Frost v. McKune, et al

Filing

[10170267] Affirmed and COA Denied. Terminated on the merits after oral hearing. Written, signed, and published. Judges Lucero(Dissenting), McKay, and Matheson(Authoring judge). Mandate to issue. [13-3086]

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

PUBLISH

Page: 1
FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS

April 25, 2014

TENTH CIRCUIT

Elisabeth A. Shumaker
Clerk of Court

KENNETH E. FROST,
Petitioner - Appellant,
v.

No. 13-3086

REX PRYOR, Warden, Lansing
Correctional Facility; DEREK
SCHMIDT, Kansas Attorney General,
Respondents - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 5:11-CV-03170-SAC)

Jean K. Gilles Phillips, The Paul E. Wilson Project for Innocence and Post Conviction
Remedies, University of Kansas School of Law, Lawrence, Kansas, appearing for
Appellant.
Natalie Chalmers, Assistant Solicitor General, Office of the Kansas Attorney General,
Topeka, Kansas, appearing for Appellees.

Before LUCERO, McKAY, and MATHESON, Circuit Judges.



Rex Pryor, Warden of the Lansing Correctional Facility, is substituted for his
predecessor David McKune, and Derek Schmidt, Kansas Attorney General, is substituted
for his predecessor, Steve Six, pursuant to Fed. R. App. P. 43(c)(2).

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 2

MATHESON, Circuit Judge.

In 2005, a Kansas state court jury convicted Kenneth Frost of aggravated indecent
liberties with a child in violation of Kan. Stat. Ann. § 21-3504 (2004). His attorney failed
to obtain the child’s medical records, which could have been used to impeach the child’s
mother and challenge the prosecution’s corroborative evidence. Mr. Frost moved for a
new trial based on ineffective assistance of counsel. After conducting hearings, the state
trial court denied the motion and sentenced Mr. Frost to 204 months in prison. The
Kansas Court of Appeals (“KCOA”) affirmed. Although it determined that Mr. Frost’s
trial counsel provided deficient performance by failing to request the child’s medical
records, the KCOA concluded counsel’s performance did not prejudice Mr. Frost. The
Kansas Supreme Court denied discretionary review.
Mr. Frost then sought a writ of habeas corpus in federal court under 28 U.S.C.
§ 2254, arguing (1) his attorney’s failure to investigate the child’s medical records
violated his Sixth Amendment right to effective assistance of counsel and (2) several
other claims involving ineffective assistance and prosecutorial misconduct. The federal
district court denied relief on the first ineffective assistance claim relating to the child’s
medical records because of the deference owed to state court decisions on the merits
under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). The court
dismissed Mr. Frost’s remaining claims as procedurally barred. It nonetheless issued Mr.
Frost a Certificate of Appealability (“COA”) on “the [sole] issue [of] whether [Mr.
-2-

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 3

Frost’s] trial counsel was unconstitutionally ineffective in failing to investigate the
child’s medical records.” Frost v. McKune, No. 11-3170-SAC, 2013 WL 812153, at *11
(D. Kan. Mar. 5, 2013).
Mr. Frost now appeals, arguing (1) the district court incorrectly denied relief on
the merits of his ineffective assistance claim and (2) we should also grant relief on his
procedurally barred claims. As to his first issue, we are statutorily bound by AEDPA to
ask only if the state court’s decision was contrary to, or an unreasonable application of,
clearly established Supreme Court law. And the Supreme Court has instructed that
unreasonable application occurs only when fairminded jurists could not possibly disagree
over the correctness of the state court’s decision. Because this standard so severely
constrains our review, we affirm the district court’s denial of habeas relief on the first
issue. As to his second issue, we deny a COA on all remaining claims.

I. BACKGROUND
A. Factual History
In reviewing a § 2254 petition, “[w]e presume that the factual findings of the state
court are correct” unless the petitioner presents clear and convincing evidence to the
contrary. Fairchild v. Workman, 579 F.3d 1134, 1139 (10th Cir. 2009); see also 28
U.S.C. § 2254(e)(1). Aside from certain facts that Mr. Frost asserts he was unable to
develop due to the ineffective assistance provided by his trial counsel, Mr. Frost does not
challenge the state court’s determination of the facts in this case. The KCOA described
the factual history as follows:
-3-

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 4

Near the end of 2000 or the beginning of 2001, A.G. (Mother) started
dating Frost. Several months later, Mother, her 8-year-old son [] (the
child), and the child’s twin sibling moved into Frost’s home.
After moving into the home, the child began soiling himself in his
underwear. According to the child, Frost was sexually abusing him and he
was “okay” with soiling himself because he wanted Frost to think he was
“kind of gross” and to “stay away.” Unaware of the alleged sexual abuse,
Mother took the child to several doctors in an attempt to uncover the reason
the child was defecating in his clothing.
For reasons unrelated to the issues presented in this case, Mother and the
children stopped living with Frost in March or April of 2002. Frost,
however, continued to speak with the child and his sibling over the
telephone for another 5 or 6 months. According to Mother, Frost’s absence
coincided with the gradual decrease and eventual cessation of the child's
soiling behavior. The child’s condition also improved after Dr. David
Nichols, the child’s primary care physician, prescribed the child medication
in December 2002.
On May 7, 2004, Mother took the child to Cindy Coggins, a licensed
professional counselor, in order to have him evaluated for possible
Attention Deficit Hyperactivity Disorder (ADHD). During this visit,
Mother relayed to Coggins her suspicion that the child had been sexually
abused. Mother stated the child was withdrawn and had experienced daily
bowel problems on and off for the last 3 years, although they had stopped
in the 3 weeks prior to the visit. Coggins asked the child during this visit if
anyone had hurt him; the child turned to look at his mother but said
nothing. Coggins ended the session, advising Mother that if anything had
happened to the child, he would disclose it when he was ready.
In the fall of 2004, Frost reportedly attempted to telephone Mother and
reinitiate contact with her. When Mother discussed Frost’s alleged phone
call with her then fiance, the child reportedly overheard the conversation
and his soiling behavior resumed. Around that time, the child wrote
Mother a letter stating that someone had touched him, specifically
mentioning Frost’s name.
Mother called Coggins to tell her about the letter and the reoccurrence of
the bowel condition. On November 30, 2004, Coggins met with Mother
and the child. Mother gave Coggins the letter and, after recording notes
-4-

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 5

about it, Coggins discarded the letter and conducted her second counseling
session with the child. During this session, the child reported that Frost had
sexually abused him on two separate occasions in two different rooms,
describing each incident in detail. As a mandatory reporter, Coggins
reported the suspected abuse to authorities.
The State’s investigation resulted in a referral to Sunflower House, a child
advocacy center. Sarah Byall, a social worker at Sunflower House,
conducted a videotaped interview of the child. During the interview, the
child made disclosures consistent with his statements to Coggins.
State v. Frost, No. 98,433, 212 P.3d 263, 2009 WL 2371007, at *1 (Kan. Ct. App. July
31, 2009) (unpublished table decision).
B. Procedural History
1. State Proceedings
a. Charging, preliminary hearing, and first trial
On February 23, 2005, Mr. Frost was charged with one count of aggravated
indecent liberties with a child in violation of Kan. Stat. Ann. § 21-3504 (2001).1 The
court appointed the public defender’s office to provide Mr. Frost with representation. It
assigned Philip Crawford to Mr. Frost’s case. The Kansas Court of Appeals described
the preliminary hearing as follows:
At the preliminary hearing, the child testified about two separate instances
of abuse occurring in two separate rooms within the house. Slightly
different from his prior statement to Coggins, however, the child further

1

The version of the statute in effect at the time of Mr. Frost’s alleged abuse
proscribed “[a]ny lewd fondling or touching of the person of either the child or the
offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of
either the child or the offender, or other.” Kan. Stat. Ann. § 21-3504(a)(3)(A) (2001).
-5-

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 6

testified that Frost forced him to take off his and Frost’s clothing (not that
Frost did it himself) and that no abuse occurred in the bathroom.
Mother also testified at the preliminary hearing, stating that during the
relevant time period, she sought medical treatment from Dr. Nichols for the
child’s bowel condition. After hearing Mother testify that the child never
had experienced bowel problems before, Frost advised his attorney that
Mother told him the child did have soiling issues prior to moving in with
Frost in 2001. Frost directed his counsel, Phillip Crawford, to obtain the
child’s medical records.
State v. Frost, 2009 WL 2371007, at *2.
Contrary to Mr. Frost’s wishes, Mr. Crawford did not request the child’s medical
records. According to Mr. Frost, he also “told [Mr.] Crawford on several occasions that
[A.G., the child’s mother,] threatened to send him back to prison.” Aplt. Br. at 8. Mr.
Frost further asserts that Mr. Crawford’s co-counsel, Michelle Durrett, was present
during one of these occasions. Id. at 8-9. In addition, Mr. Frost contends that he told
Kenneth Lindquist, Mr. Crawford’s investigator, about A.G.’s threat. Id. In preparation
for Mr. Frost’s first trial, Mr. Lindquist prepared subpoenas for several witnesses who
could testify about A.G.’s threat to send Mr. Frost “back to prison one way or another.”
State v. Frost, 2009 WL 2371007, at *9. The first trial began on September 19, 2005, but
the judge declared a mistrial after the state’s witness violated a motion in limine
prohibiting the introduction of evidence about Mr. Frost’s criminal history.
b. Second trial, conviction, and motion for new trial
The second trial began on November 28, 2005. Mr. Crawford did not subpoena
any of the witnesses who indicated their willingness to testify about A.G.’s threats. Nor
-6-

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 7

did Mr. Crawford investigate the child’s medical records as directed by Mr. Frost. At
trial, the child testified that Mr. Frost had sexually abused him on two occasions. When
asked about the first instance, the child told the prosecutor that he was playing with his
toy cars in his bedroom when Mr. Frost entered the room and
told me to stand up and touched me, my front private part. And then he
made me touch him in the same place. Then he made me pull down my
pants and he touched me. And then he made me—he made me pull down
his and he made me touch him. And then that’s when he threatened to hurt
my mom if I ever told anybody.
State v. Frost, 2009 WL 2371007, at *5 (quoting Trial Tr. Vol. II, at 242-43).
When asked about the second incident, the child testified:
He pushed me in my mom’s room and he touched me in the private part.
And then he told me to pull down my pants and he touched me in my
private part again. And then he—then he made me pull down his pants and
touched me in his private part. And then he made me do that a couple
times. And then he pulled up his pants and left the room.
Id. at *6 (quoting Trial Tr. Vol. I, at 245).
This testimony varied from prior accounts given by the child in several respects:
(1) the child told counselor Cindy Coggins that Mr. Frost removed the child’s pants but
later testified that Mr. Frost made the child remove them himself, see Trial Tr. Vol. II, at
196-97, 274; (2) the child told Ms. Coggins and social worker Sarah Byall that Mr. Frost
removed his own pants but later testified that Mr. Frost forced the child to do so, see id.
at 196-97, 242-43, 245, 289-90; (3) the child told Ms. Coggins and Ms. Byall that Mr.
Frost pushed him onto the bed during one incident but later testified that Mr. Frost
pushed him onto the floor, see id. at 197, 276, 287; (4) the child told Ms. Coggins that
-7-

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 8

some of the abuse during the second incident occurred in the bathroom of the mother’s
bedroom but denied this allegation at trial, see id. at 197, 284, 302-03; and (5) the child
told Ms. Byall that Mr. Frost had touched his “back private part” but denied this
allegation at trial, id. at 293, 323. The child also had trouble recalling the precise date
and time of day when one of the incidents occurred. See id. at 270, 277, 291, 299-300,
303.
Apart from these details, however, the child’s trial testimony was consistent with
his testimony at the preliminary hearing and his pretrial interviews with counselor Cindy
Coggins and social worker Sarah Byall. Ms. Coggins, for example,
testified from her clinical notes regarding the child’s disclosure. Although
there were some discrepancies, Coggins’ notations regarding the abuse
were consistent with the child’s testimony at trial; during the first incident
Mother and the child’s sibling were at the grocery store, the child was
playing in his bedroom when Frost approached him, sexually touched him
over and under his clothing, forced the child to touch Frost under Frost’s
clothing, and threatened the child, warning that if the child told anyone of
the abuse Frost would hurt the child’s mom. During the second incident,
the child was in the living room watching television when Frost pushed the
child into the bedroom Frost shared with Mother, sexually touched the
child, forced the child to touch him, and threatened the child, saying, “If
you tell anybody I’ll hurt you.” According to Coggins, the child never
wavered or hesitated in telling her what had happened. Furthermore,
Coggins also stated the child “seemed to be relieved” after disclosing the
alleged abuse to her, and that during later counseling sessions the child
“seemed more peaceful” and “didn’t seem to be as withdrawn.”
State v. Frost, 2009 WL 2371007, at *6 (quotations omitted); see also Trial Tr. Vol. II, at
196-97.

-8-

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 9

A significant portion of the trial testimony concerned the child’s bowel control
problems. The child’s mother testified that her son had “never” experienced these
problems before meeting Mr. Frost in 2001. Trial Tr. Vol. I, at 124. When asked by the
prosecution on three additional occasions whether she could recall her son having soiling
problems before 2001, she replied “no” each time. Id. at 123. Although the child
maintained that he intentionally soiled his pants to ward off Mr. Frost’s advances, see id.
Vol. II, at 246, 310, expert testimony suggested that the condition was beyond the child’s
control:
[Ms.] Coggins testified Mother identified the child’s bowel condition as
encopresis, which Coggins described as a condition characterized by
accidental, involuntary bowel movements. Coggins explained to the jury
that, although encopresis generally stems from a physical medical
condition, it also can be psychological in nature. When specifically asked
whether, if psychologically grounded, the condition is consistent with a
child that has been sexually abused, Coggins responded that “it can be.”
In response, Frost presented the testimony of Dr. William Logan, a
physician specializing in psychiatry. According to Dr. Logan, the
accidental soiling which characterizes encopresis could be caused by
several things, including food allergies, gastrointestinal problems, or
anxiety. From what Dr. Logan could garner from his review of the child's
history, there were several potential causes of the child’s soiling problem,
including developmental delays, relocations, parental relationships, and
numerous school changes. Dr. Logan’s testimony stressed that encopresis
could result from any of these anxiety provoking phenomena, not just
sexual abuse.
When cross-examined by the State at trial, Dr. Logan admitted he was a
forensic psychiatrist, which he defined as “one who yields a psychiatric
opinion about some issue of legal importance.” Furthermore, when the
prosecutor suggested that the “meat and bones” of being a forensic
psychiatrist involved “presenting your opinions in court to a fact-finder,”
Dr. Logan disagreed and explained that his primary function was to
-9-

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 10

undertake a solid clinical evaluation of the individual. Dr. Logan admitted,
however, that in this case, he had been unable to conduct a clinical
evaluation of the child and that his opinion was based on the limited
records that had been made available, including the child’s interviews with
Coggins and [with social worker Sarah Byall] at Sunflower House, as well
as the preliminary hearing transcript.
State v. Frost, 2009 WL 2371007, at *2-3.
Mr. Frost also testified at trial. He denied that he had ever seen the child
with his pants pulled down or that the child saw him with his pants pulled down,
and he further denied that any fondling or other sexual contact had occurred. Id. at
*3; see also Trial Tr. Vol. II, at 380-81.
The jury convicted Mr. Frost as charged. Mr. Frost requested new counsel
and filed a motion for a new trial based on ineffective assistance. Specifically,
Mr. Frost faulted his counsel’s failure to request the child’s medical records,
which revealed—contrary to the testimony of both A.G. and her son—that he had
been treated for bowel problems in September 1996, approximately five years
before meeting Mr. Frost. The records also included a note to the child’s school
from August 2002 suggesting that the child’s soiling problems were attributable to
physiological, not psychological, causes: “[S]chool needs note to have juice
instead of milk. The child has bowel movement accidents if he drinks milk.”
State v. Frost, 2009 WL 2371007, at *3. Finally, Mr. Frost asserted that his
counsel failed to present evidence that A.G. told witnesses in October 2004 that
she would “send Frost back to prison one way or another.” Id. at *9.
- 10 -

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 11

After an evidentiary hearing at which Mr. Crawford, Mr. Frost, and the
child’s primary care physician testified, the state trial court concluded Mr.
Crawford’s performance was not deficient and denied Mr. Frost’s motion for a
new trial. See id. at *3. On March 7, 2007, the court sentenced Mr. Frost to 204
months in prison. See Frost v. McKune, 2013 WL 812153, at *1.
c. Kansas Court of Appeals
Mr. Frost appealed to the KCOA, raising, among other issues: (i) an ineffective
assistance claim based on his counsel’s failure to investigate the child’s medical records;
and (ii) three other claims, including an ineffective assistance claim based on his
counsel’s failure to seek testimony about A.G.’s threats to send Mr. Frost “back to prison
one way or another” and two prosecutorial misconduct claims regarding commentary on
witness credibility.
i.

Ineffective assistance of counsel for failure to investigate medical
records

A majority of the KCOA panel affirmed the state trial court’s rejection of Mr.
Frost’s ineffective assistance claim. State v. Frost, 2009 WL 2371007, at *8-9.
Although the majority determined that trial counsel’s failure to investigate the victim’s
medical history was constitutionally deficient, see id. at *5, it nonetheless held that Mr.
Frost was not prejudiced because of the “overwhelming amount of evidence” against
him, id. at *8. The KCOA began its prejudice analysis by articulating the following
standard:
- 11 -

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 12

To establish prejudice, a defendant must demonstrate a reasonable
probability that, but for counsel’s deficient performance, the result of the
proceeding would have been different.
Id. at *5. Applying this standard to the facts of Mr. Frost’s case, the KCOA determined
that:
[Mr.] Frost must demonstrate a reasonable probability that he would have
been acquitted by the jury if they had known (1) the child was seen by a
doctor with regard to a soiling condition 5 years earlier, when he was 4
years old, and (2) there was a note dated August 19, 2002, in the child’s
medical records stating “school needs note to have juice instead of milk.
The child has bowel movement accidents if he drinks milk.” Given the
overwhelming evidence of Frost’s guilt presented at trial, we are not
persuaded that the jury would have reached a different result had it been
presented with the information to which Frost refers.
Id.
The KCOA observed that with respect to the evidence presented to the jury, “when
compared to what was consistent with the child’s statements, the inconsistencies are
nominal.” Id. at *7. According to the KCOA, the “child’s accounts established the
elements of the crime for which [Mr.] Frost was convicted, and it was the jury’s function
to determine his credibility.” Id. Further, the “jury was made well aware of evidence
explaining away the significance of encopresis, yet chose nevertheless to convict [Mr.]
Frost.” Id. Thus, the “medical records argued for by [Mr.] Frost pale[d] in comparison.”
Id.
As for the evidence not presented to the jury, the court determined that the
revelation that the child had suffered from soiling issues five years before meeting Mr.
Frost would not “have swayed the minds of the jurors.” Id. at *8. “Even if [Mr.]
- 12 -

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 13

Crawford had introduced evidence proving that the child had bowel problems long before
meeting [Mr.] Frost, this fact does not contradict the child’s direct testimony that [Mr.]
Frost sexually abused him and that he was ‘okay’ with soiling himself because he wanted
[Mr.] Frost to think he was ‘kind of gross’ and to ‘stay away.’” Id. Indeed, the state
court observed, “because the record cites no medical cause for the bowel problems that
occurred when the child was 4 years old, the jury would have been free to infer that the
child soiled himself in response to anxiety or trauma back then and, because the bowel
condition recurred, there must have been some anxiety or trauma occurring around the
time the child moved in with [Mr.] Frost.” Id. Finally, the state court found the “child’s
young age, 4 years old, at the time of the pre-abuse soiling[,] render[ed] negligible any
effect [the] medical records could have had in impeaching the child’s testimony, at 13
years old, that no soiling problems existed prior to coming into contact with [Mr.] Frost.”
Id.
Accordingly, the KCOA affirmed the state trial court’s conviction because
“evidence establishing one solitary incident of pre-abuse soiling” could not “have had
any likelihood of changing the result at trial.” Id.
One judge dissented on the issue of prejudice. According to the dissenting
member of the panel, “one objective fact seemed to corroborate both the mother’s
testimony and that of the child: his problem of soiling his pants began only after he had
moved in with [Mr.] Frost and, thus, presumably in response to [Mr.] Frost’s abuse.” Id.
at *13 (Leben, J., dissenting). Had Mr. Crawford requested the child’s medical history,
- 13 -

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 14

“the cross-examination of those witnesses would have been much stronger,” and the “jury
might well have considered the objective foundation of the State’s case sufficiently
shaken that reasonable doubt of guilt had been shown.” Id.
ii.

Remaining claims

The KCOA also rejected Mr. Frost’s claims that (1) his trial counsel was
ineffective in failing to subpoena witnesses to provide testimony on A.G.’s threat to send
Mr. Frost “back to prison one way or another” and (2) the prosecution improperly
attacked the credibility of Mr. Frost’s expert. See id. at *9-11.2
d. Kansas Supreme Court
Mr. Frost petitioned the Kansas Supreme Court for discretionary review of the
ineffective assistance claim based on trial counsel’s failure to investigate the child’s
medical history. He did not include the other ineffective assistance claim or the
prosecutorial misconduct claims in his petition. See Frost v. McKune, 2013 WL 812153,
at *2 (citing Aplt. Pet. for Review at 1, 5-11). The Kansas Supreme Court denied review
on September 7, 2010.
2. Federal Proceedings
On September 28, 2011, Mr. Frost filed a federal habeas petition under 28 U.S.C.
§ 2254, alleging four grounds for relief: (1) ineffective assistance for failure to
2

The KCOA did not address Mr. Frost’s second claim of prosecutorial
misconduct—that the prosecution improperly bolstered the child’s credibility in its
closing argument. Because we determine that all three of these claims are procedurally
barred, as explained below, we do not describe the KCOA’s analysis in more detail.
- 14 -

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 15

investigate the child’s medical history; (2) ineffective assistance for failure to elicit
testimony on A.G.’s threats to send Mr. Frost “back to prison one way or another”;
(3) improper prosecutorial commentary attacking Mr. Frost’s expert during closing
arguments; and (4) improper prosecutorial commentary bolstering the child’s credibility
during closing arguments.
a. Ineffective assistance claim based on failure to investigate the child’s medical
history
Applying the considerable deference due to state decisions on the merits under
AEDPA, the district court considered and rejected Mr. Frost’s claim that his trial counsel
provided ineffective assistance by failing to investigate the child’s medical history. See
Frost v. McKune, 2013 WL 812153, at *3-10. Although the district court observed that it
would be a close call under de novo review, it felt “compelled” by “the narrow scope of
review in habeas cases,” id. at *10, to dismiss Mr. Frost’s petition because the KCOA’s
resolution of the prejudice issue was neither contrary to nor an unreasonable application
of Strickland v. Washington, 466 U.S. 668 (1984), which enunciated the federal standard
for evaluating ineffective assistance claims.3 The district court nevertheless granted a
COA on this claim. See Frost v. McKune, 2013 WL 812153, at *11.

3

The district court acknowledged that the KCOA had determined that Mr.
Crawford’s performance was constitutionally deficient, but declined to address that issue
in more detail. See Frost v. McKune, 2013 WL 812153, at *10.

- 15 -

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 16

b. Procedurally barred claims
The federal district court determined that Mr. Frost’s remaining claims were
procedurally barred because they were not fairly presented to the Kansas Supreme Court
and would now be untimely under Kansas’s procedural rules. See Frost v. McKune, 2013
WL 812153, at *2; see also 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel, 526 U.S.
838, 845, 848-49 (1999) (requiring state prisoners to give state courts “one full
opportunity” to resolve constitutional issues related to their custody by “invoking one
complete round of the State’s established appellate review process,” including
discretionary review).4 Nor could Mr. Frost satisfy either of the exceptions to this
anticipatory procedural bar because he had failed to (1) “demonstrate cause for his failure
to present his claims to the state court,” Frost v. McKune, 2013 WL 812153, at *2, or (2)
“supplement his constitutional claim with a ‘colorable showing of factual innocence,’” id.
(quoting Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986)). Accordingly, the district court

4

In particular, the district court rejected the following claims: (1) Mr. Frost’s
ineffectiveness claim concerning his counsel’s failure to present evidence about A.G.’s
threat that she would “send him back to prison one way or another”; (2) his claim
regarding improper prosecutorial commentary attacking Mr. Frost’s expert during closing
arguments; and (3) his claim regarding improper prosecutorial commentary bolstering the
child’s credibility during closing arguments. Frost v. McKune, 2013 WL 812153, at *12.

- 16 -

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 17

dismissed these claims and declined to grant a COA on any of them. Mr. Frost filed a
timely notice of appeal.5

II. JURISDICTION AND STANDARD OF REVIEW
On appeal, Mr. Frost presses all four issues raised in the district court. A COA is a
prerequisite to appellate jurisdiction in a habeas action. See 28 U.S.C. § 2253(c)(1)(A);
Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). As noted above, the district court
granted a COA “on the issue whether [Mr. Frost’s] trial counsel was unconstitutionally
ineffective in failing to investigate the child’s medical records.” Frost v. McKune, 2013
WL 812153, at *11. We therefore have jurisdiction to review this claim pursuant to 28
U.S.C. §§ 1291 and 2253.6
The KCOA rejected this claim on the merits. Our review is therefore governed by
AEDPA, which “erects a formidable barrier to federal habeas relief,” Burt v. Titlow, 134
S. Ct. 10, 16 (2013), and “requires federal courts to give significant deference to state
court decisions” on the merits. Lockett v. Trammel, 711 F.3d 1218, 1230 (10th Cir.

5

On May 7, 2013, the district court issued an order granting Mr. Frost leave to
proceed in forma pauperis (“ifp”) on appeal.
6

As noted above, the district court did not issue a COA on any of the claims that it
dismissed as procedurally barred. Mr. Frost argues the merits of these claims in his
opening brief, but he does not expressly seek a COA. See Aplt. Br. at 29-38. We may
nevertheless construe his notice of appeal as a request for a COA. See United States v.
Gordon, 172 F.3d 753, 753-54 (10th Cir. 1999) (“Although Defendant did not renew his
request for a COA in this court, we construe his notice of appeal as such a request.”
(citing Fed. R. App. P. 22(b)(2))). We therefore consider whether Mr. Frost is entitled to
a COA on these claims later in this opinion.
- 17 -

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 18

2013); see also Hooks v. Workman, 689 F.3d 1148, 1162-63 (10th Cir. 2012) (“This
highly deferential standard for evaluating state-court rulings demands state-court
decisions be given the benefit of the doubt.” (quotations omitted)).
Under AEDPA, we may not grant a state prisoner’s petition under § 2254 with
respect to “any claim that was adjudicated on the merits in State court proceedings”
unless the prisoner can show that the state court’s adjudication of the claim “resulted in a
decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1); see also Harrington v. Richter, 131 S. Ct. 770, 783-84 (2011).
“Clearly established law is determined by the United States Supreme Court, and
refers to the Court’s holdings, as opposed to the dicta.” Lockett, 711 F.3d at 1231
(quotations omitted). A state court decision is “contrary to” the Supreme Court’s clearly
established precedent “if the state court applies a rule different from the governing law
set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme
Court has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S.
685, 694 (2002) (quotations omitted).
A state court decision is an “unreasonable application” of Supreme Court
precedent if “the state court identifies the correct governing legal rule from [the] Court’s
cases but unreasonably applies it to the facts of the particular state prisoner’s case.”

- 18 -

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 19

Williams v. Taylor, 529 U.S. 362, 407 (2000) (opinion of O’Connor, J.);7 accord Wiggins
v. Smith, 539 U.S. 510, 520 (2003). “Evaluating whether a rule application was
unreasonable requires considering the rule’s specificity. The more general the rule”—
like the one adopted in Strickland—“the more leeway [state] courts have in reaching
outcomes in case-by-case determinations.” Richter, 131 S. Ct. at 786 (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). An “unreasonable application of
federal law” is therefore “different from an incorrect application of federal law.” Id. at
785 (quoting Williams, 529 U.S. at 410 (opinion of O’Connor, J.)).
We may “issue the writ” only when the petitioner shows “there is no possibility
fairminded jurists could disagree that the state court’s decision conflicts with [the
Supreme] Court’s precedents.” Id. at 786 (emphasis added). “Thus, “even a strong case
for relief does not mean that the state court’s contrary conclusion was unreasonable.” Id.
“‘If this standard is difficult to meet’—and it is—‘that is because it was meant to be.’”
Titlow, 134 S. Ct. at 16 (quoting Richter, 131 S. Ct. at 786). Indeed, AEDPA stops just
“short of imposing a complete bar on federal court relitigation of claims already rejected
in state proceedings.” Richter, 131 S. Ct. at 786. Accordingly, “[w]e will not lightly
conclude that a State’s criminal justice system has experienced the ‘extreme malfunction’

7

The Supreme Court’s opinions in Williams were fractured. Justice O’Connor
authored the opinion for the Court interpreting the meaning of “contrary to” and
“unreasonable application” in § 2254(d)(1). Justice Stevens authored the opinion for the
Court interpreting the “clearly established” element. We therefore specify the authoring
justice when citing to Williams.
- 19 -

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 20

for which federal habeas relief is the remedy.” Titlow, 134 S. Ct. at 16 (quoting Richter,
131 S. Ct. at 786).
In making this assessment, however, “we review the district court’s legal analysis
of the state court decision de novo” and its factual findings, if any, for clear error. Byrd v.
Workman, 645 F.3d 1159, 1165 (10th Cir. 2011) (quotations omitted). Finally, our
review is “limited to the record that was before” the KCOA. Cullen v. Pinholster, 131 S.
Ct. 1388, 1398 (2011).

III. DISCUSSION
Mr. Frost raises four grounds for relief: (1) ineffective assistance of counsel in
failing to investigate the child’s medical records; (2) ineffective assistance of counsel in
failing to elicit testimony about A.G.’s threats to send Mr. Frost “back to prison one way
or another,” State v. Frost, 2009 WL 2371007, at *8-9; (3) improper prosecutorial
comment assailing the credibility of Mr. Frost’s expert; and (4) improper prosecutorial
comment vouching for the credibility of the child. For the reasons stated below, we
(A) affirm the district court’s decision on the first ground and (B) deny COA on the
remaining three claims.
A. Ineffective Assistance of Counsel for Failure to Request Medical Records
1. Legal Background
The Supreme Court has held that the Sixth Amendment right to counsel includes a
right to effective representation. Under Strickland, a defendant must demonstrate two
elements to prove ineffective assistance:
- 20 -

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 21

First, the defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel was
not functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.
466 U.S. at 687.
To establish constitutionally deficient performance, “the defendant must show that
counsel’s representation fell below an objective standard of reasonableness.” Id. at 688;
see also Williams, 529 U.S. at 390-91 (opinion of Stevens, J.). A court considering such
a claim must apply a “strong presumption” that counsel’s representation was within the
“wide range” of reasonable assistance. Strickland, 466 U.S. at 689. Because we agree
with the KCOA’s conclusion that Mr. Crawford’s failure to investigate the child’s
medical records fell below this standard, see State v. Frost, 2009 WL 2371007, at *5, we
focus here on Strickland’s prejudice inquiry.8
To establish prejudice, a defendant “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. It is not enough “to show that
the errors had some conceivable effect on the outcome of the proceeding.” Richter, 131

8

Indeed, under Strickland, counsel “has a duty to make reasonable investigations
or to make a reasonable decision that makes particular investigations unnecessary.”
Strickland, 466 U.S. at 691. Counsel’s failure in this case to obtain the child’s medical
records plainly fell below an objective standard of reasonableness. See id. at 687-88.
- 21 -

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 22

S. Ct. at 787 (quoting Strickland, 466 U.S. at 687). Rather, the “likelihood of a different
result must be substantial . . . .” Id. at 792 (emphasis added).
Thus, “[i]n assessing prejudice under Strickland, the question is not whether a
court can be certain counsel’s performance had no effect on the outcome or whether it is
possible a reasonable doubt might have been established if counsel acted differently.” Id.
at 791. “Instead, Strickland asks whether it is ‘reasonably likely’ the result would have
been different.” Id. at 792 (quoting Strickland, 466 U.S. at 696). “This does not require
a showing that counsel’s actions ‘more likely than not altered the outcome,’ but the
difference between Strickland’s prejudice standard and a more-probable-than-not
standard is slight and matters ‘only in the rarest case.’” Id. (quoting Strickland, 466 U.S.
at 693, 697).
2. Strickland Review Under AEDPA
As noted above, because the KCOA rejected Mr. Frost’s ineffective assistance
claim on the merits, we must evaluate this claim through AEDPA’s deferential lens. See
28 U.S.C. § 2254(d)(1). We therefore may grant relief only if Mr. Frost demonstrates
that the KCOA’s decision was “contrary to, or involved an unreasonable application of,
clearly established” Supreme Court law. Id.; see also Richter, 131 S. Ct. at 783-84.
“It is past question that the rule set forth in Strickland qualifies as ‘clearly
established Federal law, as determined by the Supreme Court of the United States.”
Williams, 529 U.S. at 391 (opinion of Stevens, J.). Thus, “[i]f a state court were to reject
a prisoner’s claim of ineffective assistance of counsel on the grounds that [he] had not
- 22 -

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 23

established by a preponderance of the evidence that the result of his criminal proceeding
would have been different” absent counsel’s deficient performance, that decision would
be contrary to clearly established Supreme Court precedent because the prisoner “need
only demonstrate a ‘reasonable probability that . . . the result of the proceeding would
have been different.’” Id. at 405-06 (opinion of O’Connor, J.) (quoting Strickland, 466
U.S. at 694) (emphasis added); accord Richter, 131 S. Ct. at 792 (Strickland does not
“require a showing that counsel’s actions ‘more likely than not altered the outcome’”
(quoting Strickland, 466 U.S. at 693)).
Even if a state court applied the proper “reasonable probability” standard from
Strickland, we may still grant relief if it applied the standard “unreasonabl[y],” 28 U.S.C.
§ 2254(d)(1). However, an “‘unreasonable application of federal law is different from an
incorrect application of federal law.’” Richter, 131 S. Ct. at 785 (quoting Williams, 529
U.S. at 410 (opinion of O’Connor, J.)). Although making out a Strickland claim can be
an onerous burden, “[e]stablishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult.” Id. at 788 (emphasis added).
Indeed, “[t]he Strickland standard is a general one, so the range of reasonable
applications is substantial.” Id.
The Supreme Court has articulated a test for reasonableness: a state court decision
is reasonable “so long as ‘fairminded jurists could disagree’ on the correctness of the
state court’s decision.” Id. at 786 (quoting Alvarado, 541 U.S. at 664).

- 23 -

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 24

The Court’s “fairminded jurists” test thus serves as a proxy for “unreasonable
application.” It is designed to help federal courts reviewing § 2254 habeas motions to
determine whether a state court decision that would be incorrect under de novo review is
also unreasonable. Under the test, if all fairminded jurists would agree the state court
decision was incorrect, then it was unreasonable and the habeas corpus writ should be
granted. If, however, some fairminded jurists could possibly agree with the state court
decision, then it was not unreasonable and the writ should be denied. See Lockett, 711
F.3d at 1231 (“We may reverse only if all ‘fairminded jurists’ would agree that the state
court got it wrong.” (quoting Richter, 131 S. Ct. at 786)); Loggins v. Thomas, 654 F.3d
1204, 1220 (11th Cir. 2011) (“[I]f some fairminded jurists could agree with the state
court’s decision, although others might disagree, federal habeas relief must be denied.”).
We must apply the Supreme Court’s “fairminded jurists” test to Mr. Frost’s case.
Thus, to obtain relief under § 2254(d), Mr. Frost must demonstrate “there is no possibility
fairminded jurists could disagree” that he met his burden before the KCOA to show a
reasonable likelihood of a different result if the medical records had been used at trial.
See Richter, 131 S. Ct. at 786 (“A state court’s determination that a claim lacks merit
precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the
correctness of the state court’s decision.” (quoting Alvarado, 541 U.S. at 664)).

- 24 -

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 25

3. Analysis
Mr. Frost argues the KCOA (1) relied on a preponderance standard contrary to
Strickland’s “reasonable probability” prejudice standard; and (2) unreasonably applied
the “reasonable probability” standard to the facts of his case. We disagree.
a. The KCOA did not apply a standard contrary to Strickland’s prejudice
standard.
First, the KCOA did not apply a standard that was “contrary to” Strickland. The
KCOA correctly recognized that “[t]o establish prejudice, a defendant must demonstrate
a reasonable probability that, but for counsel’s deficient performance, the result of the
proceeding would have been different.” State v. Frost, 2009 WL 2371007, at *5. The
Supreme Court has recently reiterated the very same standard: “The defendant must
show that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Pinholster, 131 S. Ct. at 1403
(quoting Strickland, 466 U.S. at 694).
Mr. Frost argues that the KCOA used an “outcome determinative” standard that
“is directly contrary to clearly established Supreme Court precedent.” Aplt. Br. at 25. As
Mr. Frost observes, some language in the KCOA opinion perhaps suggests it held Mr.
Frost to a higher standard than that dictated by Strickland. At one point, the KCOA states
that “[g]iven the overwhelming evidence of [Mr.] Frost’s guilt presented at trial, we are
not persuaded that the jury would have reached a different result had it been presented
with the information to which [Mr.] Frost refers.” State v. Frost, 2009 WL 2371007, at
- 25 -

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 26

*5 (emphasis added)). This phrasing (“would have”), Mr. Frost argues, evokes a “more
likely than not” preponderance standard, which conflicts with Strickland’s “reasonable
probability” standard. See Williams, 529 U.S. at 406 (opinion of O’Connor, J.); see also
Aplt. Br. at 26.9
But the foregoing articulation of the prejudice standard does not render the
KCOA’s decision “contrary to” clearly established “Federal law, as determined by the
Supreme Court.” 28 U.S.C. § 2254(d)(1). The Court has observed that similar use of the
words “would not have” does not necessarily “imply any particular standard of
probability.” Holland v. Jackson, 542 U.S. 649, 654 (2004) (per curiam). Indeed, when
viewed in its entirety, the KCOA’s proper articulation of the prejudice standard in other
parts of its opinion confirms that it was not relying on an impermissible “more likely than
not” preponderance standard. See id. at 654 (“We have held that such use of the
unadorned word ‘probably’ is permissible shorthand when the complete Strickland
standard is elsewhere recited.” (citing Woodford v. Visciotti, 537 U.S. 19, 23-24 (2002)
(per curiam))). The KCOA described the evidence against Mr. Frost as “overwhelming”
9

At oral argument, Mr. Frost raised for the first time the argument that the KCOA
erred in requiring a reasonable probability of “acquittal,” as opposed to a “different
result.” Because “issues may not be raised for the first time at oral argument,” United
States v. Abdenbi, 361 F.3d 1282, 1289 (10th Cir. 2004), we decline to address this
argument. Even if we did, we note that this articulation of Strickland’s prejudice
standard is not “diametrically different” from, or “mutually opposed” to, clearly
established Supreme Court law, Williams, 529 U.S. at 406 (opinion of O’Connor, J.). In
Strickland itself, the Court observed that “the question is whether there is a reasonable
probability that, absent the errors, the fact finder would have had a reasonable doubt
respecting guilt.” Strickland, 466 U.S. at 695 (emphasis added).
- 26 -

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 27

and concluded that it did “not believe that evidence establishing one solitary incident of
pre-abuse soiling could have had any likelihood of changing the result at trial.” State v.
Frost, 2009 WL 2371007, at *8 (emphasis added). Although perhaps based on an
exaggerated reading of the record, this articulation of the prejudice standard is within the
permissible bounds of Strickland’s admonition against requiring a preponderance of
evidence. See Pinholster, 131 S. Ct. at 1403 (“A reasonable probability . . . requires a
‘substantial,’ not just ‘conceivable,’ likelihood of a different result.” (quoting Richter,
131 S. Ct. at 792)).
Accordingly, we hold that the KCOA’s decision was not “contrary to” clearly
established law as determined by the Supreme Court, see 28 U.S.C. § 2254(d)(1), and Mr.
Frost is not entitled to relief on this ground.
b. The KCOA did not unreasonably apply Strickland’s reasonable probability
standard.
Second, although the issue is close, Mr. Frost has not shown the KCOA’s ruling
on Strickland’s prejudice standard was “so lacking in justification that there was an
error . . . beyond any possibility for fairminded disagreement.” Titlow, 134 S. Ct. at 16
(quoting Richter, 131 S. Ct. at 786-87) (emphasis added).
At trial, the State presented evidence to link the victim’s encopresis problems with
the alleged abuse. In its opening statement and closing argument, the State argued there
was a causal connection between the encopresis and the abuse. See Trial Tr. Vol. I, at
93-95; id. Vol. II, at 428-29. It relied primarily on the mother’s testimony (1) denying
- 27 -

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 28

the victim had any encopresis problems before her relationship with Mr. Frost and
(2) saying the problems arose during the time they were living with Mr. Frost and when
Mr. Frost attempted to contact her two years later. See id. Vol. I, at 93-95, 123-27; id.
Vol. II, at 428-29. Counselor Cindy Coggins testified the mother told her in May 2004
that the child had experienced encopresis for three years. See id. Vol. II, at 192. She also
testified encopresis can be related to sexual abuse. See id. at 190-91. The defense,
having to accept the mother’s version of when the encopresis started because it had not
obtained the records showing otherwise, attempted to rebut the encopresis connection
through expert witness Dr. Logan, who suggested physiological and psychological factors
unrelated to sexual abuse. See id. Vol. I, at 100-06; id. Vol. II, at 338-39, 415-16.
But it turns out the mother’s testimony was false as to when the problems began.
Mr. Frost’s lawyer failed to obtain records showing the child’s primary care physician,
Dr. Nichols, treated the child for encopresis roughly four years before he and his mother
met Mr. Frost. The defense lawyer’s failure to obtain these records violated the
performance element of Strickland. Whether his failure violated Strickland’s prejudice
element is less clear. The records undermine the mother’s credibility and weaken the
evidence of correlation between the encopresis and the abuse. On the other hand, they
confirm the child had encopresis and do not foreclose that the abuse revived or
exacerbated that condition.
The KCOA provided several reasons why it concluded trial counsel’s error did not
prejudice Mr. Frost. The court specifically relied on the child’s mostly consistent
- 28 -

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 29

testimony, the limited impeachment value of the medical records as to the child’s
allegations that he had been abused, the supporting testimony of counselor Coggins and
social worker Byall, and the jury’s decision not to credit Mr. Frost’s expert. See State v.
Frost, 2009 WL 2371007, at *6-8. Additionally, the KCOA observed that “one solitary
incident of pre-abuse soiling” was not inconsistent with the prosecution’s theory that the
child’s condition became indisputably worse after meeting Mr. Frost. Id. at *8.
Mr. Frost now argues the mother’s false denial about previous encopresis
problems shows she tried to induce her son to tell a false story to two therapists, the
police, the preliminary hearing court, and the trial court jury. But that is only one
possible explanation for her testimony. She may have forgotten the earlier doctor visit
for encopresis or at least the timing of it. Or she may have thought, mistakenly and
wrongly, that admitting to the earlier encopresis would weaken her son’s truthful
testimony and the State’s case.
As the prosecution said in closing argument, the outcome of this case turned on
whether the jury believed the child’s testimony about the two incidents. See Trial Tr.
Vol. II, at 404. We have carefully reviewed the entire record. The child’s testimony was
specific and mostly consistent about the primary location of each incident, Mr. Frost’s
aggressive behavior, the general sequence of events, and Mr. Frost’s threats to harm his
mother if he told anyone. The minor inconsistencies with previous tellings were more in
keeping with a credible repetition of the events than a story that is identical from one
telling to another. The child not only endured the ordeal of talking in court about the
- 29 -

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 30

abuse, but also the embarrassment of discussing his encopresis condition and his belief it
would ward off Mr. Frost.
The KCOA’s decision did not discuss the credibility of A.G.—the child’s
mother—in its prejudice application. As the dissent observes, the new evidence that the
child had suffered from a bowel control problem before meeting Mr. Frost and that this
problem was potentially attributable to milk (as opposed to psychological trauma) had
impeachment potential given that A.G. repeatedly denied her son had experienced soiling
problems before her meeting Mr. Frost. See Trial Tr. Vol. I, at 123-24 (responding “no”
three times when asked if her son had experienced these problems before and asserting he
had “never” had soiling problems during his tumultuous childhood).
Although the medical records may weaken the mother’s credibility, they do not
materially undermine the child’s. It was the child, not his mother, who testified at trial
about the two alleged incidents of sexual abuse. His testimony established the elements
of the offense, specifically identifying Mr. Frost. The KCOA reasonably concluded that
the value of impeaching a thirteen-year-old over whether he remembered soiling himself
when he was four years old was limited when compared with the other evidence
indicating Mr. Frost’s guilt. See State v. Frost, 2009 WL 2371007, at *7-8. Indeed,
although the child denied having accidents before meeting Mr. Frost, see Trial Tr. Vol. II,
at 246, he could not even remember precisely how long he had been having the accidents
between the ages of nine and twelve. When asked whether he had “been having trouble

- 30 -

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 31

with those accidents for about three years” before seeing Ms. Coggins in May 2004, the
child responded, “I don’t remember.” Id. at 265.
In light of the foregoing, we cannot say Mr. Frost has shown the KCOA’s ruling
on his Strickland claim “was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Richter, 131 S. Ct. at 786-87 (emphasis added). We may be inclined to
agree with Mr. Frost and our dissenting colleague if our review were de novo. We also
might be more inclined to side with Mr. Frost if the test were whether the KCOA’s
analysis alone was unreasonable. For example, the KCOA’s description of the evidence
against Mr. Frost as “overwhelming,” State v. Frost, 2009 WL 2371007, at *5, and its
disbelief that the medical records “could have any likelihood of changing the result at
trial,” id. at *8 (emphasis added), were both overstatements.
But the critical question is whether the KCOA’s conclusion was itself
unreasonable. See Byrd, 645 F.3d at 1170-71 (declining to grant relief based on state
court’s “failure to conduct the specific analysis” requested by the petitioner because we
“fail[ed] to see how its conclusion . . . could be construed as being in such tension with
governing U.S. Supreme Court precedents, or so inadequately supported by the record, or
so arbitrary as to be unreasonable” (quotations omitted) (emphasis added)).
Although we may disagree with the state court’s conclusion, we cannot say Mr.
Frost has shown “there is no possibility fairminded jurists could disagree” over the
correctness of its decision. Howell v. Trammell, 728 F.3d 1202, 1213 (10th Cir. 2013)
- 31 -

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 32

(quoting and emphasizing Richter, 131 S. Ct. at 786)); see also Richter, 131 S. Ct. at 786
(“[E]ven a strong case for relief does not mean the state court’s contrary conclusion was
unreasonable.”). That is the very narrow space that AEDPA and the Supreme Court have
left us.10 We are therefore constrained to affirm.
Accordingly, because “fairminded jurists could disagree” over the correctness of
the KCOA’s conclusion that Mr. Frost failed to establish a reasonable or “substantial”

10

In this regard, we think the dissent’s true quarrel is with the Supreme Court’s
construction of AEDPA review, not the application of the AEDPA standard in this case.
Although the dissent correctly observes AEDPA “does not require all reasonable jurists
to agree that the state court was unreasonable,” House v. Hatch, 527 F.3d 1010, 1019
(10th Cir. 2008), the statute “precludes federal habeas relief so long as ‘fairminded jurists
could disagree’ on the correctness of the state court’s decision.” Richter, 131 S. Ct. at
786 (quoting Alvarado, 541 U.S. at 664).
Nor, contrary to the dissent’s assertion, does this deference “by definition preclude
relief,” Miller-El, 537 U.S. at 340, on all ineffective assistance claims advanced by
federal habeas petitioners. For example, if the new evidence in this case squarely
undermined the child’s credibility, then a state decision concluding the defendant failed
to establish prejudice would be an “error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Richter, 131 S. Ct. at 787; see,
e.g., Cannedy v. Adams, 706 F.3d 1148, 1164-65 (9th Cir. 2013) (concluding that the
state court unreasonably applied Strickland’s prejudice element because new evidence
that the alleged sexual abuse victim said she “just made the allegations of abuse up so she
could get away from it all” went “to the heart of her credibility” and “would have been
the cornerstone of Petitioner’s case”), cert. denied, 134 S. Ct. 1001 (2014). So, too, if
deficient performance prevented a defendant from presenting considerable mitigation
evidence in the penalty phase of a capital case sufficient to cause “at least one juror” to
“strike a different balance,” Wiggins, 539 U.S. at 537, or from presenting strong alibi
evidence, see, e.g., Stitts v. Wilson, 713 F.3d 887, 894 (7th Cir. 2013) (no “fairminded
jurist” would agree with state court’s finding of no prejudice where the introduction of
alibi witnesses would have transformed the trial “from a one-sided presentation of the
prosecution’s case into a battle between competing eyewitness testimony”), cert. denied,
134 S. Ct. 1282 (2014).

- 32 -

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 33

likelihood of a different result, Richter, 131 S. Ct. at 786, 792, we hold under AEDPA
review that the KCOA did not unreasonably apply Strickland’s prejudice standard to the
facts of this case.11 Mr. Frost is therefore not entitled to habeas relief on this ground.
B. Expanding the COA on Mr. Frost’s Remaining Issues
In addition to the sole issue on which the federal district court granted a COA, Mr.
Frost appeals the district court’s dismissal of (1) his claim that trial counsel provided
ineffective assistance by failing to present evidence about A.G.’s threat to send him
“back to prison one way or another”; (2) his claim that the prosecutor improperly assailed
his expert’s credibility during closing arguments; and (3) his claim that the prosecutor
improperly vouched for the child’s credibility during closing arguments.12
As previously noted, Mr. Frost may not appeal the federal district court’s decision
without a COA. Miller-El, 537 U.S. at 335-36; Lockett, 711 F.3d at 1249. The district
court dismissed each of these claims on procedural grounds and refused to grant a COA

11

In reaching this conclusion, we do not consider A.G.’s alleged threat to send Mr.
Frost “back to prison one way or another,” State v. Frost, 2009 WL 2371007, at *9. Mr.
Frost advances an ineffective assistance claim based on his trial counsel’s failure to elicit
testimony on this threat, but, as we explain below, we deny COA on this claim because
reasonable jurists would not debate the district court’s determination that Mr. Frost is
procedurally barred from raising this claim in federal court. Accordingly, our prejudice
inquiry here does not include this evidence. See Hooks, 689 F.3d at 1191-92 (rejecting
five of petitioner’s six ineffective assistance claims on performance grounds and
conducting prejudice inquiry on remaining claim without considering additional evidence
related to the other five claims of ineffective assistance).
12

Mr. Frost also asserts that the cumulative error from these three claims and his
other ineffective assistance claim requires reversal.
- 33 -

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 34

for any of them. Although Mr. Frost does not explicitly seek a COA, we construe his
filing of a notice of appeal as a request for a COA. See Fed. R. App. P. 22(b)(2) (“If no
express request for a certificate is filed, the notice of appeal constitutes a request
addressed to the judges of the court of appeals.”); see also United States v. Gordon, 172
F.3d 753, 753-54 (10th Cir. 1999) (citing Fed. R. App. P. 22(b)(2)).
1. Standard for Granting COA
Under AEDPA, we may not issue a COA unless “the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253; see also
Slack v. McDaniel, 529 U.S. 473, 483 (2000). When a district court dismisses a petition
on procedural grounds “without reaching the prisoner’s underlying constitutional claim,”
a COA cannot issue unless the petitioner shows both (1) “that jurists of reason would find
it debatable whether the petition states a valid claim of the denial of a constitutional
right” and (2) “that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.” Slack, 529 U.S. at 484; accord Dulworth v. Jones, 496
F.3d 1133, 1137 (10th Cir. 2007). Rather than addressing these two threshold
requirements in order, we may “resolve the issue whose answer is more apparent from
the record and arguments.” Slack, 529 U.S. at 485.
2. Legal Background
a. Exhaustion and anticipatory procedural bar
A federal court cannot grant a state prisoner’s habeas petition unless the petitioner
has exhausted his claims in state court. See 28 U.S.C. § 2254(b)(1). Relevant here, a
- 34 -

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 35

state prisoner must give state courts “one full opportunity to resolve any constitutional
issues by invoking one complete round of the State’s established appellate review
process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Thus, any claims not
included in a petition for discretionary review are unexhausted. See id.
Mr. Frost’s claims are now and have long been untimely under Kansas state law.
See Kan. Sup. Ct. R. 8.03(a)(1) (“jurisdictional” 30 day limit for petitioning state
supreme court for discretionary review); id. 183(c)(3) (allowing collateral post-conviction
relief for “trial errors affecting constitutional rights” that “could have been raised on
appeal” only when “exceptional circumstances excuse the failure to appeal”); Kan. Stat.
Ann. § 60-1507(f) (one year time limitation for bringing action for post-conviction relief
can be extended “only to prevent a manifest injustice”). Accordingly, there is “a
procedural default for purposes of federal habeas regardless of the decision of the last
state court to which the petitioner actually presented his claims.” Coleman v. Thompson,
501 U.S. 722, 735 n.1 (1991).13 We have referred to this as an “anticipatory procedural
bar.” See Moore v. Schoeman, 288 F.3d 1231, 1233 n.3 (10th Cir. 2002) (“‘Anticipatory
procedural bar’ occurs when the federal courts apply procedural bar to an unexhausted

13

Mr. Frost does not dispute that Kansas’s procedural rules provide independent
and adequate state procedural grounds for barring further review in state court of Mr.
Frost’s unexhausted claims. We therefore do not address that issue. See Thornburg v.
Mullin, 422 F.3d 1113, 1141 (10th Cir. 2005) (declining to consider whether state
procedural bar was “adequate and independent” because habeas petitioner did “not
challenge independence and adequacy here”).

- 35 -

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 36

claim that would be procedurally barred under state law if the petitioner returned to state
court to exhaust it.”); see also Cummings v. Sirmons, 506 F.3d 1211, 1223 (10th Cir.
2007).
b. Exceptions to the anticipatory procedural bar
There are two circumstances where a federal court may nevertheless consider
claims subject to an anticipatory procedural bar: (1) if the prisoner has alleged sufficient
“cause” for failing to raise the claim and resulting “prejudice” or (2) if denying review
would result in a fundamental miscarriage of justice because the petitioner has made a
“credible” showing of actual innocence. See Coleman, 501 U.S. at 750; House v. Bell,
547 U.S. 518, 537 (2006); McQuiggin v. Perkins, 133 S. Ct. 1924, 1931-32 (2013).
Because Mr. Frost only asserts his actual innocence and does not contend he has adequate
cause for failing to raise these claims in this case, we do not address the first exception.
“[T]he fundamental miscarriage of justice exception seeks to balance the societal
interests in finality, comity, and conservation of scarce judicial resources with the
individual interest in justice that arises in the extraordinary case.” Schlup v. Delo, 513
U.S. 298, 324 (1995). To make a credible showing of actual innocence, a “petitioner
must ‘support his allegations of constitutional error with new reliable evidence—whether
it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence—that was not presented at trial.’” Cummings, 506 F.3d at 1223 (quoting
Schlup, 513 U.S. at 324). This new evidence “must be sufficient to ‘show that it is more
likely than not that no reasonable juror would have convicted the petitioner in the light of
- 36 -

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 37

the new evidence.’” Id. (quoting Schlup, 513 U.S. at 327); accord House, 547 U.S. at
539-40 (reaffirming the Schlup test after AEDPA). This standard is “demanding and
permits review only in the extraordinary case.” House, 547 U.S. at 538 (quotations
omitted).
3. Analysis
We deny COA on all three issues because reasonable jurists would not debate the
district court’s procedural ruling that (1) Mr. Frost failed to exhaust these claims by not
including them in his petition for discretionary review by the Kansas Supreme Court; and
(2) he has therefore procedurally defaulted these claims for purposes of federal habeas
because the time for petitioning the state court has expired. See O’Sullivan, 526 U.S. at
845, 848-49.
Mr. Frost argues that the district court nonetheless erred in determining that he had
not satisfied the fundamental miscarriage of justice exception to the anticipatory
procedural bar. We disagree. Reasonable jurists would not debate the district court’s
conclusion that Mr. Frost failed to make the “credible showing of actual innocence,” see
Perkins, 133 S. Ct. at 1931, required to circumvent the anticipatory procedural bar.
Although Mr. Frost is correct that the Court’s decisions do not require a “traverse” to
make this showing, they nevertheless require a petitioner to show that “it is more likely
than not that no reasonable juror would have found [him] guilty beyond a reasonable
doubt” in light of the new evidence. House, 547 U.S. at 536-37 (quoting Schlup, 513
U.S. at 327) (emphasis added).
- 37 -

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 38

Mr. Frost’s petition falls short of this demanding standard, which is significantly
higher than “that needed to establish prejudice” under Strickland. Schlup, 513 U.S. at
327. Simply maintaining one’s innocence, or even casting some doubt on witness
credibility, does not necessarily satisfy this standard. See Stafford v. Saffle, 34 F.3d 1557,
1562 (10th Cir. 1994) (new evidence was “only impeachment evidence, rather than
evidence of actual innocence” supporting a claim under Herrera v. Collins, 506 U.S. 390
(1993)); cf. Bousley v. United States, 523 U.S. 614, 623 (1998) (claim of actual innocence
must be based on new evidence suggesting “factual innocence, not mere legal
insufficiency”). Mr. Frost’s new evidence regarding the mother’s alleged threats to send
him back to prison and the victim’s past encopresis does not substantially undermine the
victim’s testimony of the abuse. Accordingly, we cannot agree with Mr. Frost that, in
light of this new evidence, it is “more likely than not” that “no reasonable juror” would
have found him guilty. See House, 547 U.S. at 536-37.
Because reasonable jurists would not debate the district court’s procedural rulings
on these issues, we deny COA on each of them.14

14

Given this conclusion, we decline to address whether reasonable jurists would
debate whether Mr. Frost’s petition states a “valid claim of the denial of a constitutional
right,” Slack, 529 U.S. at 484, with respect to these claims. Additionally, we need not
address Mr. Frost’s argument that cumulative error requires reversal because “we
undertake a cumulative-error analysis only if there are at least two errors.” Lott v.
Trammel, 705 F.3d 1167, 1223 (10th Cir. 2013) (quotations omitted).
- 38 -

Appellate Case: 13-3086

Document: 01019239881

IV.

Date Filed: 04/25/2014

Page: 39

CONCLUSION

For the foregoing reasons, we (1) affirm the district court’s denial of habeas relief
on Mr. Frost’s ineffective assistance claim regarding trial counsel’s failure to investigate
the child’s medical records; and (2) deny COA on Mr. Frost’s remaining claims.

- 39 -

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 40

13-3086, Frost v. Pryor
LUCERO, J., dissenting.
Although my colleagues in the majority state they would be inclined to grant
habeas relief had this case come to us on de novo review, they hold that they are
compelled to affirm under the highly deferential standard of review applicable to 28
U.S.C. § 2254 claims. (Majority Op. 31-32.) The majority notes that the question of
whether the KCOA reached an objectively unreasonable decision as to prejudice is a
close one. (Id. at 27.) I agree the question is close, but conclude upon thorough
consideration of the record that the KCOA’s treatment of the prejudice issue crossed the
line from incorrect to unreasonable. Therefore, I must respectfully dissent.
I agree with my colleagues that the trial attorney’s “failure in this case to obtain
the child’s medical records plainly fell below an objective standard of reasonableness.”
(Id. at 21 n.8.) Frost testified that he instructed his attorney to track down records that
would contradict important testimony from the victim’s mother, and an investigator
testified that she was able to obtain those records in about an hour. As my colleagues
note, it has long been clearly established that counsel “has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
unnecessary.” Strickland v. Washington, 466 U.S. 668, 691 (1984).
To prevail on an ineffective assistance claim, however, Frost must also show that
his attorney’s deficient performance caused prejudice. Id. To do so, he must establish “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 41

proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694. I recognize, of course,
the considerable deference due to the decision of the KCOA pursuant to the Antiterrorism
and Effective Death Penalty Act of 1996. See, e.g., Howell v. Trammell, 728 F.3d 1202,
1212-13 (10th Cir. 2013). But “[e]ven in the context of federal habeas, deference does
not imply abandonment or abdication of judicial review. Deference does not by
definition preclude relief.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Given the
centrality of the issue addressed by the medical records that counsel failed to obtain and
the potentially devastating effect those records would have had on the prosecution’s case,
I consider the KCOA’s conclusion that counsel’s failure was non-prejudicial to be
unreasonable.
Frost was convicted of aggravated indecent liberties with a child. As the KCOA
dissent highlighted, “one objective fact seemed to corroborate both the mother’s
testimony and that of the child: his problem of soiling his pants began only after he had
moved in with Frost and, thus, presumably in response to Frost’s criminal abuse.” Frost,
2009 WL 2371007, at *13 (emphasis added). It is no stretch to characterize the
correlation of the victim’s encopresis and his contact with Frost as the central theme of
the trial. The issue was discussed by both the prosecutor and the defense attorney in their
opening statements. Seven of the nine witnesses who appeared at trial provided
testimony on the victim’s encopresis, many of them at great length. And both attorneys
addressed the issue in their closing arguments. The prosecution told the jury that “[y]ou
-2-

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 42

should find it very, very interesting that the only time that these accidents started
happening, the only time they happened, was when the defendant had direct contact with
[the child] and when the defendant reinitiated contact with his mother that [the child] was
aware of.” As Judge Leben explained in dissent, however, “[t]he medical records would
have provided objective evidence that the child had had this same problem before any
acquaintance with Frost.” Id.
Moreover, the medical records would have provided an extremely valuable avenue
of impeachment. As the majority acknowledges, the KCOA’s decision completely failed
to address the impact of the records on the credibility of the child’s mother. (Majority
Op. 30.) She testified repeatedly and emphatically that the child had not suffered similar
accidents before the events relevant to the trial:
Q
Okay. Did [the child] ever start having these accidents before
you moved in with the defendant?
A
No.
Q
Did you – could you recall ever him having any accidents like
this? For example, after you told him that his biological father and he are
not going to have any contact did he ever –
A
No.
Q
Did he ever start having these accidents any of the other times
that you have had to uproot your family and move?
A
No.
Q
Did he ever have these accidents after your family unit split
up from six, two adults with four children, to two separate families of one
adult and two children?
A
No, he never did.
The KCOA unreasonably failed to consider the medical records’ effect on the
credibility of the mother. Combined with the court’s other errors—including those noted
-3-

Appellate Case: 13-3086

Document: 01019239881

Date Filed: 04/25/2014

Page: 43

by my colleagues, (id. at 31), the KCOA’s unreasonable analysis resulted in an
unreasonable conclusion.
I agree with the majority that the records had less potential to impeach the victim.
(Id. at 30-31.) However, Frost elicited significant testimony suggesting that a mother
might put “ideas in [the child’s] head” and that a child’s testimony could be “taint[ed]”
by hearing his mother’s conversations. A forensic psychiatrist testified that a child “may
want to please the mother. He may pick up things that the mother is saying and repeat
those.” Trial evidence suggested that the child had trouble verbalizing details of the
alleged abuse when his mother was not present. One witness noted that the victim
“turned and looked at his mother” when asked about the abuse and a therapist stated in
her report that the child “deferred to his mother for answers regarding abuse.” Thus,
evidence that the mother had lied on the stand may have reflected on the child’s
testimony and the prosecution’s entire case.
I respect my colleagues’ view on this difficult issue; the AEDPA “standard does
not require all reasonable jurists to agree that the state court was unreasonable.” House v.
Hatch, 527 F.3d 1010, 1019 (10th Cir. 2008). However, Frost presents more than simply
a strong case for retrial with the benefit of the previously undiscovered medical records.
He has shown that the majority decision of the KCOA was unreasonable. Frost was
denied protections guaranteed by the Constitution. I would remand to the district court
with directions to grant the writ.

-4-