                                                                   FILED
                                                        United States Court of Appeals
                                                                T e nth C ir cu it
                                PUBLISH
                                                               March 29, 2016
                UNITED STATES COURT OF APPEALS
                                                            Elisabeth A. Shumaker
                                                                Clerk of Court
                      FOR THE TENTH CIRCUIT
                        _________________________________

STEVEN D. BONNEY,

      Petitioner-Appellant,

v.

EDDIE WILSON, Warden,                               No. 15-8010
Wyoming State Penitentiary;
ROBERT LAMPERT, Director,
Wyoming Department of
Corrections; PETER K. MICHAEL,
Wyoming Attorney General,

      Respondents-Appellees.
                       _________________________________

                 Appeal from the United States District Court
                      for the District of Wyoming
                    (D.C. No. 2:11-CV-00345-NDF)
                         _________________________________

Diane E. Courselle, Laramie, Wyoming, University of Wyoming College of Law,
for Petitioner-Appellant.

David L. Delicath, Deputy Attorney General, (Peter K. Michael, Attorney
General, with him on the brief) Office of the Attorney General for the State of
Wyoming, Cheyenne, Wyoming, for Respondents-Appellees.
                         _________________________________

Before GORSUCH, BACHARACH, and McHUGH, Circuit Judges.
                   _________________________________

BACHARACH, Circuit Judge.
                  _________________________________
      This appeal involves a habeas action brought by Mr. Steven Bonney.

When Mr. Bonney was 17, five of his child relatives accused him of sexual

abuse. Mr. Bonney entered into a plea agreement with the State of

Wyoming and pleaded guilty to charges involving two of the children. The

state district court accepted the plea, entering a judgment of conviction and

sentencing Mr. Bonney to two consecutive terms of 15-20 years’

imprisonment (with the second term suspended in favor of probation for 15

years). Mr. Bonney soon regretted his plea and sought post-conviction

relief, arguing that his trial counsel had been ineffective. The state district

court denied relief on some claims and granted summary judgment to the

State on other claims. Mr. Bonney then brought this federal habeas action.

The federal district court granted habeas relief, but we reversed. 1 On

remand the district court granted summary judgment to the respondents,

and Mr. Bonney appeals. We reverse in part and affirm in part.




1
      In granting habeas relief, the district court held that Mr. Bonney’s
attorney had provided ineffective assistance by failing to inform Mr.
Bonney of a letter from one of the alleged victims (K.S.). We reversed,
holding that the state court “reasonably could have concluded that defense
counsel’s failure to disclose K.S.’s letter in a timely fashion was not
sufficient to undermine confidence in the outcome of the prosecution and
that a rational defendant would not have sought to withdraw his guilty plea
despite K.S.’s partial recantation.” Bonney v. Wilson, 754 F.3d 872, 886
(10th Cir. 2014) (emphasis in original).

                                    2
I.    Mr. Bonney did not commit a procedural default on his habeas
      claim involving trial counsel’s failure to adequately investigate
      the children’s accounts.

      In the habeas petition, Mr. Bonney claimed in part that his trial

counsel had failed to adequately investigate the children’s accounts. The

state district court declined to consider the merits of this claim, reasoning

that Mr. Bonney had not raised the claim through a direct appeal. As a

result, the federal district court considered the habeas claim procedurally

defaulted.

      But a direct appeal would have required Mr. Bonney’s trial counsel

to allege his own ineffectiveness, and the Wyoming courts have not

evenhandedly required attorneys to raise their own ineffectiveness on

direct appeal. For this reason, the procedural requirement, as applied by

the state district court, did not constitute an adequate basis for procedural

default. In these circumstances, the federal district court should have

considered the merits of the habeas claim.

      A.     We do not address issues defaulted in state court based on a
             state procedural ground that is independent and adequate.

      On habeas review, we do not address issues that were decided in state

court on an independent and adequate state procedural ground. English v.

Cody, 146 F.3d 1257, 1259 (10th Cir. 1998). The issue here is whether the




                                   3
state procedural ground is “adequate.” 2 A state procedural ground is

adequate only if it has been applied “evenhandedly to all similar claims.”

Hathorn v. Lovorn, 457 U.S. 255, 263 (1982).

      B.    The state district court concluded that Mr. Bonney should
            have filed a direct appeal to assert this claim.

      The state procedural ground at issue here is based on Wyo. Stat. Ann.

§ 7-14-103(a)(i), which states that post-conviction relief is ordinarily

unavailable if the claim could have been raised on direct appeal but wasn’t.

This statute is implicated because Mr. Bonney did not file a direct appeal;

he instead asserted this claim for the first time in a post-conviction

application. The state district court disapproved of this tactic, concluding

that Mr. Bonney could have raised the claim on direct appeal but had failed

to do so. Thus, relying on Wyo. Stat. Ann. § 7-14-103(a)(i), the state

district court granted summary judgment to the State on Mr. Bonney’s

claim.

      C.    We apply de novo review of the federal district court’s
            ruling.

      On habeas review, the federal district court concluded that the state

procedural ground was adequate for purposes of procedural default. We

review this conclusion de novo. See Anderson v. Att’y Gen., 342 F.3d 1140,




2
     In his reply brief, Mr. Bonney also argues that the state procedural
ground is not independent. We need not address this argument.
                                   4
1143 (10th Cir. 2003) (“This court reviews de novo whether claims are

procedurally barred.”).

      D.    The respondents bore the burden of proving that the state
            procedural ground was adequate even though Mr. Bonney
            lacked separate appellate counsel.

      In conducting this review, we note that the respondents bear the

burden of proof because procedural default is an affirmative defense.

Hooks v. Ward, 184 F.3d 1206, 1216-17 (10th Cir. 1999). Thus, the

respondents had to prove in federal district court that the State of

Wyoming had evenhandedly applied § 7-14-103(a)(i) to all similar claims.

See Part I(A), above.

      E.    The state procedural ground is inadequate here because
            Wyoming courts have not evenhandedly required trial
            attorneys to allege their own ineffectiveness in a direct
            appeal.

      Mr. Bonney argues that the state procedural ground is not adequate

because his only attorney during the period for an appeal was the attorney

who had handled the trial. In Mr. Bonney’s view, Wyoming courts have not

evenhandedly required trial attorneys to assert their own ineffectiveness in

a direct appeal. We agree.

      The Wyoming Supreme Court has considered it “questionable” for

attorneys to allege their own ineffectiveness. Keats v. State, 115 P.3d

1110, 1117 (Wyo. 2005). The court has also expressed skepticism about

such an allegation when the defendant’s trial and appellate attorneys are


                                   5
not independent from one another. Id. For example, in Keats v. State, the

defendant’s appellate counsel considered herself a subordinate of the

defendant’s trial counsel. Id. In light of this relationship between the

attorneys, the Wyoming Supreme Court applied cases stating “that it is not

appropriate or expected for one to raise one’s own ineffectiveness.” Id. 3

      Against this backdrop, the respondents have not identified a single

case in which Wyoming courts applied § 7-14-103(a)(i) when

           the defendant’s appellate counsel also served as trial counsel or

           the defendant’s only attorney during the appeal period also
            handled the trial.

See Oral Arg. 31:41-32:03 (concession by the respondents that the

Wyoming Supreme Court has never applied § 7-14-103(a)(i) when the same

attorney represented the defendant at trial and in the direct appeal). Thus,

§ 7-14-103(a)(i) cannot serve as an adequate basis for a procedural default.

See Neill v. Gibson, 263 F.3d 1184, 1193 (10th Cir. 2001) (stating that

Oklahoma’s “procedural bar . . . is not adequate to preclude habeas review

of [the habeas petitioner’s] ineffective-assistance claim because the same

attorney represented [the petitioner] both at trial and on direct appeal”);


3
       Our circumstances differ because Mr. Bonney never filed a direct
appeal. But the Wyoming Supreme Court applies § 7-14-103(a)(i) when the
defendant bypasses a direct appeal to assert a claim for the first time in a
post-conviction application. Hauck v. State, 162 P.3d 512, 515 (Wyo.
2007). Thus, the federal district court applied § 7-14-103(a)(i), reasoning
that Mr. Bonney’s attorney could have appealed based on ineffectiveness
of trial counsel.
                                   6
Walker v. Gibson, 228 F.3d 1217, 1231-32 (10th Cir. 2000) (“[T]he claim

is not procedurally barred because [the habeas petitioner] had the same

counsel at trial and on appeal.”).

      The respondents argue that in our unpublished opinion in Teniente v.

Wyoming Attorney General, we held that the procedural requirements in

§ 7-14-103(a)(i) are considered adequate for procedural default. 412 F.

App’x 96 (10th Cir. 2011) (unpublished). Indeed, they ordinarily are. But

Teniente involved claims of prosecutorial misconduct and evidentiary

error, not ineffective assistance. 412 F. App’x at 101. As a result, we did

not address the adequacy of the procedural requirements in § 7-14-

103(a)(i) when the habeas claim would involve an attorney’s allegation of

his own ineffectiveness. See id. Thus, Teniente did not involve our issue. 4

      F.    The alleged procedural default cannot be based on Mr.
            Bonney’s appeal waiver.

      In concluding that the habeas claim was procedurally defaulted, the

federal district court pointed to Mr. Bonney’s waiver of his right to appeal.

But for two reasons, the appeal waiver cannot serve as the basis for a

procedural default: (1) the waiver was not invoked in state court, and (2)

Wyoming courts have not evenhandedly enforced appeal waivers when

defendants attribute their guilty pleas to ineffective legal representation.



4
      Because Teniente was unpublished, it would not constitute precedent
even if the opinion had addressed our issue. 10th Cir. R. 32.1(A).
                                     7
      First, the state district court did not mention the appeal waiver. Even

here, the respondents do not argue that the appeal waiver would support a

procedural default. See, e.g., Appellees’ Resp. Br. at 13-15; Oral Arg. at

24:47-24:54. That is understandable because § 7-14-103(a)(i) would not

apply to an appeal waiver. This section expressly covers the failure to raise

an argument in a direct appeal, but says nothing about the waiver of a right

to appeal. Thus, in relying on § 7-14-103(a)(i), the state district court

relied on the failure to assert the claim in a direct appeal, not Mr.

Bonney’s waiver of his right to appeal.

      Second, Wyoming courts have not evenhandedly enforced appeal

waivers to preclude consideration of ineffective assistance claims.

Wyoming courts apply a three-part test to determine the enforceability of

an appeal waiver:

      1.    Does the appeal fall within the scope of the appeal waiver?

      2.    Did the defendant knowingly and voluntarily waive appellate
            rights?

      3.    Would enforcement result in a miscarriage of justice?

Henry v. State, 362 P.3d 785, 789 (Wyo. 2015). In determining whether

enforcement would result in a miscarriage of justice, Wyoming courts

consider whether the defendant lacked effective assistance of counsel in

negotiating the waiver. Id. at 790.




                                      8
        Mr. Bonney’s appeal waiver was contained in his plea agreement. Mr.

Bonney attributes that plea agreement to ineffective assistance, claiming

that his attorney exaggerated the benefits of the agreement and

underestimated the potential for an acquittal. The Wyoming Supreme Court

has never addressed the validity of an appeal waiver that was allegedly the

product of ineffective assistance. As a result, the respondents have not

shown evenhanded enforcement of appeal waivers in similar circumstances.

        For both reasons, the procedural default cannot be based on Mr.

Bonney’s appeal waiver.

        G.   We must remand rather than consider the possibility of
             affirming on alternative grounds involving the merits.

        Because the federal district court erred in applying procedural

default, we must decide whether to consider the possibility of affirming on

alternative grounds involving the merits. We have declined to affirm a

grant of summary judgment on alternative grounds when doing so would be

unfair to the nonmovant. See Tavery v. United States, 32 F.3d 1423, 1427

n.5 (10th Cir. 1994). Affirmance on alternative grounds would be unfair

here.

        Mr. Bonney, as the nonmovant opposing summary judgment, was

obligated only to present evidence opposing the arguments made in the




                                    9
respondents’ summary judgment motion. See id. 5 In federal district court,

the respondents sought summary judgment on this claim based solely on

procedural default; they did not argue in the alternative that the habeas

claim would fail on the merits. As a result, Mr. Bonney had no reason to

respond to the summary judgment motion with evidence supporting the

merits of his habeas claim. Even now, the respondents do not defend the

summary judgment ruling on the merits of the claim. In these

circumstances, it would be unfair to affirm based on the merits. See id.

(“We feel it would be unfair to affirm the summary judgment against Ms.

Tavery [on the basis of an] argument . . . not made below.”); see also Fed.

R. Civ. P. 56(f), (f)(2) (permitting entry of summary judgment on “grounds

not raised by a party” only after the adverse party has obtained “notice and

a reasonable time to respond”). Thus, we decline to consider the possibility

of affirming based on alternative grounds involving the merits. See Evers

v. Regents of the Univ. of Colo., 509 F.3d 1304, 1309-10 (10th Cir. 2007)

(stating that the Court of Appeals could not affirm a summary judgment


5
      The federal district court has discretion whether to apply the Federal
Rules of Civil Procedure in habeas cases. See Rule 12, Rules Governing
Section 2254 Cases in the United States District Courts; see also Fed. R.
Civ. P. 81(a)(4) (stating that in habeas cases, the applicability of the
Federal Rules of Civil Procedure is governed by the Rules Governing
Section 2254 Cases). In the summary judgment proceedings, the federal
district court and the parties relied on Rule 56 of the Federal Rules of Civil
Procedure. As a result, we apply our case law involving a party’s duty
under Rule 56 to respond to the grounds raised in the summary judgment
motion.
                                  10
award on alternative grounds because the nonmoving party had no notice of

the need to present argument and all his evidence on the issue).

II.   The federal district court properly rejected Mr. Bonney’s other
      habeas claims on substantive grounds.

      In claiming ineffective assistance, Mr. Bonney also complained about

his attorney’s portrayal of the benefits from the plea agreement. On appeal,

Mr. Bonney claims that his attorney exaggerated

             the benefits from dismissal of one count (Count V),

             the value of the prosecutor’s promise to make a favorable
              recommendation to a prosecutor in another county (Pueblo
              County) about the possible filing of additional charges, and

             the significance of one child’s (P.M.’s) statement to
              prosecutors.

      On these claims, the state district court granted an evidentiary

hearing and

             granted summary judgment to the State on the claim involving
              failure to seek dismissal of Count V,

             granted summary judgment to the State on the claim involving
              exaggeration of the value of a recommendation not to pursue
              charges in Pueblo County, and

             denied habeas relief on the claim involving exaggeration about
              P.M.’s interview with prosecutors.

Mr. Bonney renewed these claims in the habeas petition, and the federal

district court granted summary judgment to the respondents on each claim.

We agree with these rulings.


                                    11
      A.    Our review is limited under federal law.

      The threshold issue is our standard of review. Because the federal

district court granted summary judgment, we apply de novo review.

Timmons v. White, 314 F.3d 1229, 1232 (10th Cir. 2003). Thus, we must

apply the standard that applied in federal district court. See Sperry v.

McKune, 445 F.3d 1268, 1271 (10th Cir. 2006) (stating that in considering

a summary judgment motion on a habeas claim, we “apply[] the same

standards used by the district court”).

      That standard had two components:

           Federal Rule of Civil Procedure 56, which governs the award
            of summary judgment, and

           28 U.S.C. § 2254(d), which governs the award of habeas relief.

The federal district court applied both components when awarding

summary judgment to the respondents. Thus, we must consider the

interplay between

           the standard for summary judgment in Federal Rule of Civil
            Procedure 56 and

           the restrictions in 28 U.S.C. § 2254(d) for a grant of federal
            habeas relief.

See Cummings v. Polk, 475 F.3d 230, 237 (4th Cir. 2007) (“We review de

novo a district court’s award of summary judgment, applying [the

Antiterrorism and Effective Death Penalty Act’s] deferential standard of




                                   12
review to the state court’s adjudication of a petitioner’s claims on the

merits.”).

      The standard in federal district court was established in a federal

statute, 28 U.S.C. § 2254(d). Under that statute, the federal district court

cannot engage in de novo review of legal conclusions adjudicated on the

merits in state court. See 28 U.S.C. § 2254(d). Instead, the scope of the

federal district court’s review turns on whether the state court adjudicated

the merits. See id. 6

      The state district court rejected two of the constitutional claims by

awarding summary judgment to the State, and these rulings constituted

adjudications on the merits. See Goichman v. City of Aspen, 859 F.2d

1466, 1471 n.13 (10th Cir. 1988) (“We recognize that summary judgment

operates as an adjudication on the merits.”). As a result, the federal

district court had to apply 28 U.S.C. § 2254(d)(1) on each of the three

claims. This section allows consideration of the underlying habeas claim

only if the state district court

            acted contrary to a Supreme Court decision or

            unreasonably applied a Supreme Court decision.

6
      In post-conviction proceedings, the Wyoming Supreme Court denied
certiorari. But there the court did not provide analysis. As a result, we
review only the last reasoned court decision. Ylst v. Nunnemaker, 501 U.S.
797, 803 (1991); see Brecheen v. Reynolds, 41 F.3d 1343, 1358 (10th Cir.
1994) (“In practice, the look-through rule tells a federal habeas court to
ignore the unexplained order and focus upon the last reasoned state court
decision.”).
                                   13
28 U.S.C. § 2254(d)(1). 7

     B.     We apply a two-part test in addressing Mr. Bonney’s claim
            of ineffective assistance.

     In applying the standard under § 2254(d)(1), 8 we consider Mr.

Bonney’s ineffectiveness claims under the two-part test in Strickland v.

Washington, 466 U.S. 668 (1984). Under Strickland, Mr. Bonney had to

show that

           counsel’s performance was objectively unreasonable and

           there was a reasonable probability that but for counsel’s
            deficient performance, the result of the proceeding would have
            been different.

466 U.S. at 687-88, 694. To show prejudice (the second prong) in the

context of a plea agreement, Mr. Bonney had to “convince the court that a

decision to reject the plea bargain would have been rational under the

circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372 (2010); accord

Bonney v. Wilson, 754 F.3d 872, 884 (10th Cir. 2014). In applying this


7
      Rule 56 and 28 U.S.C. § 2254(d) differ in how the federal district
court is to view the evidence. Under Rule 56, the federal district court
must view the evidence in the light most favorable to the nonmovant (Mr.
Bonney). Bertsch v. Overstock.com, 684 F.3d 1023, 1027 (10th Cir. 2012).
Under § 2254(d)(2), however, the federal district court must view the
evidence in a light reasonably supportive of the state district court’s
findings. See Part II(D), below.

     The difference between Rule 56 and § 2254(d)(2) does not affect our
consideration of this issue because Mr. Bonney has declined to invoke
§ 2254(d)(2) on this habeas claim.
8
     See Part II(A), above.
                                 14
test, the federal district court concluded that the alleged deficiencies in the

representation would not have been prejudicial.

      C.    The federal district court did not err in granting summary
            judgment to the respondents on the habeas claim involving
            failure of Mr. Bonney’s attorney to seek dismissal of Count
            V.

      In the habeas petition, Mr. Bonney alleged that his trial counsel was

ineffective in failing to seek dismissal of Count V, which charged third-

degree sexual assault of V.B. Under state law, a third-degree sexual

assault took place only if the perpetrator was an adult and the victim was

13 or younger. Wyo. Stat. Ann. § 6-2-304(a)(ii) (repealed 2007). 9 Mr.

Bonney was only 17 at the time, not yet an adult, and V.B. was 14. The

state district court granted summary judgment to the State, reasoning that

counsel’s alleged failure to seek dismissal was not prejudicial. The federal

district court concluded that this ruling does not entitle Mr. Bonney to

federal habeas relief. We agree.




9
       Under Wyoming law, the prosecution is governed by the law in effect
when the alleged crime took place. See Wyo. Stat. Ann. § 6-1-101(b).
(stating that “[p]rosecutions for a crime shall be governed by the law in
effect on the date when the crime occurred”). Thus, the 2007 repeal of the
statute does not affect this appeal. See Wyo. Stat. Ann. § 8-1-107 (“[N]or
shall any repeal or amendment affect . . . prosecutions or proceedings
existing at the time of the . . . repeal, unless otherwise expressly provided
in the amending or repealing act.”). The conduct that was previously
outlawed by Wyo. Stat. Ann. § 6-2-304(a)(ii) is now outlawed by §§ 6-2-
315(a)(ii) and 6-2-316(a)(i).

                                   15
      The plea agreement required the State to dismiss Count V. Thus, Mr.

Bonney obtained the benefit of dismissal even though it came as part of a

plea agreement rather than an order on a motion to dismiss.

      Mr. Bonney argues that he signed the plea agreement partly because

his attorney had exaggerated the value of the State’s promise to dismiss

Count V. According to Mr. Bonney, the State’s promise was meaningless

because he was too young and the alleged victim (V.B.) was too old for a

third-degree sexual assault. Even if Mr. Bonney is correct, the prosecutors

could have amended the charges. For example, prosecutors could have

invoked Wyo. Stat. Ann. § 14-3-105(a) (repealed 2007), 10 which prohibited

Mr. Bonney from “knowingly taking immodest, immoral or indecent

liberties with any child or knowingly causing or encouraging any child to

cause or encourage another child to commit with him any immoral or

indecent act.”

      The opportunity to amend the charge is fatal to this habeas claim

because even if Count V were facially invalid, the attorney’s alleged

failure to file a motion to dismiss did not affect the likelihood that a

rational defendant would accept the plea agreement. In these

circumstances, Mr. Bonney suffered no prejudice. As a result, the

respondents were entitled to summary judgment on this habeas claim.



10
      This statute was repealed in 2007. See note 8, above.
                                   16
     D.    We affirm the grant of summary judgment to the
           respondents on the ineffective assistance claim involving
           counsel’s exaggeration of the value of a recommendation
           that Pueblo County drop its charges.

     Mr. Bonney faced potential charges in two jurisdictions:

     1.    Pueblo County, Colorado and

     2.    Laramie County, Wyoming.

These potential charges were based on reports that Mr. Bonney had

engaged in sexual misconduct with five child relatives of Mr. Bonney:

P.M., K.S., K.B., T.N., and V.B. By the time Mr. Bonney pleaded guilty,

the prosecutors had narrowed the charges to be filed. In Laramie County,

the charges involved sexual misconduct against only T.N. and V.B. In

Pueblo County, Mr. Bonney faced the possibility of charges involving

another child: K.B.

     Mr. Bonney pleaded guilty to the Laramie County charges. In return,

the Laramie County prosecutors agreed to recommend to prosecutors in

Pueblo County that they not pursue any charges involving K.B. According

to Mr. Bonney, his attorney overstated the risk of additional charges

involving K.B. Mr. Bonney downplays the risk, insisting that Pueblo

County prosecutors had already decided not to pursue the charges by the

time he signed an amended plea agreement.

     On this claim, the state district court granted summary judgment to

the State based on a lack of prejudice. Based on this ruling, the federal


                                  17
district court awarded summary judgment to the respondents. In reviewing

this grant of summary judgment, we apply the dual standards under

           Federal Rule of Civil Procedure 56 and

           28 U.S.C. § 2254(d).

See Part II(A), above. Applying these standards, we agree that this habeas

claim fails for lack of prejudice.

      To prevail on this habeas claim, Mr. Bonney must show that an

objectively reasonable defendant would not have accepted the amended

plea agreement if trial counsel had taken further steps to learn the status of

the case in Pueblo County. See Part II(A), above. Mr. Bonney cannot

prevail under this standard. When he signed the initial plea agreement,

promising to plead guilty, Pueblo County prosecutors were still

considering whether to pursue the charges involving K.B. Mr. Bonney later

signed an amended plea agreement; by that time, Pueblo County

prosecutors had decided not to pursue the additional charges.

      According to Mr. Bonney, he would not have signed the amended

plea agreement if he had known of the decision by Pueblo County

prosecutors. But if Mr. Bonney had refused to sign the amended plea

agreement, the original plea agreement would have applied. The original

agreement was virtually identical to the amended plea agreement, for both

versions



                                     18
           required Mr. Bonney to plead guilty to two counts of second-
            degree sexual assault and

           required the prosecutors to recommend consecutive sentences
            of 15-20 years on the two counts.

Mr. Bonney acknowledges one difference, but this difference benefited

him: Without the amendment, prosecutors could have brought new charges

involving sexual misconduct against K.S. This possibility was eliminated

in the amended plea agreement. 11

      Having already committed to plead guilty under the initial plea

agreement, no rational defendant would have refused to enter the amended

plea agreement even if he or she had greater information about the status

of the Pueblo County charges. In these circumstances, Mr. Bonney was not

prejudiced by his attorney’s alleged failure to learn the current status of

the Pueblo County investigation. As a result, the respondents were entitled

to summary judgment on this claim.




11
       The amended plea agreement also expressly allowed K.S. and P.M. to
testify at the sentencing. But the original plea agreement did not prohibit
that testimony. In the absence of such a prohibition, the state district court
could have allowed testimony by K.S. and P.M. See Town v. State, 351
P.3d 257, 262-64 (Wyo. 2015) (allowing testimony at sentencing); Magnus
v. State, 293 P.3d 459, 468-69 (Wyo. 2013) (allowing consideration of
other offenses at sentencing).
                                    19
      E.    The federal district court did not err in rejecting Mr.
            Bonney’s habeas claim involving his attorney’s
            misrepresentation about P.M.’s statements to prosecutors.

      P.M. told prosecutors that he had been sexually abused by Mr.

Bonney. Under the amended plea agreement, prosecutors agreed not to

charge Mr. Bonney with abuse of P.M. According to Mr. Bonney, his

attorney exaggerated the value of this promise, stating falsely that P.M.

had given a video recording lasting 3½ hours, had appeared to be a

compelling witness, and had told prosecutors about 8 separate acts that

could result in 8 additional charges. The state district court conducted an

evidentiary hearing and rejected the habeas claim on the merits. In doing

so, the court found that

           Mr. Bonney’s version of events was that his attorney had told
            Mr. Bonney’s family about the P.M. video before the video
            could have been made,

           there was some doubt regarding the veracity of Mr. Bonney’s
            version,

           P.M.’s testimony could have created problems for Mr. Bonney
            at trial, and

           P.M.’s testimony could have resulted in additional charges.

      Mr. Bonney argues that his counsel

           failed to independently evaluate the prosecutor’s
            representations about P.M.’s testimony and

           exaggerated the importance of P.M.’s expected testimony.




                                  20
But in light of the state district court’s factual findings, we conclude that

Mr. Bonney was not prejudiced by his counsel’s alleged deficiencies.

       The state district court found that it was “true” that “P.M.’s

testimony could cause problems if allowed to be presented as 404(b)

evidence [‘proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident’] in this case” and

that “additional charges could be filed.” Appellant’s App’x at 682.

       Mr. Bonney does not challenge the reasonableness of this finding,

and that omission is fatal. Even if Mr. Bonney’s counsel had investigated

further, he would have found that “P.M.’s testimony could cause problems”

with respect to the existing charges and that the State could have filed

additional charges. Id. The agreement allowed Mr. Bonney to

            avoid additional charges related to P.M. and

            reduce the risk that P.M. would be allowed to testify.

Thus, Mr. Bonney has not shown that further investigation would have led

a reasonable person to reject the plea agreement. See Part II(A), above.

       Because the state district court reasonably applied Supreme Court

precedent, we uphold the denial of habeas relief on the claim involving

P.M.’s statement to prosecutors.

III.   Disposition

       We reverse the award of summary judgment to the respondents

on the habeas claim involving a failure to adequately investigate
                                   21
discrepancies in the children’s accounts. We affirm the rulings on the

other habeas claims.




                                 22
