UNITEDSTATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

CARL OLONA,

Petitioner-Appellant,

v.

JOE WILLIAMS, Warden, CentralNew Mexico Correctional Facility;ATTORNEY GENERAL FOR THESTATE OF NEW MEXICO,

Respondents-Appellees.No. 00-2167

(D.C. No. CIV-97-573-MV/KBM)

(D. N.M.)

ORDER AND JUDGMENT(*)

Before BRORBY, PORFILIO, andBALDOCK, Circuit Judges.

After examining the briefs and appellate record, this panel has determinedunanimously that oral argument would not materially assist the determination ofthis appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case istherefore ordered submitted without oral argument.

Petitioner Carl Olona appeals the decision of the district court denying hispetition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. Becausewe cannot conclude that "reasonable jurists would find the district court'sassessment of the constitutional claims [here] debatable or wrong," Slack v.McDaniel, 529 U.S. 473, 484 (2000), we deny petitioner's application fora certificate of appealability and dismiss this appeal.

Following a 1987 trial to a New Mexico state court, petitioner wasconvicted of three counts of second degree criminal sexual penetration, one countof attempt to commit the same, kidnaping and aggravated burglary. His sentencewas enhanced due to his habitual offender status, and petitioner was sentenced tothirty-seven years' incarceration and two years' parole. His conviction wasaffirmed by the New Mexico Court of Appeals and became final in 1988 when theNew Mexico Supreme Court denied certiorari.

Petitioner filed his federal habeas petition on the last day of the AEDPAgrace period, April 23, 1997. By then, the records of the state trial had largelydisappeared. The federal district court held a hearing regarding the state of therecord at which petitioner's trial attorney, an assistant district attorney who hadworked on the case, petitioner's appellate attorney and petitioner all testified. At the end of the hearing, the court directed the parties to agree to a briefingschedule. The matter was then referred to a magistrate judge.

In his habeas petition, petitioner argues that insufficient evidence supportedhis convictions and that he was denied his Sixth Amendment right toconfrontation when the trial judge prevented him from inquiring into a 1986 rapeaccusation against a Texas man lodged by the complainant in this case. Afterreviewing the elements of the various crimes for which petitioner had beenconvicted and the opinion of the New Mexico Court of Appeals affirming theconvictions, the magistrate judge addressed the merits of petitioner's claims andconcluded that habeas relief should be denied. The district court adopted themagistrate judge's proposed findings and recommendation and denied a certificateof appealability (COA).

The statute governing the issuance of a COA "establishes procedural rulesand requires a threshold inquiry into whether the circuit court may entertain anappeal." Slack, 529 U.S. at 482. No COA will be forthcoming unless "'theapplicant has made a substantial showing of the denial of a constitutional right.'" Id. at 481 (quoting 28 U.S.C. § 2253(c)). Where, as here, the district courtrejected petitioner's constitutional claims on the merits, Mr. Olona must now"demonstrate that reasonable jurists would find the district court's assessment ofthe constitutional claims debatable or wrong." Id. at 484.

At the outset of his brief on appeal, petitioner argues that AEDPA does notapply to his appeal and advances three challenges to the constitutionality ofAEDPA as applied to him. Because law from the Supreme Court and this courteffectively disposes of petitioner's constitutional arguments, we need not pauselong in addressing those issues. Contrary to petitioner's contention, AEDPA doesapply to his case because Mr. Olona's federal habeas petition was filed afterAEDPA's effective date. See Slack, 529 U.S. at 481 (citing Lindh v.Murphy,521 U.S. 320, 327 (1997)). "We have repeatedly held that the AEDPA applies tocases filed after its effective date, regardless of when state court proceedingsoccurred." Trice v. Ward, 196 F.3d 1151, 1158 (1999) (quotation omitted),cert. denied, 121 S. Ct. 93 (2000). We have similarly rejected achallenge toAEDPA on the basis of retroactivity. See id. (citing cases from other circuitswhich have reached a similar result).

Petitioner's argument, based on a hypothetical scenario, that AEDPAsomehow violates Article III has been foreclosed by the Supreme Court's opinionin Williams v. Taylor, 529 U.S. 362, 378-79 (2000). There the court roundlyrejected an interpretation of AEDPA that would "alter the underlying grant ofjurisdiction in § 2254(a)." Id. at 378. "A construction of AEDPA that wouldrequire the federal courts to cede this authority to the courts of the States wouldbe inconsistent with the practice that federal judges have traditionally followed indischarging their duties under Article III of the Constitution." Id. at 379.

Petitioner finally argues that denial of his petition under AEDPA wouldresult in a suspension of the writ. He does not specify how this result wouldoccur, other than to hypothesize that "[i]f AEDPA requires that a federal habeascourt allow a state court decision to stand, even though it is contrary to the UnitedStates Constitution, AEDPA would also violate the suspension of the writ clause." Opening Br. at 29. Of course, AEDPA does not require any such outcome. Itrequires only that "determinations of state courts be tested only against 'clearlyestablished Federal law, as determined by the Supreme Court of the UnitedStates,' and second, the prohibition on the issuance of the writ unless the statecourt's decision is 'contrary to, or involved an unreasonable application of,' thatclearly established law." Williams, 529 U.S. at 379 (quoting § 2254(d)). See alsoFelker v. Turpin, 518 U.S. 651, 664 (1996) (holding that AEDPA's restrictions onsuccessive petitions do not amount to a suspension of the writ); Miller v. Marr,141 F.3d 976, 978 (10th Cir. 1998) (holding that, under circumstances of the case,AEDPA's statute of limitations did not result in a suspension of the writ).

Turning now to the merits of this appeal, petitioner argues that the trialjudge denied him his Sixth Amendment right to cross-examine the victim abouther prior rape allegation which resulted in an acquittal and that insufficientevidence supports his convictions. The New Mexico Court of Appeals rejectedboth of these claims on the merits.(1)

Under AEDPA, petitioner will not be entitled to habeas relief unless thestate court's adjudication of the merits of his claims "resulted in a decision thatwas contrary to, or involved an unreasonable application of, clearly established"Supreme Court precedent or "resulted in a decision that was based on anunreasonable determination of the facts in light of the evidence presented in theState court proceeding." 28 U.S.C. § 2254(d).

Under the "contrary to" clause, a federal habeas courtmay grant the writ if the state court arrives at aconclusion opposite to that reached by [the Supreme]Court on a question of law or if the state court decidesa case differently than [the Supreme] Court has on a setof materially indistinguishable facts. Under the"unreasonable application" clause, a federal habeas courtmay grant the writ if the state court identifies the correctgoverning legal principle from [the Supreme] Court'sdecisions but unreasonably applies that principle to thefacts of the prisoner's case.

Williams, 529 U.S. at 412-13.

The facts supporting petitioner's Confrontation Clause claim stem from anearlier rape complaint brought by the victim in this case against a man in El Paso,Texas. In that case, the victim apparently was interviewed by Texas authorities,took part in grand jury proceedings, and participated in the trial at which thedefendant was acquitted. During the course of Mr. Olona's trial, defense counselasked the victim why she had earlier denied penetration when she had beeninterviewed. The victim stated that, at the time of those interviews, she did notknow the meaning of the word "penetration." Defense counsel renewed hisrequest to be allowed to inquire into the Texas rape case in an effort to establishthe unlikelihood that someone who was a complainant in an earlier rapeprosecution could not know the meaning of "penetration." Defense counselwanted to make the victim's credibility an issue, R. Vol. II at 21, and to testwhether the victim's testimony would "unravel" as to all of the charges, id.at 22-23. The request to pursue this line of questioning was denied.

"The right to present relevant testimony is not without limitation. The rightmay, in appropriate cases, bow to accommodate other legitimate interests in thecriminal trial process." Michigan v. Lucas, 500 U.S. 145, 149 (1991) (quotationsomitted). "Trial judges retain wide latitude insofar as the Confrontation Clause isconcerned to impose reasonable limits on cross-examination." United States v.Ramone, 218 F.3d 1229, 1237 (10th Cir.) (quotations omitted), cert. denied,121 S. Ct. 598 (2000).

Petitioner argues that he needed to be able to question the victim about herprior rape charge in order to undermine her credibility. Based on the facts of thiscase as best we can ascertain them, however, there were several different avenuesthrough which the victim's credibility could have been attacked. With respect tothe victim's understanding of the word "penetration," we note that in thestatement she gave to the police a few hours after the event, the victim herselfused the word to describe what petitioner had done to her: "He penetrated myvagina with his finger and his tongue." R. Vol. V Olona/Tammi Nidever folder,Statement at 2. Presumably this police report was available to defense counseland would have been just as effective to impeach the victim regarding herunderstanding of the word as would inquiry into her prior rape allegation.

Further, the victim reported that petitioner knocked her to the floor, cut herwith a knife or scissors, sexually assaulted her and was only prevented from fullpenile penetration when she hit him on the head with an electric fan. All of thesestatements were apparently open to challenge: the victim had no physical marksother than some very slight scratches on her forehead which the defense attorneysuspected were self-inflicted with a kitchen fork; the victim's apartment showedno signs of a struggle; petitioner's fingerprints were not found on either a knife orscissors; the physical evidence of a sexual assault was equivocal, and no markswere found on petitioner's body indicating that he had been struck by the victim. All of these factual inconsistencies were open to the defense and could haveundermined the victim's credibility. There is no evidence that the defense did notpursue these lines of questions in his cross-examination.

We agree with petitioner that an essential part of the right of confrontationis the opportunity to cross-examine. See Delaware v. Van Arsdall, 475 U.S. 673,678 (1986). And, indeed, that right can be abridged "if the trial court precludesan entire relevant area of cross-examination." Richmond v. Embry, 122 F.3d 866,871 (10th Cir. 1997) (quotations omitted); cf. Ramone, 218 F.3d at 1236(rejecting confrontation clause claim where defendant "was able to introduceevidence with respect to his defense of consent and was not entirely precludedfrom offering his theory of the case"). Because petitioner was not precluded fromall efforts to attack the victim's credibility, his right to confrontation was notabridged.(2)

Petitioner's second claim is that insufficient evidence supported hisconvictions.

The standard of review of a claim relating to the sufficiency of theevidence is whether, 'after considering all the trial evidence in thelight most favorable to the prosecution . . . any rational trier-of-factcould not have found each separate element of the crime charged wasproved beyond a reasonable doubt.'

Mayes v. Gibson, 210 F.3d 1284, 1293 (10th Cir.), cert. denied, 121S. Ct. 586(2000)) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

There is some debate in this circuit whether under the AEDPAa claim challenging the sufficiency of the evidence should be treatedas a question of law or as a question of fact. See Moore v. Gibson,195 F.3d 1152, 1176-77 (10th Cir. 1999) (summarizing split in thecase law) [cert. denied, 120 S. Ct. 2206 (2000)]. If we treat the claimas a question of law, then under § 2254(d)(1) we should onlyoverturn the state court's determination if its decision was contraryto established Supreme Court precedent. If we treat the claim as aquestion of fact, then under § 2254(d)(2) it should be overturned onlyif it represents an unreasonable determination of the facts in light ofthe evidence.

Id.

In this case, as in Mayes, it makes no difference to the outcome whether wetreat the sufficiency question as one of law or of fact. After reviewing thedocketing statement presented to the New Mexico Court of Appeals andpetitioner's brief filed therewith, we agree with the district court that the statecourt's decision is neither contrary to the "rational-trier-of-fact" test of Jackson v.Virginia, nor was it an unreasonable determination of the facts.

Petitioner's application for a certificate of appealability is denied. Thisappeal is DISMISSED.

Entered for the Court

John C. Porfilio

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. This order and judgment is not bindingprecedent, except under thedoctrines of law of the case, res judicata, and collateral estoppel. The courtgenerally disfavors the citation of orders and judgments; nevertheless, an orderand judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

1. Petitioner argues that the NewMexico Court of Appeals did not address hisConfrontation Clause argument on the merits. We disagree. While that court didnot use the phrase "Confrontation Clause" or refer directly to the SixthAmendment, the opinion relies on State v. Johnson, 692 P.2d 35 (N.M. Ct. App.1984) (overruled in part by Manlove v. Sullivan, 775 P.2d 237 (N.M. 1989)), theleading New Mexico case at the time regarding the operation of the state's rapeshield law. Johnson, in turn, is specifically concerned with the constitutionalright to cross-examine ("The danger posed by [the rape shield law] is that itsapplication will prevent the defendant from adequately cross-examining thecomplainant to attack her credibility, thus violating the defendant's right toconfront the witnesses against him guaranteed by the sixth and fourteenthamendments."). Johnson, 692 P.2d at 42.

2. Because we find no violation of theConfrontation Clause here, it isunnecessary for us to engage in the harmless error analysis discussed inpetitioner's brief.