Barkell v. Crouse

actually understood the Maynard whether Godinez, of his waiver. See

consequences (“The n. 113 S.Ct. 2680

509 U.S. at 401 voluntary’ ‘knowing and

purpose of the ... to determine whether the

inquiry is actually does understand the

defendant consequences particu- of a

significance decision.”).

lar governing our re-

Although the standard deferential, highly it is

view of this claim mentally ill allowed a plain that OMahoma

n I represent himself. would hold man to “an decision was unreasonable this of, clearly established Federal

application 2254(d)(1).

law.” 28 U.S.C. BARKELL, P. Petitioner-

Gerald

Appellant, Warden, Crowley CROUSE,

Brent

County Facility; R.O. Correctional

Lampert, Director, Wyoming Depart Corrections; Crank, Patrick

ment of General,

Wyoming Attorney Respon

dents-Appellees.

No. 05-8045. Appeals,

United States Court of

Tenth Circuit.

Nov. know, they conspired up, you they They up to set me A. are there at Lake. Grand Q. got jail Oh, out of for the sole me released boys? one of the Grand Lake mafia purpose having this Brenda Butler set A. Yeah. up, my conspiracy me that is defense. Q. proposed What does [the witness] know Conspiracy among Court: or between about this case? whom? Well, slipping A. she knows that she was A. and some mafia [Named individuals] driving chemicals in me for months me guys- know, you crazy, charges put and these she Q., Mafia, what mafia? purpose on me that was the sole of it. [Tr. 64-66] Q. guys? Where are the mafia Intern, Christopher Humphrey, Student (Diane Director, Courselle, E. on the brief), Program, University Defender Aid Law, Laramie, Wyoming, College WY, Petitioner-Appellant. for Delicath, L. At- David Senior Assistant (Patrick General, Crank, torney Wyo- J. General, brief), ming Attorney on the WY, Cheyenne, Respondents-Appel- for lees. HARTZ, HOLLOWAY,

Before O’BRIEN, Judges. Circuit HARTZ, Judge. Circuit jury Gerald Barkell was convicted state court two counts of third-degree sexual assault. After initiat- conviction, ing appeal sought his to the trial court an evidentia- remand ry hearing regarding a claim of ineffective of counsel. The Su sexual acts on nights early assistance successive Lozano, July 1999. Diane preme request. attorney Court denied the Continu with the Wyoming Public of an Defender’s Of- ing appeal without benefit fice, appointed represent him. On evidentiary hearing, Mr. Barkell contend 26, 1999, McQueen, October Chris a con- that his trial counsel had been constitu ed defender, tract public replaced Ms. Lozano tionally preparation ineffective and represented Mr. Barkell at trial, trial on Wyo and conduct of the and that the January 24 jury 2000. The re- ming Supreme Court had denied him due guilty turned verdicts on two counts of process meaningful by deny and a appeal assault, third-degree sexual in violation of ing his motion for remand. On October 6-2-304(a)(ii). Wyo. Stat. Ann. 16, 2002, the court affirmed. Barkell v. sentenced to consecutive State, 1239, 1246(Wyo.2002). 55 P.3d years’ terms of five-to-seven imprisonment 14, 2004, January On Mr. Barkell sub- on each count. an application mitted for habeas relief un- Barkell, again represented Mr. by the § der 28 U.S.C. the United States Office, Wyoming Public Defender’s filed Wyoming, District Court for the District of timely appeal Wyoming Supreme raising the same issues raised before the Court on February June 2000. On Wyoming Supreme Court. The district 2001, he moved the court to remand the granted court denied relief a certifi- but case to the trial court for “an evidentiary (COA). appealability cate See 28 U.S.C. hearing to establish factual basis for a 2253(c)(1) COA). (requiring Mr. Barkell claim of ineffective assistance of trial coun- appeals juris- to court. now this We have performance sel based on the by deficient §§ diction 1291 and 2253. under U.S.C. ApltApp. the trial counsel.” Vol. I at 86. respect We affirm with to the claims of On March 1 the court denied the motion denial of process due without comment. It later affirmed Mr. Supreme Court and ineffective assistance Barkell’s convictions. during of counsel trial. But we reverse Mr. application Barkell’s under and remand for further on proceedings . (1) right claims violation of his under the attorney claim that his Sixth and Fourteenth Amendments to ef- in preparing ineffective for trial. Because (2) counsel, fective assistance and viola- (1) he allegations to the federal presented rights process tions of the to due that, true, court district if would entitle meaningful appeal Wyo- virtue of the (2) relief; him to he cannot be faulted for ming Supreme Court’s denial of his motion develop supporting failure to 20, 2005, for a limited remand. On April (3) court; in state the state court has application, district denied the not ruled on whether he be entitled stating that the Court’s to to prove allega- relief he were able his adjudication con- of his claims was neither tions, we do not defer to the state court’s to, trary application nor an unreasonable ruling ineffective-preparation on his claim of, clearly established federal law. him grant opportunity pur- and we that claim in court. sue federal district II. DISCUSSION I. BACKGROUND A. Denial of Remand charged

Mr. Barkell was with sexual that the appeal On Mr. Barkell contends 10-year-old stepdaughter, grant assault after his state court’s refusal a limited BV, forcing him of for his inef- engage develop accused her remand to the record Jordan, rights Gipson to due 376 F.3d claim violated fectiveness (10th Cir.2004) (internal quotation marks meaningful appeal. and a process omitted). and citations rejected this Wyoming Supreme Court contention, Mr. Barkell could holding that 2. Merits “rely allegations specula- on mere Under AEDPA’s standard of re justify a remand. 55 P.3d tion” to view, Mr. Barkell is not entitled to relief at 1246. on claim. Mr. Barkell has this identified prece

no Court United States of Review Standard dent at the time of the court’s clearly right that decision established his Death The Antiterrorism and Effective hearing. (AEDPA) Penalty provides Act of 1996 argues Mr. Barkell that “[w]hen the adjudicated a claim has been when provides appeal right, state the de- court, a federal court merits right appellate fendant has a to an record grant only ap- relief when will habeas adequate present that is his claims on plicant establishes the state court de- appeal.” Aplt. authority Br. at 22. As to, “contrary cision was or involved an Illinois, this proposition he cites v. Griffin of, application clearly unreasonable estab- 12, 585, 351 76 100 U.S. S.Ct. L.Ed. 891 law, by lished Federal as determined (1956); Draper Washington, v. 372 U.S. States,” Court of the United or Supreme 487, 774, (1963); 83 S.Ct. 9 L.Ed.2d 899 “was based on an unreasonable determina- 189, Mayer Chicago, v. 404 U.S. 92 light tion of the facts in of the evidence (1971). 410, S.Ct. 30 L.Ed.2d 372 Griffin presented in court proceeding.” the State requires held that the Constitution states (2). 2254(d)(1), 28 U.S.C. provide transcripts indigent de- appealing fendants their convictions. See clause, “contrary to” Under we 19, 351 at 76 Draper U.S. S.Ct. 585. held grant only if ar- relief the state court by that a state cannot circumvent Griffin opposite rives at a conclusion to that a allowing indigent an defendant free tran- .Supreme reached Court on a script only judge if the trial decides that question of or if the law appeal the defendant’s claims on are not differently decides a case than the [Su- 499-500, frivolous. 372 at See U.S. 83 preme] a materially Court has on set of Mayer S.Ct. 774. And held that an indi- indistinguishable facts. the “un- Under gent defendant is entitled to a tran- free clause, application” relief is script for of purposes appeal even he has provided only if the state court identifies only been convicted of a misdemeanor and governing legal principle the correct fined rather than incarcerated. See 404 Supreme from the Court’s decisions but Thus, 195-98, at 92 U.S. S.Ct. these unreasonably that applies principle indigent cases all deal with an defendant’s prisoner’s the facts of the case. Thus right transcript to obtain for a appeal may we simply not issue habeas writ judicial proceedings that would be avail- independent because we conclude in our can to pay able those who afford judgment that the relevant state-court one, not, here, attempt to add to the applied clearly decision established fed- proceedings by conducting record of those erroneously incorrectly. eral law supplemental proceedings. They do not Rather, application that must also be provide clearly precedent established argument. Mr. Barkell’s unreasonable.

689 addition, Cuyler preme Mr. Barkell cites v. Court of the United States.” 28 Sullivan, 335, 1708, 2254(d)(1); 64 Johnson, 446 U.S. 100 S.Ct. Penry U.S.C. see (1980); States v. 782, 795, 1910, L.Ed.2d 333 United 532 U.S. 121 S.Ct. 150 Cronic, 648, 2039, (2001) (state 466 U.S. S.Ct. 80 L.Ed.2d 9 court’s decision (1984); Strickland v. Wash- L.Ed.2d contrary unreasonable or to feder- 2052, ington, 466 U.S. S.Ct. 80 al law when there were “substantial” dif- (1984); Lucey, L.Ed.2d 674 and Evitts v. ferences between case before the state 83 L.Ed.2d 469 U.S. S.Ct. 821 court and the Court case relied (1985), proposition for the that he was defendant). Nevertheless, as we to the effective assistance of coun- entitled addressing shall see in Mr. Barkell’s alle- appeal. proposition sel on his From that gations pretrial ineffectiveness of coun- argues evidentiary hearing that an sel, the state court’s decision to refuse an necessary appellate pro- for his counsel to evidentiary hearing can affect our review adequate But representation. vide none of his other claims.

the cited addresses denial of an evi- cases dentiary hearing ap- the course of an B. Ineffective Assistance peal. Cuyler held a defendant with A making defendant an ineffective-assis- privately lawyer, retained like a defendant tance-of-counsel claim must show both that counsel, may raise a Sixth appointed performance objec- counsel’s “fell below Amendment claim of ineffective assistance. tive standard of reasonableness” and that 344-45, See 446 U.S. at 100 S.Ct. 1708. performance prejudiced “the deficient held that most claims of ineffective Cronic Strickland, 687-88, defense.” U.S. require proof per- assistance of deficient 104 S.Ct. 2052. Review of per- counsel’s only rarely do

formance and the sur- formance under prong first of the justify a rounding presump- circumstances highly Strickland test is deferential. tion of ineffectiveness. See 466 U.S. at “[Cjounsel strongly presumed is to have 658-62, 104 S.Ct. 2039. Strickland ad- adequate rendered assistance and made all “meaning dressed the of the constitutional significant decisions in of the exercise rea- assistance,” requirement of 466 effective professional judgment.” sonable Id. at 686, 2052, at 104 holding U.S. S.Ct. that to 690, deficient, 104 2052. To S.Ct. be prove an claim ineffectiveness the defen- performance must be “outside the wide perform- dant must show that counsel’s range professionally competent assis- objective ance an “fell below standard of pre- tance.” Id. Counsel’s decisions are reasonableness,” 688, 2052, id. at 104 S.Ct. represent strategy”; “sound trial sumed deficiency prejudiced and that the the de- performance counsel’s to be constitu- “[f]or fense, 687, see id. at 104 S.Ct. 2052. Ev- ineffective, tionally it must have been com- process guarantees itts held that due unreasonable, pletely merely wrong.” not effective assistance of counsel to defen- (10th Ward, 904, Boyd v. 179 F.3d 914 pursuing appeal dant a first of right. as Cir.1999) (internal quotation marks omit- 396, at These See U.S. S.Ct. 830. ted). prejudice prong, As for the the de- cases do not consider simply the issue now proba- fendant must establish a before Attractive Mr. Barkell’s le- us. as bility unprofessional that “but for counsel’s gal may be, contention he has not shown errors, proceeding the result of the Wyoming Supreme that the Court decision to, “contrary have been different.” United States v. or involved an unreason- (10th Cir.1992) of, Stevens, application clearly able established 978 F.2d omitted). (internal law, If quotation Federal determined marks as Su- strategy “defi- tered his cross-examination as a is show either defendant unable proposed hearing. of the More im- preju- or “sufficient result performance” cient attorney provide an does not dice,” portantly, fail. claim will the ineffectiveness Strickland, representation by failing pur- deficient at 104 S.Ct. 2052. 466 U.S. motion, regardless an unfounded sue a number of claims of raises Mr. Barkell possible advantages might tactical re- of his trial counsel. assistance ineffective Indeed, doing fault sult from so. we would analysis it convenient to purposes For attorney intentionally abusing an groups. two The first divide them into judicial process that manner. See Put- that rest on will be those group we address (11th Head, man v. 268 F.3d state trial court. The the record of the Cir.2001) (“Although attorney an has of claims for which group second consists duty ethical interest advance the of her relies, part, least Mr. Barkell client, that duty equally is limited evidence outside that record. Because the duty comply solemn with the law and all relate to con- group claims in the first (inter- professional standards of conduct.” trial, to them during duct we will refer quotation nal marks and omit- brackets remaining claims al- “Trial Errors.” The ted)). reject Accordingly, we this claim. pretrial preparation lege deficiencies Second, Mr. Barkell criticizes Mr. and will called “Pretrial Errors.” BV, McQueen’s cross-examination of stat- Alleged words, Trial Errors ing complex ques- that he “used tions, of reasoning and lines that confused argues Barkell that Mr. BV, only Aplt. not but court.” also the Br. him McQueen represent failed to ade at 35. The Court did legal trial and lacked “basic quately during specifically address Mr. Barkell’s con- knowledge concerning practice, rules McQueen’s tention that Mr. cross-examina- Aplt. Br. at 25. Mr. standards.” confusing, rejected tion of BV but McQueen complains first that Mr. general claim ineffective cross-examina- competency to testi question did not BV’s ground tion of BV on the that Mr. Barkell fy, on the matter arguing that any failings had to elucidate “fail[ed] would have “reinforced to BV seri [the] reasonably fall below the standard of a and, testimony” if she had ousness of the competent attorney, especially any that incompetent, been found would have “sub likely changed were to have the outcome of case.” stantially weakened] the state’s the trial.” 55 P.3d at 1244. The suggests Id. at He also that such a 34. Wyoming Supreme Court was not unrea- helped prepare have for would him sonably construing in Strickland determin- unpersuaded. trial. are Mr. Barkell We ing poorly that a few framed sentences did BV, any not cite evidence that who does not constitute representation. ineffective trial, incompe of was 11 at the time was Applying AEDPA’s deferential standard of And contention testify. tent to as for the review, reject we this claim of ineffective competency that a on BV’s assistance. of impressed have her the seriousness testimony provided practice complains her a useful Mr. Barkell also that Mr. trial, McQueen’s run cross-examining her at Mr. cross-examination of the state’s deficient, provides specula expert particularly no basis for his witness was inadvertently might changed eliciting tion that her testi a statement from BV mony stepparent that hearing, expert after such a nor does he children explain McQueen may likely have al- are more to be how Mr. households abused except suggest to that testimony regarding than other children. The Su- claim, rejected deciding specific this could preme Court falsehoods have been admit McQueen’s of ted to show that “when thought that Mr. cross-examination BV she trouble, expert simply was “relevant and useful was in she the state’s lied and blamed theory pursu- Aplt. the defense was someone else.” Br. which at 46. But be suggestion AEDPA defer- cause ing.” Id. at Under this made to ence, claim. support we affirm the denial of this Mr. Barkell’s ineffectiveness claim note, however, Court, in Wyoming Supreme that this claim is inti- argu We mately suggestion to Mr. Barkell’s claim of inef- ment based on this tied is unex 2254(b)(1)(A) (re hausted, § are not at see pretrial preparation. fective We 28 U.S.C. claim that point disposing this defi- lief is not available under 2254 unless investigation applicant of the case led Mr. “the has cient exhausted the remedies (1) McQueen State”); that questions to ask had available the courts of the Pi- (2) Connor, 270, 275-76, prejudicial consequences and to fail to card v. 404 U.S. (1971) (“[T]he questions ask that would have elicited S.Ct. 30 L.Ed.2d 438 helpful testimony. fairly presented federal claim must be Only the state courts.... if the state complains Mr. Barkell next that courts have had the opportunity first McQueen enough do to under did not hear the claim sought to be vindicated in a credibility. argues that Mr. mine BV’s He proceeding federal habeas does it make McQueen only called three witnesses speak sense the exhaustion of state (two testimony babysitters challenge her remedies.”). event, any inAnd failure to aunt) and her mother’s he evoked evidentiary argument make this creative only “minimally testimony” useful from range would not be “outside the wide concerning tendency them BV’s to lie. professionally competent assistance.” Aplt. argu Br. at 40. Mr. Barkell’s sole Strickland, 690, 104 466 U.S. at S.Ct. 2052. Wyoming Supreme Court ment before the alleged The state court’s decision that the regarding complain these witnesses was to presenting errors in these defense wit McQueen’s attempt of Mr. unsuccessful nesses did not constitute ineffective assis testimony specific introduce instances of contrary tance was not to or an unreason untruthfulness, BV’s and to surmise that application able of federal law. See 28 McQueen Wyo had Mr. understood the 2254(d). U.S.C. rules, ming evidentiary he would have up argues “to Mr. Barkell further been able come with alternative theory McQueen’s closing argument de of relevance certain instances of Mr. demonstrating “brought out a few in untruthfulness —such as ficient because particular testimony, to lie but failed BV’s motives about Mr. consistencies BV’s ApltApp. point many important Barkell.” II at 390. The out of the most Vol. Wyoming Supreme rejected Aplt. spe this ar ones.” Br. at 41. Mr. Barkell Court gument, noting McQueen cifically points misstating by that to BV’s Mr. testimony regarding eight able to elicit months the date that she and her BV’s untruthfulness, reputation family had moved in with Mr. Barkell. and no alleged Wyoming Supreme rejected prejudice had resulted from the The Court Barkell, argument, stating McQueen that Mr. shortcomings. See 55 P.3d at this us, identified some inconsistencies 1245. his brief to Mr. Barkell does had testimony and that the “few addi explain not what more the witnesses could BV’s by identified testimony, have done to undermine BV’s tional inconsistencies mining credibility. and unrelated to her He asserts that he ... are trivial at best allega McQueen the sexual abuse informed Mr. trial that the elements of before not to list for counseling, tions. Counsel’s decision but Mr. BV had been inconsistency jury every possible McQueen attempted speak never be said to be inef testimony cannot her counselors. He also asserts that he Barkell, 55 P.3d at fective assistance.” specifically requested McQueen that Mr. e pay attention. agree. 1244. Jurors W interview and call at trial BV’s school likely to They highly are observe teacher, fourth-grade counselor and whose in a wit significant more inconsistencies testimony would impeached have BV’s they may testimony, and well be ness’s credibility, yet McQueen Mr. failed to do importance of an persuaded more McQueen so. He states Mr. should they they think that have inconsistency if counseling have known that records would discovery rather made the on their own likely regarding contain information BV’s importuning than on of an advocate. lie, alleged tendency to as well as informa- Mullin, 383 F.3d Cannon Cf. regarding feelings tion “her towards and (10th Cir.2004) (“It always not ... Barkell,” possible against motives Mr. every strategy exploit the best Br. at Aplt. and that under these cir- inconsistency in the statements of a wit attorney cumstances “a reasonable ness, by opposing called even witness family have realized that and school coun- counsel.”). rejection The state court’s seling involving alleged victim could'be contrary claim to or an un this determining resource in al- valuable application of federal law. See leged personality, propensity victim’s and 2254(d). 28 U.S.C. lie,” id. motives to at 28-29. He contends finally Mr. Barkell claims that McQueen that Mr. had obtained this McQueen’s representation was ineffective evidence, it changed “would have the out- rudimentary “because he lacked knowl come at trial.” Id. at 28. edge procedures legal princi of trial rejected Court ples.” Aplt. Br. at 43. The ground this on the that “a defendant claim denied the various claims Court does not meet his burden to show his of his made Mr. Barkell this section performance counsel’s was deficient alleged brief because the errors did not prejudice. speculation equivocal result in See 55 P.3d mere inferences . agree potential testimony We as to witnesses and 1244-45. that could been called at trial.” Bar- Alleged Pretrial Errors kell, 55 P.3d at 1243. The court faulted Mr. Barkell making assumption “the Mr. Barkell two claims of ineffec- makes assistance, that, McQueen’s counseling, because BV was in there tive related to Mr. (1) preparation may counseling for trial: failure to investi- be evidence in her records (2) gate expert failure to consult an support theory his defense that she was witness. address each in turn. We dishonest or either motivated fabricate assault,” allegations sexual add- Investigate

a. Failure to “[bjecause ed that Barkell does not identi- fy any specific testimony or evidence that Mr. Barkell claims that Mr. offered, pre- the counselors would have the McQueen investigate adequately failed to sumption trial counsel rendered ade- counseling experiences, BV’s school and quate-assistance which would have led to evidence under- and exercised reasonable

693 (2) dence in state court and judgment is not rebutted.” the professional court ruled on whether Mr. Barkell’s alle- Id. true, gations, if would establish an ineffec- evi- Barkell has identified such But Mr. tive-assistance claim. copy a for us. He has submitted dence a limited re- motion for his state-court applicants Habeas who have not mand, attachments. which included several evidentiary in' received (unnotarized) from self-styled A “affidavit” may court be entitled to an that he had discussed Mr. Barkell stated federal court. AEDPA states: McQueen counseling history with Mr. BV’s If the applicant develop has failed to the him to Sue Maxt- and had asked interview factual basis of a claim in State counselor, Hartman, ed, and Mrs. BV’s proceedings, the court shall not hold teacher, that Mr. fourth-grade BV’s but evidentiary hearing on the claim unless McQueen tried to obtain informa- had not applicant the that— shows regarding counseling tion the or otherwise (A) the claim relies on— complied requests. with his (I) law, a new rule of constitutional sister, attached an affidavit from his also made retroactive to cases on collateral Allred, Lynn who attended several had Court, by Supreme review McQueen, in pretrial meetings with Mr. unavailable; previously or McQueen that “Mr. which she asserted many investigate failed to talk to or (ii) predicate a factual that could possible presented witnesses that we had previously not have been discovered him,” including Ms. Maxted and BV’s through diligence; the exercise of due McQueen stated that Mr. teachers. She get many “failed to of the documents (B) underlying the facts claim in- problems, of the victim’s reports past would be sufficient to establish family from ... their cluding reports convincing clear and evidence that but previous counselor and from the reports error, no for constitutional safe houses and foster homes which the found appli- factfinder I ApltApp.

victim was in.” Vol. at 144. guilty underlying cant of the offense. addition, copies counseling In of BV’s 2254(e)(2). § open- “Under the U.S.C. records were attached to the motion. 2254(e)(2), ing clause of failure to de- records, counseling These which relate to velop the factual of a claim is not basis one grades sessions when BV was is a lack of dili- established unless there four, through refer several times to BV’s fault, gence, greater or some attributable tendency to lie. The from first records prisoner’s or the counsel.” prisoner ly- grade contain three references to her 420, 432, 120 Taylor, 529 U.S. Williams second, con- ing, grade and records from (2000). “If S.Ct. L.Ed.2d tain two such references. develop prisoner did not fail court, claim in light support for Mr. Barkell’s factual basis State '2254(e)(2) claim, applicable must ask is not and federal deficient-investigation we and, analyze support proceed we can consider this habeas court should whether so, evidentiary hearing appro- how that affects our standard of whether an pre-AEDPA under stan- Wyoming priate required review of the decision Mullin, F.3d The answer to these dards.” Cannon v. Court. Cir.2004) (internal (1) (10th Bar- brackets questions depends on whether Mr. omitted). Thus, marks adequate present quotation kell made efforts to evi- 694 Appellant rely

threshold issue is whether Barkell ex- cannot allega- on mere diligence in state court to ercised sufficient and speculation purpose tions for the of 2254(e)(2). §of avoid the strictures We obtaining a develop remand to a record believe that he did. on his claims of ineffective assistance. previously We denied Barkell’s Motion on Our conclusion based our and, for a Partial appel- Remand in his reading Wyoming of law before Mr. Bar brief, provides late no additional facts jurisdictions In most appeal. kell’s claims or argument justifying a remand. brought of ineffective assistance are postconviction proceedings. collateral See 55 P.3d 1245-46. States, 500,

Massaro v. 538 U.S. United If the state court’s denial of an evi- 504, 508, 1690, 123 S.Ct. 155 L.Ed.2d 714 dentiary hearing consequence was the (2003) (agreeing with most federal circuits Mr. Barkell’s to comply “failure” “growing majority and a of state courts” requirements law, established of state ineffectiveness claims need not be then under AEDPA he is not entitled to appeal raised on direct and that “in most such a in federal court and we [postconviction proceedings cases collateral grant § deference under 2254 to the preferable appeal to direct are] decid state court’s decision on the merits. See assistance.”). ing claims of ineffective Evi 2254(d) § (deferring U.S.C. to state gathered dence of can ineffectiveness law); rulings court’s see also trial, after or even after exhaustion of di 2254(e)(1) (“[A] § determination of a fac- appeals, presented rect to the court tual issue made a court State shall be law, however, for consideration. correct.”). presumed to be comply- Not allows criminal defendants to raise ineffec ing requirements with established would only tiveness claims on appeal. direct See ordinarily necessary constitute the fault State, 679, Calene v. 846 P.2d (Wyo. impose the strict limitations of 1993). supplement To the trial record 2254(e)(2) opportunity for a ineffectiveness, with evidence of the defen evidentiary federal hearing. supreme dant must move the state But if Mr. Barkell complied with (the court) appellate state’s sole for a limit reasonably what appeared to be the estab ed remand. See id. at 692. lished requirements, state-law he cannot described, previously

As Mr. Bar be said to have “failed to develop motion, kell accompa submitted such a claim,” factual basis [his] id. supporting nied several attachments. 2254(e)(2), even his reasonable inter The Court denied the pretation of state law turned out to be motion for limited remand without expla Williams, wrong, see 529 U.S. at merits, nation. In its decision on the (such S.Ct. 1479 a failure “is not estab however, explained the court as follows its lished unless there diligence, is a lack of rejection of his claim that improp he was fault”); greater some Osborn v. Shil cf. erly denied a remand: (10th Cir.1988) linger, 861 F.2d (“[I]f

[Mr.] Barkell claims that he was entitled petitioner reasonably could not to remand for an hearing on have been aware that procedural rule his claims of ineffective assistance of prevent addressing court from counsel, State, citing claim, Calene v. 846 P.2d the merits of his his violation of that (Wyo.1993). case, review.”). present how- rule cannot bar federal In our ever, view, is more similar to Griswold v. Mr. Barkell’s complied efforts with a State, incorrect) (Wyo.1999). 994 P.2d (although 930-31 apparently Wyo- sufficiently stated documented of and of the mandates interpretation appeal. issue before the trial court before his show real law it stood ming as Wyoming Supreme question put requirement can to the additional do not be We As Wyoming law. of providing evidentiary hearing.”). construction an Court’s of states, the last that court has Wyoming the dissent remanded Court request for Mr. word on whether in that evidentiary hearing for an case. the re- evidentiary hearing satisfied an predicated Id. at 694. The remand was of law at the time of quirements solely complaint by appel- on “the letter of But request. on that whether ruling its the trial court.” Id. at lant addressed to 2254(e)(2), § purposes of for convicted of appellant 684. The had been evidentiary obtaining in an was at an charges relating to theft of automobile. fault Wyoming law depends not on how hearing painting Id. at 681. He admitted the ve- but, rath- appeal in his own was construed knowing hicle denied that it was sto- but er, reasonably appeared law what len, saying simply that he was hired to do request for time he filed his be at the His letter as- painting. Id. words, it is evidentiary hearing. other attorney informed his serted that he had (because clear testify could to his lack of witnesses who so) request that his for said Court exculpatory other mat- knowledge and inadequate, but evidentiary hearing was ters. Id. The court concluded: triggers denial of inadequacy whether this determine that We do not assume or under evidentiary a federal exist or that a witnesses did valuable 2254(e)(2) he was depends on whether investigation preparation failure worse) (or an inad- submitting in negligent testimony valuable adversely denied we do not request. point On this equate find the contentions the defendant. We Indeed, a Wyoming courts. defer to the record now sufficiently substantial no occasion to de- court would have state that a should be held. presented has satis- the defendant termine whether hearing, counsel can tes- At the defense 2254(e)(2) for a requirements fied the can additional tify provide and Calene so we have no evidentiary hearing, federal regard- any substantiation matter to which adjudication on the of non-called wit- ing the usefulness defer. we could upon which the nesses as evidence then, Wyo- Turning, to the content re- may be rendered court’s decision for an when Mr. Barkell moved ming law per- of counsel garding the standard evidentiary hearing, requirements formance. had been set forth obtaining remand dissent, Contrary to the we see Id. at 693. Supreme Court decision suggest nothing opinion in the Calene held that a defen- That decision Calene. giv- Wyoming Supreme Court was that the evidentiary hearing to de- seeking an dant break,” “a Dissent at ing Calene must submit a mo- velop a factual record stringent requirements holding him to less “appropriately is for remand that tion appellants on later imposed than would be defining and by contentions supported evidentiary hearing. seeking an any claim de- supporting ineffectiveness reasonably be- Mr. Barkell could may appropriate, supported, tail and request for an that his lieved to establish substan- by affidavit sufficient by mak- standard Calene, hearing met the Calene 692; P.2d at see id. tiality.” pre- his counsel’s (“[I]t allegations of ing specific necessary for serious at 687 leads to follow substantial to be trial failures allegations of ineffectiveness specific resulting prejudice. from client and We denied his Motion for Partial Re allegations may mand, Mr. Barkell’s have been finding that Griswold failed to unsworn, clearly Mr. Calene’s provide but were. a substantial factual basis for his why Moreover, Uncertain the claim. brief, appellate his evidentiary him an hearing, Court denied provides Griswold no facts or arguments Mr. we believe that Barkell did not exhibit in support of this assertion. We have Williams, required consistently the fault 529 U.S. at held that we will not consid 432, 1479, bring him under unsupported by S.Ct. er claims cogent argu 2254(e)(2) obtaining State, for not an evidentia- authority. ment and Madrid v. ry hearing 1340, 1347 court. It is useful to 910 P.2d (Wyo.1996). contrast this case with two in which the 994 P.2d at 930-31. This discussion would showing inadequate. defendant’s was held given guidance Barkell no re- First, Calene, 846 P.2d at cites Leach garding what missing plead- from his State, (Wyo.1992), v. pro- 836 P.2d 336 ings that would necessary him entitle viding example showing of a that did to an evidentiary hearing Wyoming under not support hearing. remand for a In that Accordingly, law. we hold that Mr. Bar- support hearing case the for a in the mo- kell was not at fault in failing to obtain an only tion for remand consisted of the fol- evidentiary hearing court, in state lowing: 2254(e)(2) does not apply. Appellant’s 2. It is contention that his We must now decide whether Mr. Bar- ineffective, at trial counsel kell is evidentiary entitled to an he desires that the issue of ineffec- pre-AEDPA standard, under the which tiveness of counsel be raised on this provides that the habeas applicant is enti- appeal. evidentiary tled to an hearing in federal objection 3. That there is no record of (1) district “if court the facts were not to ineffective at assistance the trial adequately court, developed the state so level, court present nor does the rec- long as that failure was not attributable to necessary ord contain facts to devel- (2) petitioner, ... and allegations, his op appellant’s claim. if true and not contravened the existing record, factual would entitle him to Leach, habeas 836 P.2d at 341. Mr. Barkell’s Cannon, (inter- relief.” 383 F.3d at 1175 Second, showing stronger. is far on Mr. brackets, nal marks, quotation and cita- appeal Wyoming court stated omitted). tions respect With to the first that his case was more similar to Griswold requirement, already we have State, decided that 994 P.2d (Wyo.1999), 930-31 the lack of a evidentiary state-court hear- than to Calene. See P.3d ing should not be attributed to Mr. Bar- 1245-46. But in Griswold the proceeded kell. He in a manner that was only Court’s discussion regarding Wyoming precedent. under request for an hearing was Hence, Mr. Barkell is entitled to an evi- following: dentiary federal district court if State, Relying on Calene v. 846 P.2d 679 true, allegations, would entitle him to (Wyo.1993), argues only Griswold that Cannon, habeas relief. See 383 F.3d at “appellate filing counsel is a Motion for Partial Remand and Affidavit in Support purpose Thereof for the of having the providing matter, Before our view on the matter remanded to the District Court we must first consider Wyo- whether the for the taking of ming Supreme this issue.” already Court has ad- may in the suggests counseling, issue. dissent there be evidence that dressed counseling support Bar- records his defense rejected Mr. theory she was either dishonest ground on the kell’s motion remand allegation motivated to fabricate futile evidentiary hearing would be that an assault,” id. at sexual and then went fail claim would his ineffectiveness because say presumption on to that the of effective allega- prove if he were able to even had not “[b]e- assistance been rebutted in his motion. If that had been tions not identify any specific cause Barkell does AEDPA rejection, court’s basis testimony or evidence that the counsellors us to the court’s require would to defer offered,” id. would These statements underlying of federal the determination the were made without consideration of the determina- namely, constitutional law— contained in mo- materials Mr. Barkell’s did not allegations that Mr. Barkell’s tion remand of coun- (including copies tion for of a claim of ineffective assistance that seling repeatedly stating records BV Ward, F.3d Hammon counsel. See v. lied), because motion had been had the (10th Cir.2006). is, if the That They suggest, that a dif- though, denied. reasonably construed fed- Wyoming court at ferent result —or least further consider- in Mr. allegations to be that the eral law analysis required and ation —would a remand failed to state Barkell’s motion merits in dispose of the if Mr. Barkell had counsel, we claim of ineffectiveness in “specific fact identified ... evidence” deny accept ruling need that would counseling showing that BV the records hearing an fed- evidentiary Mr. Barkell ... Consequently, “was dishonest.” Id. court, could not hearing because the eral Wyoming the court could not conclude that him on the merits. See id. benefit allegations Mr. Barkell’s motion for the view, however, not the In our that was to state remand failed a claim of ineffective ' for the Court’s basis go unless the court were to assistance First, the rejection of motion to remand. beyond analysis its earlier and determine say decision that it is that court’s does not counseling dis- reporting that records BV’s it be fu rejecting remand because would honesty support would the ineffective- tile; justi a says it that cannot be opinion That the con- ness claim. allegations speculation.” fied “mere analysis strongly implies no such tained implication 55 P.3d 1246. The rejection of remand that its the motion to are required. is that affidavits form, than the was based on rather substance, allegations in the motion. importantly, Wyoming court’s More Mr. Barkell’s merits of discussion Wyo- therefore conclude that We (based record, claim on the ineffectiveness not decided ming Supreme Court has allegations and without reference to the would allegations whether Mr. Barkell’s remand) sug- in his motion for evidence him to relief them. proved entitle analysis its need to be gests denying ineffectiveness Mr. Barkell’s if it were the truth of claim, deciding revised to assume a was court motion, yet allegations the remand from us. issue what is before different under- the court never hinted that it was Accordingly, we have no decision taking analysis. such revised When to when we the sufficien- to defer consider rejected on of ineffec- cy allegations the merits Mr. Mr. Barkell’s counsel in situation pretrial preparation. claim of ineffective assistance of tive Our consider- it makes to that of federal court preparation, noted that similar “[h]e that, claim a habeas after a federal-court assumption ing because BV evidentiary hearing provides material vestigation facts helpful would have been not considered the state court. See defense. We therefore conclude that Mr. Mullin, Bryan v. F.3d 1215-16 Barkell is entitled an evidentiary hear- (10th Cir.2003) banc) (en & n. 7 (declining ing court, in federal district at which the 2254(d)’s apply deferential standard court can ascertain whether Mr. Barkell is of review when the state court had denied prove able to necessary deficiencies ineffectiveness prejudice. claims and federal district court had con- Expert b. Failure to Consult one); Gibson, Mayes

ducted 210 F.3d (10th Cir.2000) (reviewing addi- Mr. Barkell also complains about tional proffered by habeas appli- McQueen’s failure to consult with or cant without deference to the state court’s call at trial expert witness on child findings factual when state court denied an psychiatry. argues He this failure evidentiary hearing). McQueen unreasonable because Mr. had the resources call expert to wit Conducting independent our ness, it is common for prosecution the to analysis of Mr. allegations, we expert call an witness in child-sex-abuse believe that he has adequately alleged defi cases, and attorney reasonable defense pretrial cient investigation. duty “The expert would use an prepare. He investigate derives from counsel’s basic claims that his prejudiced defense was by function ... to make the adversarial test (1) this failure because consultation with ing process particular work in the case.” expert would have aided Mr. Ward, Williamson 110 F.3d McQueen’s cross-examination of the state’s (10th (internal Cir.1997) quotation marks BV, (2) expert and and expert a defense omitted). a duty “[C]ounsel has to make “could explained jury have how chil investigations or to make a rea testimony evaluated, dren’s should be sonable decision that particular makes in well as shed light problems on with the (internal vestigations unnecessary.” Id. testimony of the expert.” state’s Aplt. Br. omitted). quotation marks In light of the at 32. prosecution’s complete reliance on the vic Lozano, An affidavit from Ms. public the veracity tim’s and the given by leads Mr. originally defender assigned to Mr. Bar- sister, Barkell and his it would have been case, kell’s submitted with the state-court McQueen unreasonable for Mr. not in motion for a supports limited remand his vestigate whether records and witnesses claim that it was unreasonable for Mr. regarding counseling BV’s and school ex McQueen not to consult an expert. The periences suggest could her propensity to states, affidavit practice “[I]t standard lie or her motive to harm Mr. Barkell. See to enlist the use expert of an in child sex Beard, Rompilla v. 545 U.S. 125 S.Ct. cases, abuse help prepare whether to 2456, 2460, 2467, 162 (2005) (it L.Ed.2d 360 cross examination or testify as a defense was unreasonable for counsel not to read ApltApp. witness.” at 138-39. case file he knew prosecution the would rely on at sentencing, though even As for a showing prejudice, although defendant and family suggested had the independent-expert report submitted existed). mitigating that no Mr. Barkell with the remand motion content of the records- submitted Mr. lists factors that support BV’s credibili- Barkell with his motion for limited ty, remand it also lists five question factors that indicates that the any results of in- credibility. addition, such her report ineffective- ... of Mr. Barkell’s other have denial “expert could states claims, and REMAND to the district body of knowl- ness jury about informed evidentiary hearing. alle- court to hold an children’s false edge and research Id. at 216. On abuse.” of sexual gations “I hand, stated: report "also other O’BRIEN, J., concurring part the state’s anything disagree not

do dissenting part. Id. expert said.” join majority opinion I pleased am that it convinces us last statement This 2-Alleged Part Pretrial Errors. except for to call to fail ineffective assistance I holding, re- From that discussion Ultimately, her expert as a witness. spectfully dissent. have corroborated simply testimony style majority opin- of the The masterful and would expert, government’s of the what, me, is the core issue ion obscures impact prejudicial had the added errors, relating pretrial to the claimed emanating from the defense. AEDPA deference. in cross-exam- to assist But consultation sug- report matter. The Congress another intended ination is There is no doubt McQueen have scored could gests that AEDPA to advance these doctrines on cross-examination points [comity, finality and Fed- federalism]. some And, impor- more must in- expert. corpus principles prosecution’s eral habeas likely have consultation would tantly, prior shape the historic and still form whether chil- asking respect him from and com- prevented vital relation of mutual likely families are more stepparent existing in between the purpose dren mon children, ques- a keep- than other In be abused the federal courts. States and affirmative damaging a have been tion that elicited delicate balance we ing this are uncertain in- Although scope we limit the of federal answer. careful to suf- adjudications would itself be prejudice this into state criminal whether trusion Barkell’s ineffective- in to sustain Mr. the interest safeguard ficient and to States’ claim, resulting from collat- prejudice the criminal and integrity ness of their the any See, have added to v. lapse may e.g., well Coleman proceedings. this eral McQueen’s 722, 726, from Mr. resulting U.S. S.Ct. prejudice Thompson, 501 (“This (1991) BV’s school is a investigate failure to 115 L.Ed.2d 640 Mr. Barkell is counseling experience. It concerns about federalism. case in the to include this matter courts owe the thus entitled federal respect procedural in federal district rules evidentiary hearing and the States’ States hearing pris- court will claims of state reviewing court. After when corpus”); the failure to decide whether habeas equipped to in federal oners 467, 493, constitutionally Zant, inef- expert McCleskey consult an v. 499 U.S. (1991) with the in itself or combination 113 L.Ed.2d fective 111 S.Ct. (“[T]he investigate. procedural default alleged failure doctrines of designed are of the writ both

and abuse III. CONCLUSION that re- injury State to lessen a state through reexamination sults court’s denial AFFIRM the district

We that the State did ground á conviction on Barkell’s failure-to-remand of relief on Mr. at a to address opportunity have the ineffec- not Mr. Barkell’s claim and on those of time; both doc- appropriate attorney’s prior, to his tiveness claims related inter- to vindicate State’s trines seek REVERSE at trial. We performance finality judg- purpose obtaining est in the of its criminal a remand to devel- ments”)- op a record his claims of ineffective previously assistance. denied Bar- We 420, 436, Taylor, v. Williams U.S. and, kell’s for a Partial Remand Motion 1479, 146 (2000) (empha S.Ct. L.Ed.2d 435 brief, provides his appellate he no added). sis argument additional facts or justifying a Supreme Court The twice ad- remand. Id. dressed Barkell’s claims of ineffective as- Id. at 1245-46. request sistance of counsel and his on that It issue. considered and The opinion Court’s request denied for an hear- crystal words, is clear. Bar- AEDPA’s ing unpublished in an order. Later it “develop kell failed to the factual basis for (as the issue as his revisited well other his claim.”1 That is a merits decision arguments) a formal opinion. Barkell v. entitled to AEDPA But in- deference.2 State, (Wyo.2002). 55 P.3d 1239 It con- deferring stead of Su- request cluded his for a was not preme majority say- Court the focus shifts adequately supported, saying: “Thus, ing, the threshold issue is whether issue,

In his second diligence Barkell claims that Barkell exercised sufficient he was entitled to remand for an eviden- state court avoid the strictures of 2254(e)(2).”3 tiary hearing 693-94.) on his claims of (Majority ineffective atOp. counsel, assistance of citing Calene v. Since he “identified such for us”4 State, 693) (Wyo.1993). (Majority 846 P.2d 679 atOp. thereby qualifies The case, present however, more similar for a hearing. But Barkell has identified State, Griswold 994 P.2d 930-31 no us already evidence for that he had (Wyo.1999). Appellant rely cannot on identified for the Wyoming Supreme allegations speculation mere Court.5 majority simply substitutes applicant develop ing 1. "If the has failed to evidence that but for constitutional er- ror, pro- factual basis of a State no claim in court reasonable factfinder would have ceedings, applicant guilty underlying found [federal the court the of the district] shall not claim, evidentiary hearing offense. hold an on the 2254(e)(2). 2254(e)(2) § 28 U.S.C. (emphasis unless....” U.S.C. added). 4. The evidence Barkell has for us” "identified very Wyoming is the same evidence the Su- 2254(d) 2. 28 U.S.C. preme Court to be held insufficient. applicant 3. develop If the to has failed the regard 5. distinctly In that this case is different pro- factual of a State basis claim in court from Williams. state Williams no ceedings, the court shall not hold an eviden- upon adequacy request had ruled the aof tiary hearing on appli- the claim unless the evidentiary hearing an underlying because the cant shows that— issue was raised first in federal court where (A) the claim relies on— Williams claimed the Commonwealth Vir- (i) law, a new rule of constitutional made ginia plea agreement failed disclose a by retroactive cases on review collateral exchange a co-defendant offered in for in- Court, Supreme previously the Williams, that was un- criminating testimony against him. available; or 529 U.S. at 120 S.Ct. 1479. There was (ii) predicate a factual that could not no occasion to consider whether deference previously through have been discovered was due state to a about the determination diligence; the exercise of due adequacy application and applica- no of his since (B) underlying the facts the claim would be tion was made to a state The court. issue is here, squarely presented Wyoming sufficient establish clear and convinc- where the Wyo- that of new to the district court. He sufficiency for the view of its prosecution does claim the Conveniently that “hid the Court. ming Supreme or pre- ball” some other happenstance7 the any need to demonstrate how obviates finding vented him from presenting and contrary to or an decision is Wyoming relevant But majority puts material. the application of United States unreasonable diligence new Indeed, twist on the test. at- precedent. no Supreme Court tempt is made do so. says It diligence Barkell exercised presenting request because majority has miscast I think (the procedures he followed established Wyo- It confesses the obvious—the issue. decision8) requested Calene when he final Supreme Court is the arbiter ming evidentiary hearing. Wyoming But it ac- Wyoming procedure law and —and Court, Supreme relying on of its sub- one knowledges Wyoming that under law Bar- ' cases, sequent held otherwise. Under insufficient was petition “because kell’s law Wyoming petition case (Ma- so.” Supreme said Court he insufficient because failed to make 695.) then, citing at But jority Op. substantial factual showing required Williams, says here is it the issue not the hearing.9 obtain such a but sufficiency application, diligence it. It errs because in this presenting clearly majority thinks he made diligence the issue of is subsumed case adequate showing, but rather than face Diligence sufficiency inquiry.6 (with re- require- issue head-on the attendant discovered, all quires demonstrating available evidence ment of deci- presented to the state tri- contrary marshaled to or sion was an unreasonable at 1479. Barkell application Supreme Id 120 S.Ct. of United bunal. States Wyoming Supreme precedent) disguises it presented Court Court substantive disagreement diligence á It thought inquiry.10 evidence as he sufficient such fair, then, petition diligence of his no is to ask how should be support offered Williams, stance.” S.Ct. Court considered decided the U.S. 1479. issue. question whether The ultimate is this Court State, 1993). (Wyo. v. 846 P.2d 679 Calene rights merely enforcing federally derived usurping prerogatives. state If this deci- overturned, panel Wyoming Supreme specifically to be 9. The Court sion is should claim, clearly explain apply Calene how the refused-to to Barkell’s sufficiency con contrary holding to or the issue of Court’s decision is an unrea- application trolled federal law as deter- its later decision in Griswold sonable State, 1999). (Wyo. by Supreme 55 the States Court. P.2d 920 mined United 994 P.3d at 1245. saying comity prison- 6. "Yet is not served a develop 'has failed to the factual basis a er op- rightful 10. For courts to have their state develop he to claim’ where was unable his rights, portunity adjudicate to federal the despite diligent claim in state court effort.” prisoner diligent developing the must be in Williams, 437, 120 529 at S.Ct. 1479 U.S. presenting, possible, all claims record and added). (emphasis prisoner If fails to of constitutional error. the so, contributing the do herself to himself or say person duty implies "To a has failed in a adjudication in state absence of a full fair steps necessary take to it. he did not the fulfill 2254(e)(2) evidentiary prohibits court. is, consequence, He as a at fault and bears hearing develop the in fed- to relevant claims sense, responsibility for failure. In this a the court, stringent eral unless the statute's other diligent person at is not when his efforts fault requirements prejudice] are met. [cause thwarted, example, perform an to act are Williams, by happen- U.S. at S.Ct. 1479. by the conduct another or case. in presented independent measured in this Barkell court concludes its judg- (he his has offered supporting ment that the relevant state-court decision new), nothing question procedural so the is applied clearly established federal law er- compliance. conceding While that “[n]ot roneously Rather, or incorrectly. that ap- complying requirements established unreasonable.”).11 plication must also be I ordinarily constitute the fault neces- prepared say am not Wyoming the Su- sary the impose strict limitations of preme Court was let wrong, alone unrea- 2254(e)(2) opportunity the for a fed- sonable. evidentiary hearing,” majority eral concludes, view, our Mr. Barkell’s majority efforts, says “[i]n The (al- with a complied efforts reasonable unsuccessful, while were under incorrect) though interpreta- apparently existing implies standards. It thus Wyoming tion of the mandates of law as it Wyoming Supreme changed Court appeal.” (Majority Op. stood his before showing in sufficient rules this case and 694-95.) words, majority In other is adequate Specifically without notice. it decide, spite free says upon the Calene court relied an un- Court, Supreme showing Wy- what kind of letter justify sworn a remand for an oming procedure required for an evidentia- evidentiary hearing but Barkell was denied ry hearing at the time made Barkell his because his factual recitals were request. I do not see how that conso- not sworn. The majority assumes that Williams, nant with 529 U.S. at denying was the basis for a hearing to (“Diligence S.Ct. 1479 will require (the Wyoming Barkell Court said prisoner, usual case at mini- thing). no crediting majori- such But mum, seek an state ty’s assumption change does not the result. court in prescribed by the manner state In procedure Calene the correct for pre- added)). (emphasis law.” senting ineffective assistance of counsel Contrary suggestion, the majority’s definitively explained claims was for the procedural prevented no bar or discour- time. first that watershed decision the aged from making a sufficient ordered Court a re- showing. was free to present He whatev- for an evidentiary hearing mand based er he thought appropriate. question The upon Calene’s But it unsworn letter. also is not diligent identify- whether laid out future cases threshold ing and presenting justifying facts an evi- requirement for obtaining such a hearing dentiary hearing, but whether efforts saying, “a motion for remand should be were adequate. The Wyoming Supreme appropriately made and supported con- “no,” says “yes.” Court said the majority defining any tentions and supporting inef- Assuming majority is correct and the supported, fectiveness claim in detail and erred, Supreme Court AEDPA may appropriate, by affidavit suffi- required. deference is still deci- substantially cient to establish [sic unreasonable, ].” sion merely must be in- Calene, Williams, 846 P.2d at correct. 692. The Griswold 529 U.S. at (“[A] case, Supreme S.Ct. 1495 federal may habeas court which Court not issue writ simply because that in denying request cited for a represented by appellate may inadequate. Barkell was coun- counsel have been As I ex- (who later, sel attorney). plain was his trial If a explored post not more that can be in state (as showing required Wyo- robust proceedings, was conviction which have not been held) ming Supreme appellate Court his exhausted. proceeding peti- resulted in the remand, demanding. In which no or less is more conviction; tioner’s the court said: Grisivold Re- his for Partial denied Motion We (ii) original not raised in the or Was mand, finding that Griswold failed original petition an amendment to the for his a substantial factual basis provide act; or under this brief, Moreover, appellate in his claim. (iii) on merits or on decided its Was arguments or provides no facts Griswold procedural grounds any previous in of assertion. We support in this proceeding final. which has become will not consid- consistently held that we (a)(1) (b) Notwithstanding of paragraph by cogent argu- unsupported claims er section, petition this a a may court hear authority. Madrid v. pertinent ment or if: State, (Wyo.1996). 910 P.2d (I) sup- petitioner forth facts The sets Griswold, 994 P.2d at 930-31. ported by affidavits or other credible Court has not The which was not known or rea- rules, alone done so with- changed the let sonably available him at the time (osten- gave It a break notice. Calene out appeal; or direct pioneer on the was a sibly because he (ii) that finding The court makes a issue) but, so, in it also announced doing was constitu- petitioner denied (detailed future cases demanding rule for counsel tionally assistance of effective by affi- supported, appropriate, motion finding appeal. on direct This his davit). do Subsequent Wyoming decisions may supreme reviewed be rule the affidavit has been suggest not action together any further court relaxed. ignored or peti- court taken on the the district his for a claim quest In his tion. of trial counsel Barkell en- ineffectiveness (c) not to claims of apply This act does counsel who joyed appellate the services of rights any proceed- error or denial of trial. Barkell’s not involved his was ing: experienced counsel is and well appellate (I) probation or For the revocation of a re- showing required for aware of parole; district for mand to (ii) on trial counsel inef- rule or court Provided statute reduction, majority correctly trial, ob- sen- fectiveness. sentence new requires ineffective- post-verdict serves correction other tence to be raised on direct ness of counsel motion. 694.) Op. at But (Majority appeal. (d) under this act shall petition No appellate not ineffective apply

rule does (5) years if filed more than five allowed appellate If counsel was ineffec- counsel. judgment after of conviction remedy. Barkell has He can tive another entered. relief in the post conviction petition (1977) (emphasis § 7-14-103 Wyo. Stat. relevant court. The statute state district added.) provides: potential has exhausted (a)A procedural- claim this act under appellate assistance of claim of ineffective jurisdiction and no court has ly barred counsel. claim: if the to decide claim Wyo- (I) requires AEDPA deference raised Could have been but Its case. ming Court this appeal from the not raised a direct contrary to was not or an unrea- decision application of federal deter-

sonable law as States

mined United

Court. We should affirm district respects.

in all America,

UNITED STATES

Plaintiff-Appellee, JONES, Smooth, known

Steven also

Defendant-Appellant.

No. 06-8003. Appeals, States

United Court

Tenth Circuit.

Nov.

Case Details

Case Name: Barkell v. Crouse

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Nov 7, 2006

Citation: 468 F.3d 684

Docket Number: 05-8045

Court Abbreviation: 10th Cir.