Hardaway v. McKune , 125 F. App'x 955 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 15 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
TYRON L. HARDAWAY,
Petitioner-Appellant, No. 04-3365
v. District of Kansas
DAVID R. McKUNE, Warden, (D.C. No. 03-CV-3438-MLB)
Lansing Correctional Facility;
ATTORNEY GENERAL OF
KANSAS,
Respondents-Appellees.
ORDER *
Before SEYMOUR, HARTZ , and McCONNELL , Circuit Judges.
Tyron L. Hardaway, a state prisoner proceeding pro se, seeks a certificate
of appealability (COA) that would allow him to appeal from the district court’s
order denying his habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C. §
2253(c)(1)(A). Because we conclude that Mr. Hardaway has failed to make “a
substantial showing of the denial of a constitutional right,” we DENY his request
for a COA, and we DISMISS the appeal. 28 U.S.C. § 2253(c)(2).
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
I. Background and Procedural History
In 1997 Mr. Hardaway was charged with one count of rape in violation of
Kansas law. Kan. Stat. Ann. § 21-3502(a)(1)(C). The statute upon which Mr.
Hardaway was charged defines rape as sexual intercourse with a person who does
not consent under circumstances “when the victim is incapable of giving consent
because of mental deficiency . . . which condition was known by the offender or
was reasonably apparent to the offender.” Id. Prior to trial, Mr. Hardaway moved
pursuant to the Kansas rape shield statute to allow evidence and testimony
regarding the alleged victim’s prior sexual conduct so as to establish her ability to
give consent. See Kan. Stat. Ann. § 21-3525. The trial court refused. After a
jury trial, Mr. Hardaway was convicted and sentenced to a term of 146 months in
the Kansas Department of Corrections. Mr. Hardaway’s conviction was affirmed
on appeal, and the Kansas Supreme Court denied review.
On November 17, 2003, Mr. Hardaway filed for federal habeas relief
pursuant to § 2254. Mr. Hardaway asserted that he was denied: (1) his Sixth
Amendment right to confront and cross-examine witnesses; (2) his Sixth
Amendment right to present a defense; (3) his Fourteenth Amendment right to due
process because he was convicted on the basis of insufficient evidence, and (4)
his Sixth Amendment right to effective assistance of trial and appellate counsel.
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The district court denied Mr. Hardaway’s petition and this application for a COA
followed.
II. Discussion
A COA may issue “ only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order to make
such a showing, a petitioner must demonstrate that “reasonable jurists could
debate whether . . . the petition should have been resolved in a different manner
or that the issues presented were adequate to deserve encouragement to proceed
further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (internal quotations
omitted).
On appeal Mr. Hardaway raises three issues. First, he claims that the
limitations placed upon the testimony of his expert witness concerning the
victim’s prior sexual conduct pursuant to the rape shield law denied him his Sixth
Amendment right to present a defense. Because the state court adjudicated this
claim on the merits, we decide whether the state court’s application of the Kansas
rape shield statute was “contrary to” or an “unreasonable application of” the
Supreme Court’s Sixth Amendment jurisprudence. 28 U.S.C. 2254(d)(1).
The right to present a defense is not unlimited. Chambers v. Mississippi ,
410 U.S. 284, 295 (1973). The right must bow to “other legitimate interests in the
criminal trial process.” Id. The Supreme Court has held that rape shield statutes
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similar to the one used in Kansas are not per se violations of the Sixth
Amendment. Michigan v. Lucas , 500 U.S. 145, 151-53 (1991). The Kansas
Supreme Court has found the Kansas rape shield statute constitutional,
specifically finding that because the statute allows the admission of relevant
evidence, the application of the statute does not violate an accused’s right to
present a defense. State v. Blue , 592 P.2d 897, 901 (1979).
As the district court noted, Mr. Hardaway had an opportunity to testify
regarding the events of the day leading up to the rape, to argue the victim’s ability
to consent, and to cross-examine witnesses regarding the events of the day. Mr.
Hardaway’s defense expert was allowed to testify and was only limited in his
testimony regarding the victim’s previous sexual experiences. Mr. Hardaway has
not demonstrated that the state court’s decision denied him his Sixth Amendment
rights. Accordingly, this claim fails.
Mr. Hardaway’s second claim is that the evidence presented at trial was
insufficient to support the conviction for rape. When making a claim for
insufficiency of evidence, habeas relief may be granted only if no “rational trier
of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979). Under the Antiterrorism
and Effective Death Penalty Act (“AEDPA”), we are limited to determining
whether the Kansas Court of Appeals reasonably applied the Jackson standard for
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this claim. Spears v. Mullin , 343 F.3d 1215, 1238 (10th Cir. 2003). The Kansas
Court of Appeals determined that reasonable minds could decide that the victim
was incapable of giving consent because of mental deficiency. State v.
Hardaway , No. 80,421 (Kan. Ct. App. Dec. 10, 1999). We agree with the district
court’s assessment that the Kansas Court of Appeals properly analyzed whether
the evidence was sufficient to sustain a guilty verdict. Consequently, this claim
must fail.
Mr. Hardaway’s final claim is that he is actually innocent of the charge
upon which he was convicted and sentenced. “[A]n assertion of actual innocence,
although operating as a potential pathway for reaching otherwise defaulted
constitutional claims, does not, standing alone, support the granting of a writ of
habeas corpus.” LaFevers v. Gibson , 238 F.3d 1263, 1265, n.4 (10th Cir. 2001).
Mr. Hardaway’s claim of innocence cannot be construed as anything other than
“standing alone,” and must therefore be rejected.
Accordingly, we DENY Tyron Hardaway’s request for a COA and
DISMISS this appeal.
Entered for the Court,
Patrick Fisher, Clerk
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