Nos. 1:13-CV-00715-JAP and 1:10-CR-00056-JAP-1, D. Colo.
HARTZ, O'BRIEN, and PHILLIPS, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
L Hartz Circuit Judge
Adam Frost was convicted by a jury in the United States
District Court for the District of Colorado of raping A.W., a
17-year-old girl. There was no dispute that Defendant had sex
with A.W. at his home in the early morning and that A.W. left
the home immediately thereafter. The issue was consent.
we affirmed Defendant's conviction and 200-month
sentence, see United States v. Frost, 684 F.3d 963
(10th Cir. 2012), he filed an unsuccessful motion under 28
U.S.C. § 2255. He seeks a certificate of appealability
(COA) in this court to appeal the district court's denial
of his motion. See 28 U.S.C. § 2253(c)(1)(B)
(requiring COA to appeal denial of § 2255 motion). We
deny a COA and dismiss the appeal.
district court Defendant raised four
ineffective-assistance-of-counsel claims: (1) that trial
counsel was ineffective in not allowing him to testify in his
own defense; (2) that trial counsel was ineffective in
failing to object to the hearsay testimony of numerous
witnesses; (3) that trial counsel was ineffective in failing
to file a timely motion for a speedy trial; and (4) that
appellate counsel was ineffective in failing to argue issues
(1) and (3) on appeal. In this court Defendant pursues only a
portion of issue (2). He argues that trial counsel was
ineffective in failing to object to the hearsay testimony of
(1) two police officers regarding A.W.'s description of
the incident shortly after she left Defendant's house and
(2) a nurse practitioner regarding A.W.'s statements
about her loud resistance during the incident.
will issue "only if the applicant has made a substantial
showing of the denial of a constitutional right." 28
U.S.C. § 2253(c)(2). This standard requires "a
demonstration that . . . includes showing that reasonable
jurists could debate whether (or, for that matter, agree
that) 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 quotation
marks omitted). In other words, the applicant must show that
the district court's resolution of the constitutional
claim was either "debatable or wrong." Id.
establish a claim of ineffective assistance of counsel,
Defendant first has the burden of overcoming "a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance, "
Strickland v. Washington, 466 U.S. 668, 689 (1984),
by demonstrating that his counsel's performance
"fell below an objective standard of reasonableness,
" id. at 688. Second, Defendant must
demonstrate "that there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different."
Id. at 694. We need not address the first prong (we
can assume, without deciding, that the challenged hearsay was
inadmissible and that the failure to object was not part of a
reasoned strategy), because Defendant fails on the second
prong. The district court ruled that Defendant "failed
to demonstrate a reasonable probability that, but for
counsel's error, the result of the proceeding would have
been different, " Order Denying Mot. at 10, Aplt. App.,
Vol. II at 154, and we agree.
brief in this court argues that the evidence of what A.W.
told the police was important because without it, there would
have been "a big gap in the prosecution's
case." Aplt. Br. at 21. He explains, "While there
is certainly no requirement that the prosecution introduce
evidence that the alleged victim complained to the police
immediately after the incident, that is what juries look
for." Id. But the prosecution did not need
A.W.'s statement to the police to show that her claim of
rape was first made almost immediately after the incident.
A.W. testified that as soon as she left Defendant's home,
she called her sister on her cellphone to say that Defendant
had raped her. She also testified that after her sister
picked her up and took her home, she told her parents she had
been raped and her parents called the police. Her sister
testified to the same events. Further, the evidence showed
that the police were investigating the incident within an
hour of A.W.'s departure from Defendant's home, a
compelling indication that rape had been reported to the
police. Defendant does not now challenge police testimony
that they were responding to a call from A.W.'s mother.
A.W.'s statement to the nurse that she had loudly
resisted Defendant, Defendant's brief argues that juries
look for evidence that the victim resisted. And he contends
that without the nurse's testimony, the prosecution would
have lacked evidence regarding A.W.'s resistance, thereby
(once again) leaving "a big hole in the
prosecution's case." Aplt. Br. at 34. But the
statement to the nurse added little. A.W. testified at trial
to her unsuccessful resistance. And insofar as the statement
to the nurse would support an inference that the rape charge
was not a later ...