supports the trial court’s finding that counsel’s decision not to call a rebuttal expert wa s a tactical choice.” The conclusion of the Colorado courts that counsel’s de cision was based on trial strategy is a finding of fact. Bryan v. Mullin , 335 F.3d 1207, 1221 n.17 (10th Cir. 2003). In reviewing a state court factual finding, this court “asks whether it represented an unreasonable determination of the fa cts in light of the evidence presented, and gives the state court’s determinatio n a presumption of correctness that can be rebutted only by clear and convincing e vidence.” Hogan v. Gibson , 197 F.3d 1297, 1306 (10th Cir. 1999) (citations, qu otation, and alterations omitted). Jones argues that the state district court’s findin g was unreasonable because counsel’s fear of opening the door to past-acts tes timony was “wholly without factual support and unfounded in the Colorado Rules of Evidence.” After reviewing the record, this court cannot agree that the court’s finding was either unreasonable or contradicted by clear and convincin g evidence. Counsel testified that she consulted with three other attorneys aboutthe evidentiary issues and was advised to avoid the risk of calling an expert. Pr ior to trial, the judge warned counsel in chambers that the prosecutor would be al lowed to present the past-acts evidence “if the door is even so much as cracked,” and the prosecutor stated that-12-

if the door was opened he was “going to drive a tru ck through it.” Counsel feared that questioning an expert about Dr. Bacon’s method ology might disclose the expert’s knowledge that Dr. Bacon was aware of the allegations of prior sexual misconduct, and that this influenced the way Dr. Ba con interacted with R.F. She was particularly worried that questions about Dr. B acon’s bias against Jones would open the door to admission of the foundation for the bias, which was Dr. Bacon’s knowledge of the allegations of prior misco nduct. Counsel testified that admission of this evidence would have “gutted the d efense.” Even if Jones is correct that Colorado evidentiary law would not ordinarily have allowed admission of the past-acts evidence, h is counsel could legitimately have feared that she would unwittingly lay the grou ndwork for the evidence’s admissibility. Counsel’s supervisor warned her bef ore trial that calling an expert witness could “blow[] up on you,” and counsel testi fied at the postconviction hearing that this was not a risk she was willing to take. Jones argues that counsel could have neutralized the risk of calling an expert with a motion in limine, but counsel testified that she did not “take a lot of c omfort” from pretrial rulings because the judge might change his mind if the dire ct examination of the expert took an unexpected turn. Her supervisor agreed that in the “uncontrolled environment” of direct examination, counsel would b e “running a huge risk that is not resolved by a limine motion” because the expertmay inadvertently say3 Jones cites Pavel v. Hollins , 261 F.3d 210 (2d Cir. 2001), and Lindstadt v.

Keane , 239 F.3d 191 (2d Cir. 2001), which involve decisi ons not to call expert witnesses when counsel was not versed in the subjec t matter of the case and did
-13- something that opens the door. Even Jones’ expert on criminal defense at the postconviction hearing admitted that he could “imag ine some way” the door could inadvertently be opened. Jones contends that his counsel nevertheless riskedopening the door to the same issues she was trying to avoid by questioning Dr. Bacon about his bias in cross-examination. Counsel testified, however, that she felt she would have far more control over the witness in cross-examination and could thus better avoid the risk of inadvertently opening the door. See United States v. Maxwell , 966 F.2d 545, 548-49 (10th Cir. 1992) (holding that def ense counsel was not ineffective for foregoing expert testimony and rely ing instead on crossexamination in order to avoid opening the door to e vidence of prior convictions) ; see also Reinert v. Larkins , 379 F.3d 76, 95 (3rd Cir. 2004) (holding that cou nsel was not constitutionally ineffective for failing to call expert witness in rebuttal when counsel “thoroughly cross-examined” the state’ s witnesses); Coleman v. Calderon , 150 F.3d 1105, 1115 (9th Cir. 1998), rev’d on other grounds , 525 U.S. 141 (1998) (holding that counsel was not ineffectiv e for failing to call an expert when counsel consulted with an expert prior to tria l and conducted an effective cross-examination). 3not consult with an expert prior to trial. See Lindstadt , 239 F.3d at 202 (noting

that counsel was “hamstrung” by his failure to enga ge in any research prior to cross-examination of the state’s expert witness). In contrast, Jones’ counsel thoroughly prepared and conducted an effective cros s-examination of Dr. Bacon. Jones also cites Paine v. Massie , in which this court concluded that counsel was deficient for failing to call an expert witness to testify on the subject of battered woman syndrome. 339 F.3d 1194, 1204 (10th Cir. 200 3). In Massie , counsel neglected to call an expert to support the battered woman syndrome defense despite a state supreme court ruling that expert te stimony was necessary to establish the defense. Id. at 1202. Unlike counsel in this case, the defense attorney in Massie did not have the option of cross-examining the state’s expert witness, and faced no risk of opening the door to p ast-acts evidence by calling a defense expert.
-14- Counsel was able to cover the same ground in cross- examination that she would have if she had called her own expert witness . As the state district court found, counsel’s cross-examination was “thoroughly prepared and carefully done.” Counsel effectively brought out through cro ss-examination Dr. Bacon’s use of leading questions, as well as an admission t hat such methods were inappropriate when interviewing a child. Dr. Bacon admitted that he considered Jones to be the prime suspect almost from the begin ning, that he did not strongly suspect R.F.’s biological father, and that he was n ot particularly listening for R.F.’s statements regarding her biological father. Counsel also elicited the fact that Dr. Bacon had failed to record statements by R .F. that were favorable to Jones or that tended to implicate someone else in t he abuse. In addition, Dr. Bacon conceded that he had allowed R.F.’s father an d others into the therapy sessions despite the fact that this practice could lead to contamination and4 Although Dr. Yuille criticized other methods of Dr. Bacon at the

postconviction hearing that were not challenged in cross-examination, these methods did not produce evidence that was inconsist ent with the defense’s theory of the case. Jones’ counsel never argued that sexu al abuse did not occur, and Dr. Bacon’s use of play therapy and his diagnosis of po sttraumatic stress disorder did not particularly implicate Jones as the perpetratorof the abuse. Dr. Bacon’s symbolic association of snakes with phallic symbols was, if anything, favorable to the defense’s theory because Dr. Bacon admitted that R.F. mentioned snakes only in reference to her biological father, and never Jo nes. -15- coaching. Counsel displayed for the jury a videotape of one session that captured possible coaching of R.F. by her father’s girlfrien d. 4 Jones’ final remaining argument is that the state d istrict court’s finding was unreasonable because it ignored contemporaneous evi dence that contradicted counsel’s after-the-fact justification of her trial strategy. Jones points to a letter written by counsel stating that the videotaped sess ions “need to be explained by an expert,” and that, “[a]bsent expert testimony co ncerning Bacon’s interviewing techniques and the responses of the child, the only expert testimony the jury will receive is that of Dr. Bacon’s.” This letter, howe ver, was written before counsel had talked to Dr. Bernhard, who concluded that Dr. Bacon’s methodology was “not too bad” and “could be addressed on cross-exam ination.” Counsel testified that she wanted to have an expert evaluate whether Dr. Bacon’s methodology “was a fertile area to pursue,” but after consultin g with Dr. Bernhard felt that the risk of calling an expert outweighed the possible a dvantages. Considering the-16-

strong presumption of competent performance, the st ate district court was not unreasonable to credit counsel’s testimony. Jones submits a separate letter written to his pare nts in which counsel stated that she was unable to retain Dr. Barbara Be bensee as an expert because “[Dr. Bebensee] did not believe that the job could be undertaken for the amount of money which had been budgeted, i.e. [$1000].” C ounsel wrote that, because “time and money often dictate how much can be done at trial,” she would “not be having any expert discussion on the video tapes” an d “will simply have to handle that through cross-examination.” Although this letter does appear to indicate that counsel’s decision not to hire a witness was undert aken based on monetary rather than tactical considerations, Jones’ counsel testif ied at the postconviction hearing that she was not completely forthcoming in her lett er because she wanted to protect Jones’ parents. If Dr. Bernhard had told h er that Dr. Bacon’s methods were grossly problematic, counsel testified that sh e would have hired an expert to go through the methodology on the stand. She testi fied that $1000 would have been adequate for this purpose, and that Dr. Bebens ee’s estimate of the cost of the project was “ludicrous.” She further testified that she could have obtained more funding for an expert witness if she had needed it. Counsel’s supervisor at the public defender’s office agreed that economics did not factor into the decision as to whether to utilize an expert at trial. Based on this testimony, the Colorado-17-

district court’s finding that the decision was base d on “trial strategy, not economics” was not unreasonable or contradicted by clear and convincing evidence. Strategic or tactical decisions are presumed correc t. Strickland, 466 U.S. at 690 (holding that strategic choices made after a th orough investigation of law and facts are “virtually unchallengeable”). Decisions based on trial strategy only rise to the level of ineffective assistance of counsel i f they are “completely unreasonable, not merely wrong, so that they bear n o relationship to a possible defense strategy.” Fox v. Ward, 200 F.3d 1286, 1296 (10th Cir. 2000) (quotation and alteration omitted); s ee also Valenzuela v. United States , 261 F.3d 694, 699- 700 (7th Cir. 2001) (holding that “a lawyer’s decis ion to call or not to call a witness is a strategic decision generally not subje ct to review” (quotation and alteration omitted)) ; United States v. Smith , 198 F.3d 377, 386 (2d Cir. 1999) (“The decision whether to call any witnesses on beh alf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every trial.” (quotation omitte d)). Counsel’s strategic decision in this case to rely on cross-examination to avoid risking the admission of the past-acts evidence was not completely unreasonable, and the state district court was therefore also not unreasonable to conclude that counsel was not constitutionally ineffective in this case.-18-

V. CONCLUSION For the foregoing reasons, the district court’s den ial of Jones’ application for writ of habeas corpus pursuant to § 2254 is AFFIRMED

. ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge