* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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.

** Honorable William F. Downes, District Judge, UnitedStates District Court for the District of Wyoming, sitting by designation

. 

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

### JAN 27 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

WILLIAM W. SCOTT,

Petitioner-Appellant,

v. DONALD A. DORSEY, Warden, Southern New Mexico Correctional Facility; THOMAS UDALL,

Respondents-Appellees. No. 96-2030 (D.C. No. C.V.-93-391-HB)

(D.N.M.)

ORDER AND JUDGMENT *

Before EBEL and HENRY, Circuit Judges, and DOWNES, ** District Judge.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral1 The attention of petitioner’s counsel is drawn to 1 0th Cir. R. 28.2 (d)

which requires an appellant’s brief to include copi es of “all pertinent written (continued...) -2- argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. Petitioner William Scott was charged by indictment with four sexual offenses involving his granddaughter Melissa. He w as convicted by a jury in New Mexico state court of one count of criminal sex ual contact with a minor and one count of criminal sexual penetration with g reat mental anguish alleged to have occurred on or about August 6 and 7, 1988. A mistrial because of jury disagreement was declared with regard to the same c harges alleged to have occurred on August 22, 1988. Petitioner was senten ced to eighteen years’ imprisonment, and his conviction was affirmed by th e Court of Appeals of New Mexico. See State v. Scott , 828 P.2d 958, 966 (N.M. Ct. App. 1991). The New Mexico Supreme Court quashed certiorari as improvidently granted.
See Scott v. State , 828 P.2d 957 (N.M. 1992). Petitioner then filed a petition for writ of habeas corpus in the United States District Court for the district of New Mexic o under 28 U.S.C. § 2254 alleging that he was denied his right to due proces s because of trial errors and ineffective assistance of counsel. The district co urt adopted the recommendation of the magistrate judge that petitioner’s applicati on be denied. 1 Petitioner filed1 (...continued)

findings, conclusions, opinions or orders of a . . . magistrate judge.”

2 On April 24, 1996, while petitioner's appeal was pe nding, the Antiterrorism and Effective Death Penalty Act of 19 96 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, was enacted into law. AED PA amended 28 U.S.C. § 2253 to require a "certificate of appealability" issued "only if the applicant has made a substantial showing of the denial of a const itutional right." Id. § 2253(c)(2). Because petitioner here filed his ap peal and was granted a certificate of probable cause before the amendment of § 2253, the district court's grant of a certificate of probable cause under the version of § 2253 then in effect was proper. Nickel v. Hannigan , 97 F.3d 403, 407 n.4 (10th Cir. 1996), cert. denied , 117 S. Ct. 1112 (1997); see also United States v. Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997). Also during the p endency of this appeal, the Prison Litigation Reform Act of 1995 (PLRA), Pub. L . No. 104-134, 110 Stat. 1321 (1996), amending the in forma pauperis statute , 28 U.S.C. § 1915, was enacted on April 26, 1996. Because the filing fee requirements of PLRA do not apply to habeas actions, see United States v. Simmonds , 111 F.3d 737, 743 (10th Cir. 1997), the district court’s grant of permissio n to proceed in forma pauperis will be left undisturbed on appeal.

-3- his notice of appeal on February 5, 1996, and the d istrict court granted a certificate of probable cause to appeal on Februa ry 12, 1996. 2 On appeal, petitioner argues that he was denied his due process right to a fair trial when the district court allowed the complaining witness, his granddaughter Melissa, to testify to her history of sexual abuse by her grandfather, the petitioner. Specifically, petitio ner argues that the evidence was offered for no proper purpose and that its prej udicial effect outweighed3 S.C.R.A. 1986, 11-404(b) of the Rules of Evidence s tates: Evidence of other crimes, wrongs, or acts is not ad missible to prove the character of a person in order to show ac tion in conformity therewith. It may, however, be admissible for othe r purposes, such as proof of motive, opportunity, intent, preparatio n, plan, knowledge, identity, or absence of mistake or accident . . . .

4 S.C.R.A. 1986, 11-403 of the Rules of Evidence prov ides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, orby considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

5 Title I of the Antiterrorism and Effective Death Pe nalty Act of 1996, cited supraat n.1, significantly curtails the scope of collat eral review of convictions and sentences. However, “[i]n Lindh v. Murphy , 117 S. Ct. 2059 (1997), the Supreme Court held Congress did not intend the new, more discretionary standards as reflected in the amended 28 U.S.C. § 2 254(d) to apply to petitions (continued...) -4- its probative value, all in violation of Fed. R. E vid. 404(b), 3 and 403 and the parallel state rules of evidence. 4 Petitioner further argues that the trial court er red in refusing to allow him to call witnesses to estab lish his contention that Melissa had brought prior unsubstantiated rape charges agai nst a number of people in the past. Finally, petitioner argues that he was denie d effective assistance of counsel and was the victim of cumulative error. The merits of all of the issues raised in petitione r’s habeas proceeding have previously been ruled on by the Court of Appeals of New Mexico. See Scott , 828 P.2d 958. 5 With respect to petitioner’s evidentiary rulings, we note that(...continued)

filed prior to the amendment’s effective date, id. at 866; consequently, we apply the pre-amended version of 28 U.S.C. § 2254 to [pet itioner’s case].” Richmond v. Embry , 122 F.3d 866, 870 (10th Cir. 1997). -5- [i]n order for a federal court to grant habeas reli ef based on state court evidentiary rulings, the rulings must render the tr ial so fundamentally unfair as to constitute a denial of federal constit utional rights. Thus, we will not disturb a state court’s admission of evide nce of prior crimes, wrongs or acts unless the probative value of such e vidence is so greatly outweighed by the prejudice flowing from its admiss ion that the admission denies defendant due process of law. Hopkinson v. Shillinger , 866 F.2d 1185, 1197 (10th Cir. 1989)(quotation an d citation omitted). A trial court’s rulings on the admission or exclusion of evidence are reviewed for abuse of discretion. Cartier v. Jackson , 59 F.3d 1046, 1048 (10th Cir. 1995). As noted above, petitioner argues that the trial co urt erred by admitting testimony from Melissa regarding past incidents of sexual abuse by petitioner. Melissa testified that when she was seven, petition er began touching her breasts and vagina. She further testified that petitioner began raping her when she was eleven and had returned with her family after livin g for three years in Germany. She testified that petitioner told her not to tell anyone or he would hurt her and that she believed this threat. Melissa testified t hat the rapes and other sexual abuse continued until she finally confided to the n urse practitioner at the clinic in Questa, New Mexico, that her grandfather had bee n abusing her. Melissa did-6-

this, she testified, only because the nurse practit ioner had surmised that Melissa was pregnant. Prior to the presentation of this testimony, the st ate moved in a pretrial conference to admit this evidence, arguing that it was corroborative and admissible under state evidentiary law. The judge granted the motion reasoning that, because the theory of petitioner’s defense wa s that he did not commit the crimes (not merely that the state would be unable t o prove their commission), Melissa’s credibility would be the central issue inthe case and that evidence of the relationship Melissa had acquired over time with her grandfather would be relevant to her credibility. The judge noted th at the evidence would not be offered to establish petitioner’s character, as pro hibited by Fed. R. Evid. 404(b) and its state equivalent, S.C.R.A. 11-404(B) of the Rules of Evidence, but was admissible to establish the length and extent of th e relationship between Melissa and petitioner and as evidence of motive. The judg e also ruled that the evidence would be relevant on the issue of petitioner’s infl iction of great mental anguish. The Court of Appeals of New Mexico ruled that this testimony was properly admitted under state evidentiary law, citi ng State v. Minns , 454 P.2d 355 (N.M. Ct. App. 1969). On review of the denial of p etitioner’s habeas petition, however, we must decide whether the admission of Me lissa’s testimony regarding-7-

prior sexual contact with defendant rendered his tr ial so fundamentally unfair as to deprive him of his federal constitutional rig ht to due process. The state evidentiary rules at issue in this case a re in all relevant respects identical to their counterparts in the Federal Rule s of Evidence. While we realize that the state rules governed this trial and that o ur only review is under the fundamental fairness test, we nevertheless refer to the federal rules and the case law interpreting them for guidance on the issue of fundamental fairness. With that understanding, we now turn to our analysis. In United States v. Record , 873 F.2d 1363, 1374 (10th Cir. 1989), this court reevaluated the application of Rule 404(b) in lightof the Supreme Court’s then recent case of Huddleston v. United States , 485 U.S. 681 (1988). We began by noting this circuit’s historically inclusive approa ch to Rule 404(b): “‘[the rule] would allow admission of uncharged illegal acts unl ess the only purpose for their admission is to provide the criminal disposition of the defendant,’” Record , 873 F.2d at 1373 (quoting United States v. Nolan , 551 F.2d 266, 271 (10th Cir. 1977)), and observing that this inclusive approach had been vindicated by the Supreme Court in Huddleston , see Record , 873 F.2d at 1374. With regard to the role of Rule 404(b) in preventing unfair prejudice, the Court in Huddlestonstated: the protection against such unfair prejudice emanat es not from a requirement of a preliminary finding by the trial court, but rather from four other sources: first, from the requirem ent of Rule 404(b) that the evidence be offered for a proper purpose; second, from the-8-

relevancy requirement of Rule 402--as enforced thr ough Rule 104(b); third, from the assessment the trial court must make under Rule 403 to determine whether the probative value o f the similar acts evidence is substantially outweighed by its po tential for unfair prejudice; and fourth, from Federal Rule of Eviden ce 105, which provides that the trial court shall, upon request, instruct the jury that the similar acts evidence is to be considered only for the proper purpose for which it was admitted. Huddleston , 485 U.S. at 691 (citation omitted). We turn to the analysis of petitioner’s 404(b) argu ment, utilizing principles gleaned from Huddleston . Evidence is offered for a proper purpose under Rule 404(b) if it “bears upon a relevant issue” and is “probative of a material issue other than character.” Huddleston , 485 U.S. at 685-86. To be admissible under 404(b), evidence must also be relevant. See id. at 691. The trial court’s decision to admit Melissa’s testimony regarding pet itioner’s prior sexual contact with her satisfies the first two Huddlestonrequirements. The theory of defense in this case was petitioner’s claim of actual innocence. Because of this strategy, and because, as in most sex crimes cases, there were no other witnesses to the charged conduc t, the central issue in the case was Melissa’s credibility. Two other witnesse s testified in this case both of whom offered evidence which, when tied to Meliss a’s testimony about a long history of sexual abuse by petitioner, helped to es tablish Melissa’s credibility. First was the testimony of Dr. Barbara Dinsmore, a clinical psychologist who was treating Melissa, and who testified that, with her depression, hyperalertness, and-9-

other pertinent psychological characteristics, Meli ssa fit the profile of a child who had been the victim of long-term sexual abuse. Next was Dr. Charles Anderson, a pediatrician who had examined and treated Melissashortly after her revelation to the nurse practitioner, and who testified that M elissa suffered from high blood pressure, a peptic ulcer, headaches, fatigue, and w as having trouble in school--all inter-related symptoms which, he testified, may als o be related to stress. Additionally, Dr. Anderson found that Melissa’s vag inal walls and vaginal opening were consistent with someone who had had re peated intercourse. Melissa’s testimony of long term abuse is consistent with and was bolstered by the psychological and medical evidence in this c ase. The 404(b) testimony she was allowed to give, therefore, was relevant to hercredibility and to the state’s ability to rebut any defense that Melissa was lying about the charged incidents. The defense also attempted, both on cross-examinati on of Melissa and in its closing argument to the jury, to raise doubts aboutwhy Melissa had waited so long to tell anyone about the rapes. With this str ategy a part of petitioner’s case, evidence that petitioner threatened Melissa if she revealed the abuse and that Melissa believed the threats was relevant to explai n the delay in reporting and to diffuse any inference of recent fabrication. Se e United States v. Powers , 59 F.3d 1460, 1464 (4th Cir. 1995)(holding evidence of defendant’s prior violence against his family admissible to explain d elay in reporting sexual abuse),-10-

cert. denied , 116 S. Ct. 784 (1996). Thus, because the evidenc e of petitioner’s prior wrongs was not offered to establish his bad c haracter, but rather was offered to explain the context of the crimes and to rebut acharge of recent fabrication by Melissa, the evidence was both properly offered andrelevant, thus satisfying the first two Huddlestonrequirements. The third Huddlestonfactor, whether the prejudicial impact of the evid ence outweighs its probative value, is satisfied by impl ication in this case. Here, the jury heard all of Melissa’s testimony regarding herprevious experiences with petitioner. They then considered whether he had co mmitted the specific crimes charged against him on or about the weekend of Augu st 6 and 7, 1988, and again on August 22, 1988. As mentioned above, the jury c onvicted petitioner of the charges alleged to have occurred on or about August6 and 7, but could not agree about the charges on August 22. It is clear, there fore, that Melissa’s testimony did not infect the proceedings with such prejudice that defendant was denied a fair trial. Melissa’s testimony was relevant to the whole course of her relationship with petitioner; it was not solely aim ed at the occurrences of August 6 and 7. This jury was amply able to resistany temptation to convict petitioner because 404(b) “other wrongs” evidence h ad convinced them he was a bad person generally and, therefore, probably com mitted the crimes with which he was charged. If that had been their analysis, t hey would have convicted-11-

petitioner on all four counts. Prejudice from Meli ssa’s testimony did not sway this jury, because the bad acts evidence applied eq ually to both sets of charges. The final Huddlestonfactor requires the trial court to give a limiting instruction on the proper purpose of 404(b) evidenc e, if requested. Defense counsel did not request any limiting instruction in this case and none was given. We have held that the failure to give a limiting in struction on 404(b) evidence as part of the charge to the jury is not error. Se e Record , 873 F.2d at 1376. In Record , however, a limiting instruction had been given atthe time the evidence was offered. See id. at 1373. We do not find that distinction a bar, h owever, to our determination that the fourth Huddlestonfactor was complied with in this case. The requirement for a limiting instruction in Huddl estonis based on Fed. R. Evid. 105 which provides that a trial courtmust give a limiting instruction in certain circumstances “upon request.” Because d efense counsel did not request the instruction, the trial court did not err in fai ling to give it. Further, as discussed above, it is clear from the actions of th is jury that they were not swayed to convict petitioner because of some improper use of Melissa’s testimony.6 Effective July 9, 1995, Fed. R. Evid. 414(a) provid es that: In a criminal case in which the defendant is accuse d of an offense of child molestation, evidence of the defendant’s commission of another offense or offens es of child molestation is admissible, and may be considered for its bearing on any matter to which i t is relevant. While the federal rule does not apply to this case, we cite it as persuasive on the question of the type of evidence federal courts bel ieve to be within the permissible realm of fundamental fairness in child molestation cases.

-12- At the least, we are not convinced that any failure to give a limiting instruction in this case resulted in a fundamentally unfair tri al. 6 Petitioner next argues that he was deprived of his Sixth Amendment right to confrontation when the district court refused to allow him to call witnesses regarding alleged prior false rape allegations made by Melissa, and when it further curtailed petitioner’s questioning of Melis sa on cross-examination of this matter. This is an issue we review de novo. See Tapia v. Tansy , 926 F.2d 1554, 1557 (10th Cir. 1991). The judge in this case allowed the entire record fr om the Department of Human Services to be made available to both parties before trial. In that record were reports of prior allegations of sexual miscond uct leveled by Melissa against various other people. The state moved at a pretria l conference to prevent the defense from inquiring into these allegations. The district court refused this-13-

motion, but also refused, in the face of strenuous objection from defense counsel, to allow petitioner to bring outside witnesses into court to question them about the truth or falsity of the past allegations. Inst ead, the court ruled that defense counsel could ask Melissa about the prior reports and attempt to impeach her credibility through them. Defense counsel prepared a list of questions which were reviewed by the attorneys for each side and by the judge. Those questions formed the framework for defense counsel’s questioning of Melissa on this issue. Defense counsel was required to confer specificallywith the judge during trial at a bench conference if he wished to ask questions other than those from the preapproved list. Inquiry in a rape trial into prior rape charges mad e by the same accuser is allowable under New Mexico law if it is relevantand material, and if the prejudicial impact of the evidence does not outweig h its probative value. State v. Johnson , 692 P.2d 35, 42 (N.M. Ct. App. 1984)(overruled inpart on other grounds byManlove v. Sullivan , 775 P.2d 237 (N.M. 1989)); see Scott , 828 P.2d at 963 (stating that, in Manlove , New Mexico supreme court overruled Johnson in part). The prior complaints, however, must be “ demonstrably false.” Id. at 43. Petitioner argued to the district court the only way he could establish that the prior charges were “demonstrably false” was to call the accused persons as witnesses in the instant trial. The law does not pe rmit this approach.-14-

The trial court has broad discretion regarding the admissibility of evidence.
See Cartier , 59 F.3d at 1048. Specific instances of the conduct of a witness, forthe purpose of attacking or supporting the witness’ credibility, o ther than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inq uired into on cross-examination of the witness . . . concerning t he witness’ character for truthfulness or untruthfulness[. . .]

. United States v. Olivo , 80 F.3d 1466, 1470 (10th Cir.)(quoting Fed. R. Ev id. 608(b)), cert. denied , 117 S. Ct. 265 (1996). The conduct of the trial court regarding this matter complied in all respects with Rule 608(b). The judge specifically noted that both counsel would be allow ed to question Melissa about her prior allegations, based on the records from th e Department of Human Services, but that both sides “would be stuck with her answers.” He declined to allow additional witnesses to be called regardin g the details of any prior allegations. This procedure was completely appropr iate under the circumstances.
See United States v. Martinez , 76 F.3d 1145, 1150 (10th Cir. 1996). Despite the bar on extrinsic evidence and the limit s placed on cross-examination, the record of the trial proceedi ngs reveals that defense counsel had ample opportunity to question Melissa regarding her past charges. See Olivo , 80 F.3d at 1470 (approving the court’s restriction on impeachment and noting court’s broad discretion to admit or exclude eviden ce). While Melissa denied-15-

making one of the alleged accusations and was equiv ocal regarding another, she admitted that she had charged her grandmother a nd the grandmother’s boyfriend with rape. Defense counsel reminded the jury of this testimony in his closing argument. Thus, the issue of Melissa’s prior rape charges got an adequate airing in the presence of the jury. The t rial court did not err in its handling of this evidence. Finally, petitioner argues that he was deprived of effective assistance of counsel. Specifically, he asserts that counsel should have presented additional alibi witnesses, instead of relying solely on petit ioner’s wife of forty-seven years. We review this mixed question of law and fact de no vo and “accept the factual findings of the district court unless they are clea rly erroneous.” Brewer v. Reynolds , 51 F.3d 1519, 1523 (10th Cir. 1995), cert. denied , 116 S. Ct. 936 (1996). Claims of ineffective assistance of counsel are eva luated according to the two-prong test of Strickland v. Washington , 466 U.S. 688 (1984). Under that standard [f]irst, the defendant must show that counsel’s per formance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ g uaranteed the defendant by the Sixth Amendment. Second, the defe ndant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so seri ous as to deprive the defendant of a fair trial, a trial whose resultis reliable.7 Petitioner does not disclose the identity of these witnesses nor describe the

evidence they could have provided. -16- Id. at 687. Petitioner maintains that he told his defense couns el about other potential witnesses who could have substantiated his claim of innocence, but that counsel chose, instead, to rely solely on Mrs. Scott. 7The magistrate judge found this to be a strategic decision on the part of defense c ounsel. See R. Vol. I, tab 36. Petitioner has not advanced any evidence to convinc e us that this factual conclusion is clearly erroneous. As such, we will not disturb the conclusion of the district court because quarrels with strateg ic decisions of trial counsel will not support a finding of ineffectiveness. See Strickland , 466 U.S. at 690; Minner v. Kerby , 30 F.3d 1311, 1317 (10th Cir. 1994). Alternatively, petitioner also fails to establish t he prejudice necessary for his claim. After reviewing the twenty-three audio tapes that comprise the bulk of the record in this case, we cannot conclude thatpetitioner was prejudiced by the work of his defense counsel. There is no “prob ability that, but for counsel’s purported unprofessional errors, the result of the proceeding would have been different.” See Strickland , 466 U.S. at 694. And finally, because we have found no error in peti tioner’s charges, there can be no cumulative error.-17-

The judgment of the United States District Court fo r the District of New Mexico is AFFIRMED.

Entered for the Court

William F. Downes District Judge