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

                                                                       August 30, 2007
                      UNITED STATES CO URT O F APPEALS
                                                                     Elisabeth A. Shumaker
                                   TENTH CIRCUIT                         Clerk of Court



 M A RTIN Q U IN O N EZ-G A ITA N,

          Petitioner-A ppellant,
 v.                                                     No. 07-4092
                                                 (D.C. No. 2:03-CV-720-TC)
 G REG JA CQ U ER T; STA TE O F                           (D. Utah)
 U TA H ,

          Respondents-Appellees.



                         OR DER DENYING CERTIFICATE
                              OF APPEALABILITY


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      M artin Q uinonez-Gaitan, 1 a state prisoner proceeding pro se, requests a

certificate of appealability (“COA”) to appeal the district court’s dismissal of his

§ 2254 habeas petition. For substantially the same reasons set forth by the district

court, we D EN Y a COA and DISM ISS the appeal.




      1
        W e note a discrepancy in the record as to w hether Quinonez-Gaitan’s
m aternal surname is spelled “G aitan” or “Gaiton.” Because he spells his own
surname “Gaitan” in his pro se filings, we adopt that spelling.
                                           I

      Quinonez-Gaitan is serving four consecutive sentences of ten years to life

in prison following a jury conviction on four counts of child sodomy in violation

of Utah state law. His conviction was affirmed on direct appeal, and the Utah

Supreme Court denied certiorari. After exhausting these remedies, Quinonez-

Gaitan brought a § 2254 habeas petition asserting the following grounds for

collateral relief: (1) violation of his Sixth Amendment right to confrontation by

exclusion of evidence related to his victim’s prior sexual history under Utah R.

Evid. 412; (2) violation of his Sixth Amendment right to confrontation by

admission of unreliable hearsay testimony; (3) actual innocence; (4) ineffective

assistance of trial counsel in investigating his case; (5) ineffective assistance of

appellate counsel; (6) insufficiency of the evidence; and (7) cumulative error.

      The district court dismissed the last four of these claims as barred by the

Antiterrorism and Effective Death Penalty Act’s (“AEDPA ”) one-year statute of

limitations. As to his claim of actual innocence, the court held that the petition

merely asserted the same arguments raised before the trial court and that it did not

allege any new evidence not previously presented at trial. W ith regard to the

Confrontation Clause claims, the court held that the state trial court’s decisions to

exclude evidence of the victim’s prior sexual history and to admit hearsay

testimony provided by the victim were not contrary to, and did not involve an

unreasonable application of, clearly established federal law. See 28 U.S.C. §

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2254(d)(1). Quinonez-Gaitan now appeals from the district court’s dismissal of

his habeas action and seeks a COA from this court. 2

                                           II

      Construing his pro se pleadings liberally, see Haines v. Kerner, 

, 520 (1972), Quinonez-Gaitan advances three claims on appeal: (1) H e is

actually innocent; (2) His Sixth Amendment right to confrontation was violated

by the trial court’s refusal to allow him to cross-examine the victim about the

victim’s prior sexual history; and (3) His Sixth Amendment right to confrontation

was violated by the trial court’s admission of hearsay statements made by the

child victim to a detective investigating the sexual abuse.

      Q uinonez-G aitan’s first claim, that of actual innocence, is meritless. H e

raises no new evidence not previously presented at his trial. See Schlup v. Delo,

, 324 (1995) (“To be credible, [a claim of actual innocence] requires

petitioner to support his allegations of constitutional error with new reliable

evidence . . . that was not presented at trial.”).

      2
        AEDPA conditions a state petitioner’s right to appeal a denial of habeas
relief upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be issued
“only if the applicant has made a substantial showing of the denial of a
constitutional right.” 

Quinonez-Gaitan must show “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.
M cDaniel, 

, 484 (2000) (quotations omitted). Because the district
court did not rule on whether to grant a COA, we assume it was denied. 10th Cir.
R. 22.1(C). Accordingly, Quinonez-Gaitan may not appeal the district court’s
decision absent a grant of a COA by this court.

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      As to his Confrontation Clause claims, Quinonez-Gaitan must establish that

the state court adjudication

      (1) 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; or (2)
      resulted in a decision that was based on an unreasonable
      determination of the facts in light of the evidence presented in the
      State court proceeding.

28 U.S.C. § 2254(d). Quinonez-Gaitan contends that the trial court impermissibly

restricted the scope of his cross-examination of the victim. At trial, Quinonez-

Gaitan sought to elicit testimony from the child victim that the victim initially

identified Quinonez-Gaitan as his abuser only after his mother caught him

engaging in a sexual act with his stepbrother. Quinonez-Gaitan argued that this

testimony tended to establish that the victim had a motive to name Q uinonez-

Gaitan as his abuser, such as trying to avoid punishment from his mother. W e

reject this contention.

      One of the chief purposes of the Confrontation Clause is to secure the right

of a criminal defendant to cross-examine the witnesses offered against him.

Davis v. Alaska, 

, 316 (1974). “Cross-examination is the principal

means by which the believability of a witness and the truth of testimony are

tested.” 

to cross-examination, however, is not w ithout its bounds.

“[T]rial judges retain wide latitude insofar as the Confrontation Clause is

concerned to impose reasonable limits . . . based on concerns about, among other



                                         -4-
things, harassment, prejudice, confusion of the issues, the witness’ safety, or

interrogation that is repetitive or only marginally relevant.” Delaware v. Van

Arsdall, 

, 679 (1986). Thus the clause only “guarantees an

opportunity for effective cross-examination, not cross-examination that is

effective in whatever way, and to whatever extent, the defense might wish.”

Delaw are v. Fensterer, 

, 20 (1985) (per curiam) (emphasis in

original).

      Despite excluding references to the sexual act between the victim and his

stepbrother in this case, the trial court did allow Quinonez-Gaitan some latitude to

question the victim with regard to the circumstances under which he revealed his

accuser’s name. Indeed, even the prosecution conceded prior to trial that

Quinonez-Gaitan should have the opportunity to elaborate on the circumstances in

which the victim made the accusatory statement, including the fact that the victim

was under considerable stress from his mother at the time he identified Quinonez-

Gaitan as his abuser. As the Utah Court of Appeals noted:

      It was not necessary to expose the fact that [the victim] engaged in a
      sexual act with his stepbrother to effectively challenge the credibility
      of the accusations he made against Defendant. In fact, revealing that
      [the victim] engaged in a sexual act with his stepbrother sheds little
      or no light, by itself, on why [the victim] w ould be motivated to
      accuse Defendant, of all the people in the world, of sexually abusing
      him. In contrast, the perceived need to blurt out a name in the hope
      of terminating a parental browbeating sheds such light, wholly aside
      from exactly what prompted the browbeating.




                                         -5-
State v. Quinonez-Gaiton, 

, 144 (Utah Ct. App. 2002). W e cannot say

that the limitation placed on the scope of Quinonez-Gaitan’s cross-examination of

the victim was an unreasonable application of clearly established federal law.

M oreover, Quinonez-Gaitan has failed to cite any factually similar Supreme Court

case that would demonstrate the Utah courts decided his case in a manner

contrary to established federal law.

      In his second Confrontation Clause claim, Quinonez-Gaitan argues that the

trial court violated his constitutional rights by allowing a detective testifying at

his trial to quote allegedly unreliable hearsay statements made by the child victim

during an interview with the detective. This argument also lacks merit.

      The victim testified at trial and the defense had a full and effective

opportunity to cross-examine him, including regarding the admitted hearsay

statements. See California v. Green, 

, 158 (1970) (“[T]he

Confrontation Clause is not violated by admitting a declarant’s out-of-court

statements, as long as the declarant is testifying as a witness and subject to full

and effective cross-examination.”); Nelson v. O’Neil, 

, 627 (1971)

(“The Constitution . . . is violated only where the out-of-court hearsay statement

is that of a declarant who is unavailable at the trial for ‘full and effective’ cross-

examination.” (emphasis in original)). Because the trial court did not misapply

applicable Supreme Court precedent in admitting these statements, the decision to




                                          -6-
exclude this testimony was not contrary to, and did not involve, an unreasonable

application of clearly established federal law.

      Quinonez-Gaitan’s request for a COA is DENIED, and his appeal is

DISM ISSED.

                                       ENTERED FOR THE COURT




                                       Carlos F. Lucero
                                       Circuit Judge




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