                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                     UNITED STATES CO URT O F APPEALS
                                                                  October 16, 2007
                                                    Elisabeth A. Shumaker
                         FO R TH E TENTH CIRCUIT        Clerk of Court



    G A RY LEE B ELD EN ,

                Petitioner-A ppellant,

    v.                                                   No. 07-8000
                                                  (D.C. No. 04-CV-203-CAB)
    W Y O M ING D EPA RTM EN T O F                        (D . W yo.)
    C ORREC TIO N S; WY O M IN G
    ATTO RN EY G ENERAL,

                Respondents-Appellees.



                             OR D ER AND JUDGM ENT *


Before PO RFILIO, A ND ER SO N, and BALDOCK , Circuit Judges.


         Gary Lee Belden, a W yoming state prisoner, appeals from a district court

order denying habeas relief from his convictions for first-degree sexual assault

and first-degree murder. He argues that the district court erred in resolving his

claims of judicial and prosecutorial misconduct. W e affirm.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                  B ACKGROUND 1

      On August 29, 1985, shortly after 8:00 p.m, Terrie Smith left the trailer

home that she shared with Nancy Lane to report for work near Diamondville,

W yoming. Smith testified that Lane was asleep in bed at the time and that no one

else was in the home. Belden, one of Smith’s co-workers, w as scheduled to

report to work at 9:30 p.m. Instead of punching in, however, Belden abruptly quit

his job. Various co-workers described Belden’s appearance as suspicious,

impatient, and nervous. One co-worker additionally noted that Belden had

scratches on his chest, neck, and face. Belden disposed of several personal items

before leaving work in a co-worker’s truck, which he did not have permission to

use. Belden also left various items behind, including a motorcycle and his final

paycheck.

      Smith returned home after completing her shift early the next morning and

found Lane’s naked body on the living room floor. Lane had been beaten,

sexually assaulted, and strangled to death. Investigators collected scrapings from

under Lane’s fingernails, semen from her vagina, and a foreign hair that may or

m ay not have come from a blanket Smith had placed over Lane’s body. DNA

testing later identified the hair as belonging to Smith’s then estranged husband.




1
      W e distill the background facts from the W yoming Supreme Court’s
opinion in this case, Belden v. State, 73 P.3d 1041, 1047-48 (W yo. 2003), and
note any further facts from the undisputed evidence adduced at trial.

                                        -2-
      Twenty-eight months later, Belden was located in Utah. He told

investigators that he had permission to use the truck that he had taken on the night

of August 29, 1985. He also admitted that he knew Lane through Smith, but he

denied ever being inside Lane and Smith’s home. Belden provided the

investigators with blood and hair samples. DNA analysis revealed that Belden

was the source of the semen found in Lane’s body. DNA analysis of the

fingernail scrapings tended to exclude Belden as the source. But Lane’s former

boyfriend could not be excluded.

      For reasons that do not appear in the record, the investigation into Lane’s

death went dormant for over a decade. In 1998, the investigation resumed and led

to charges against Belden for sexual assault and first-degree murder.

      A jury trial was held in October 2000. Over Belden’s objection, the trial

judge allowed into evidence the fact that two women had accused Belden of rape,

but that Belden had not been convicted. Belden’s defense strategy was that he

had consensual sex with Lane on the night of August 29, 1985, and that she was

alive when he left her home. Belden suggested that either Lane’s ex-boyfriend or

Smith’s husband might have been involved in her death. The jury returned a

guilty verdict on both charges. The W yoming Supreme Court affirmed in a 3-2

decision, Belden v. State, 73 P.3d 1041 (W yo. 2003).

      Belden petitioned the federal district court for habeas relief. Unsuccessful,

he now appeals.

                                         -3-
                                    D ISCUSSION

                              I. Standards of Review

      Under the Antiterrorism and Effective Death Penalty Act (AEDPA ), when

the merits of a claim have been adjudicated in state court, federal habeas relief is

available only if the applicant shows that the state court decision was (1) contrary

to, or involved an unreasonable application of, clearly established Federal law, as

determined by the United States Supreme Court; or (2) based on an unreasonable

determination of the facts in light of the evidence presented in state court. 28

U.S.C. § 2254(d). In conducting this deferential inquiry, we presume that the

factual findings of the state court are correct, and we place the burden of

rebutting this presumption by clear and convincing evidence on the petitioner. Id.

§ 2254(e)(1). Finally, we review the district court’s application of the AED PA

framework de novo. Young v. Sirmons, 486 F.3d 655, 663 (10th Cir. 2007).

                              II. Judicial M isconduct

                                         A.

      Belden first claims that the trial court impermissibly influenced him “to

drop a line of questioning intended to show the jury that [Smith’s estranged

husband] was a viable suspect.” A plt. Opening Br. at 16. Specifically, Belden’s

attorneys sought to elicit from Smith that (1) her husband wanted to continue a

sexual relationship he had had with Smith and Lane; (2) Lane was not interested;

and (3) he had a history of sexual assault and violence toward women. The trial

                                         -4-
judge asked defense counsel in camera how the jury would view the proposed

testimony, given that he viewed it “as being totally nonsense and illogical.”

ROA, Vol. 7 at 696. He then stated,

      I see this as more damaging to the [d]efense than it is helpful. . . .
      You know, I want you and your client to insist-particularly your
      client, to insist that this kind of testimony be received. . . . Now, I
      don’t want to block the [d]efense, but I don’t want in my record any
      allegations of ineffective assistance of [c]ounsel.

Id. at 697. Belden expressly indicated that he wanted to proceed as outlined by

his attorneys. But after an ensuing off-the-record discussion with his attorneys,

Belden changed his mind. His attorneys indicated that, while they would ask

Smith about her husband’s desire for Lane, Belden did not want them to pursue

whether the husband had violent propensities. Belden assured the judge that his

decision was not influenced by the judge’s comments. The judge commented on

Belden’s change of mind, stating that it was a wise decision and that he would

allow Belden’s attorneys to proceed with their limited line of questioning.

      The W yoming Supreme Court concluded that the trial judge’s comments

were inappropriate and threatened to “involve the judge in the unique attorney-

client relationship.” Belden, 73 P.3d at 1056 (quotation omitted). Nevertheless,

it held that Belden was not prejudiced because the trial judge did not comment on

the appropriateness of the defense strategy before Belden decided to abandon the

strategy. Rather, it believed that the trial judge’s comments “up to that point had




                                         -5-
been an attempt to determine exactly where the defense was going with its

questioning of the witness.” Id.

      Belden contends that the W yoming Supreme Court’s holding is contrary to,

or an unreasonable application of, United States Supreme Court decisions

stressing the importance of a criminal defendant receiving the “guiding hand of

counsel at every step in the proceedings,” Powell v. Alabama, 287 U.S. 45, 69

(1932); see also Brooks v. Tennessee, 406 U.S. 605, 612-13 (1972). W e disagree.

      A decision is “contrary to” federal law only if the state court (1) reaches a

conclusion opposite of that reached by the Supreme Court on a question of law; or

(2) decides a case differently than the Supreme Court on materially

indistinguishable facts. Young, 486 F.3d at 662-63 (quotation omitted). First, the

W yoming Supreme Court did not reach a legal conclusion in opposition to Powell

and its progeny, as the court clearly recognized the importance of defense

counsel’s guidance when it discussed whether the trial judge had encroached on

the attorney-client relationship. Second, Belden does not claim that the trial

judge’s comments are controlled by a factually indistinguishable United States

Supreme Court case, and we have found none. Consequently, Belden cannot

prevail under AEDPA ’s “contrary to” clause.

      As for AEDPA ’s “unreasonable application” clause, Belden must show that

the W yoming Supreme Court unreasonably applied the governing legal principle

to the facts of the case. See Young, 486 F.3d at 663. In other words, he must

                                         -6-
show that the W yoming Supreme Court’s decision is “at such tension with

governing U.S. Supreme Court precedents, or so inadequately supported by the

record, or so arbitrary as to be unreasonable.” M aynard v. Boone, 468 F.3d 665,

671 (10th Cir. 2006) (quotation omitted), cert. denied, 127 S. Ct. 1819 (2007).

“It is not enough that the decision is clearly wrong or that [we] would have

reached a contrary decision.” Id. W e conclude that it was not unreasonable for

the W yoming Supreme Court to decide that Belden was not prejudiced by the trial

judge’s comments. W hile we question the court’s view that the judge did not

comment on the appropriateness of Belden’s proposed line of questioning before

Belden changed his mind, it is clear that the trial judge’s comments did not

influence Belden’s change of mind, given Belden’s express assurance that he was

not influenced by the judge. M oreover, the judge allowed Belden’s attorneys to

pursue Smith’s husband as a possible suspect by offering the jury evidence of the

husband’s sexual desire for Lane. Consequently, it was reasonable for the

W yoming Supreme Court to decide that Belden was not prejudiced by the judge’s

comments.

                                         B.

      Belden next argues that the trial judge became an adversary by suggesting a

“motive to silence” theory under which the two prior rape accusations against

Belden were ultimately admitted. W hen arguing the issue on direct appeal to the

W yoming Supreme Court, Belden contended that the trial judge suggested the

                                         -7-
theory during trial on October 11, 2000. But in the habeas proceedings in the

federal district court and this court, he contends that the trial judge suggested the

theory in an August 29, 2000 letter to the parties’ counsel. The federal district

court considered Belden’s argument only in the context in which it was presented

to the state court, apparently finding it unexhausted insofar as it involved the

judge’s letter. See Hawkins v. M ullin, 291 F.3d 658, 670 (10th Cir. 2002)

(“W hile a habeas petitioner might still be able to present to a federal habeas court

bits of evidence not previously presented in state court, he cannot first present

evidence in a federal habeas proceeding that places the claims in a significantly

different legal posture without first presenting that evidence in state court.”

(quotations omitted)).

      Even if we assume that the legal posture of Belden’s argument remains the

same w hether the motive theory was advanced during trial or in the August 29

pre-trial letter, habeas relief is still unavailable. The W yoming Supreme Court

concluded that the prosecution, rather than the trial judge, suggested the theory of

admissibility. To support its conclusion, the court cited various portions of the

record, including the transcript of an August 28 hearing on the prior rape

accusations. After reviewing that transcript, we are convinced that the W yoming

Supreme Court did not unreasonably attribute a “motive to silence” theory to the

prosecution. Specifically, we note that at the hearing, the prosecutor theorized

that “[m]otive also would go to the murder charge, your Honor, because the

                                          -8-
motive in that case would be the sexual assault.” ROA, Vol. 2, Doc. 24, App. 6 at

17. In response, the trial judge criticized the theory, questioning how a motive to

silence Lane was connected to the purported past rapes. The prosecutor

acknowledged the court’s criticism and quickly moved on to another area. W e

conclude that it is sufficiently clear from the record that the “motive to silence”

theory originated with the prosecution, before the trial judge’s A ugust 29 letter.

                                          C.

      Belden challenges the W yoming Supreme Court’s decision that he was not

prejudiced when the trial judge scolded both parties’ counsel in front of the jury.

The incident occurred in the context of the prosecutor’s attempts to elicit from a

witness the value of Belden’s motorcycle, which Belden had abandoned fifteen

years earlier. W hen the prosecutor asked the witness whether he (the w itness)

would have abandoned such a motorcycle, defense counsel objected and requested

a mistrial. After further argument from the prosecutor and voir dire by the

defense counsel, the judge ended the matter:

            The Court: Fellows, enough’s enough. Enough’s enough from
      both of you. You’re treating the Jury and me like we’re a bunch of
      dummies.
            [D efense Counsel]: I’m not trying to, your Honor.
            The Court: Ladies and Gentlemen, you know what this is all
      about, don’t you? Is there anybody confused about what’s going on
      about the motorcycle? If so, raise your hands?
            No hands have been raised. Now, the motion for mistrial is
      denied. M r. Anderson [the prosecutor], I won’t reprimand you for
      anything other than wasting our time over this issue of the
      motorcycle.

                                          -9-
              Now, Ladies and Gentlemen, it’s time for the noon recess and
      w e’ll take it now .

ROA, Vol. 6 at 498. Immediately after the recess, the judge instructed the jurors

to disregard any impressions they might have developed about his view of the

motorcycle evidence. He explained:

      I do not want you to think that any of the comments that I made to
      you at the end of the morning session were a comment on any of the
      evidence. Anything that I said at the end of the morning recess was
      not a comment on the evidence. It was a comment on the actions of
      the attorneys and that’s what I intended it to be.

Id. at 511-12.

      The W yoming Supreme Court found the judge’s remarks “unsettling.”

Belden, 73 P.3d at 1065. But it rejected Belden’s claim that he was prejudiced by

those remarks, reasoning that (1) the judge focused his ire on the prosecutor, (2)

the evidence regarding the “motorcycle w as, at most, peripheral to the ultimate

question of Belden’s guilt,” and (3) “any prejudicial effects of the court’s

comm ents were mitigated by the timely instruction given to the jury.” Belden, 73

P.3d at 1065. Belden challenges the state court’s decision with minimal analysis

and by citing a variety of United States Supreme Court decisions, several of

which are of questionable relevance. Roughly on point, however, is Liteky v.

United States, 510 U.S. 540, 555 (1994) (holding that judicial rulings and remarks

during trial that are disapproving or even hostile to counsel, the parties, or their

cases do not support a claim of bias or partiality unless they reveal “such a high



                                          -10-
degree of favoritism or antagonism as to make fair judgment impossible”). W e

conclude that the W yoming Supreme Court’s determination was not contrary to,

or an unreasonable application of, Litekey. W hile the trial judge did address his

overall comments to both counsel, he limited his reprimand to the prosecutor,

seemingly disparaging the motorcycle’s evidentiary importance to the state. And

none of the comments, while indeed unsettling, were so highly favorable to the

prosecution or antagonistic to the defense as to preclude a fair trial, especially

considering the trial judge’s cautionary instruction. Habeas relief on this matter

is not warranted. 2

                            III. Prosecutorial M isconduct

       In general, habeas relief is available for prosecutorial misconduct only if

the misconduct “so infected the trial with unfairness as to make the resulting

conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637,

643 (1974). But if the “challenged statements effectively deprived the defendant

of a specific constitutional right,” relief is available unless the violation can be




2
       W e do not address Belden’s assertion that “the trial judge made numerous
other improper comments denigrating counsel for both parties and reducing the
seriousness of the proceedings.” Aplt. Opening Br. at 31. None of those
purported other comments are detailed or analyzed in the briefs. “It is
insufficient merely to state in one’s brief that one is appealing an adverse ruling
below without advancing reasoned argument as to the grounds for the appeal.”
United States v. Apperson, 441 F.3d 1162, 1195 (10th Cir. 2006) (quotation
omitted), cert. denied, 127 S. Ct. 1003 (2007).

                                         -11-
“deemed harmless beyond a reasonable doubt.” Gipson v. Jordan, 376 F.3d 1193,

1197 (10th Cir. 2004) (quotations omitted).

                                         A.

      Belden challenges the W yoming Supreme Court’s determination that he

was not materially prejudiced when a government witness commented about his

guilt. The comment occurred during an exchange between the prosecutor and a

sheriff’s investigator:

            [Prosecutor]: And part of what led you to believe that you
      knew who perpetrated this crime was DNA evidence; is that not
      correct?
            [Investigator]: Yes.
            [Prosecutor]: Can you relate to the Jury what DNA evidence
      you had at that time?
            [Investigator]: DNA indicated that Gary Belden had sexually
      assaulted her and had left semen w ithin her body at that time.

ROA, Vol. 7 at 646 (emphasis added). Belden’s counsel did not object to the

investigator’s remark that DNA analysis had somehow shown that Belden’s semen

was deposited via a sexual assault rather than consensual sex. The Wyoming

Supreme Court reviewed the exchange for plain error and concluded that Belden

was not materially prejudiced because (1) the remark was not responsive to the

prosecutor’s question; (2) the investigator was not testifying as an expert on DN A

or sexual assaults; (3) Belden was not claiming that it was someone else’s semen;

and (4) after the remark, the prosecutor moved on with his questioning and the




                                        -12-
remark was not repeated by the investigator or referenced by the prosecutor.

Belden, 73 P.3d at 1087.

      Belden disputes the W yoming Supreme Court’s decision that he was not

prejudiced, claiming that this was not the only time the prosecutor elicited

testimony on his guilt. But he mentioned only the above testimony in his brief to

that court. The federal district court found Belden’s claim procedurally barred.

W e agree. As we have already noted, “[w]hile a habeas petitioner might still be

able to present to a federal habeas court bits of evidence not previously presented

in state court, he cannot first present evidence in a federal habeas proceeding that

places the claims in a significantly different legal posture without first presenting

that evidence in state court.” Hawkins, 291 F.3d at 670 (quotations omitted)).

The legal posture of Belden’s claim to the W yoming Supreme Court involved

only the effect of the quoted testimony, but he now attempts to argue the

propriety of other testimony. Indeed, he does not take issue with any part of the

W yoming Supreme Court’s decision regarding the quoted testimony. Because

Belden’s habeas claim in this posture was not presented to the W yoming Supreme

Court, it is unexhausted. And because W yoming applies a procedural bar to

claims that could have been raised on direct appeal but were not, see W yo. Stat.

Ann. § 7-14-103(a), 3 we can reach the claim’s merits only if Belden

3
     Belden does not argue that W yoming’s procedural bar would not be an
adequate and independent ground sufficient to block his claim if he w ere to return
                                                                     (continued...)

                                         -13-
“demonstrate[s] cause and prejudice or a fundamental miscarriage of justice,”

Ham mon v. Ward, 466 F.3d 919, 925 (10th Cir. 2006); see also M oore v.

Schoeman, 288 F.3d 1231, 1233 n.3 (10th Cir. 2002). Belden does not attempt to

do so. Accordingly, we do not reach the merits of his claim. See Hawkins, 291

F.3d at 670.

                                          B.

      On appeal to the W yoming Supreme Court, Belden argued that the

prosecutor committed misconduct during closing argument by stating that the tw o

prior rape accusations showed Belden’s propensity to sexually assault w omen.

Belden relied on the following portion of the prosecutor’s argument:

      [F]inally, the evidence shows that in the past, the Defendant had had
      sexual intercourse with women and been accused of rape. It is our
      contention, Ladies and Gentlemen, that these facts point out one
      inescapable conclusion, that the Defendant sexually assaulted and
      murdered Nancy Lane.

ROA, Vol. 1, Doc. 8, Attachment A at 32 (emphasis from Belden’s state-court

brief); see also id. at 36-37. The W yoming Supreme Court concluded that Belden

had taken the quoted language out of context and that, when properly viewed, the

prosecutor w as not making a propensity argument. Belden, 73 P.3d at 1085-86.




3
 (...continued)
to state court. See W yo. Stat. Ann. § 7-14-103(b) (lifting the bar for (i) “evidence
which was not known or reasonably available to [the petitioner] at the time of a
direct appeal” or (ii) upon a state-court “finding that the petitioner was denied
constitutionally effective assistance of counsel on his direct appeal”).

                                         -14-
      Belden now claims that the W yoming Supreme Court unreasonably

determined the facts in light of the record. W e disagree. As noted by the court,

the challenged statements were made at the end of a summary of all the evidence

presented at trial and “referr[ed] not to the prior sexual assault accusations but to

all of the other facts [the prosecutor] had listed.” Id. at 1086. Belden has not

clearly and convincingly refuted the W yoming Supreme Court’s view of the

record.

                                          C.

      Belden also argued on appeal to the W yoming Supreme Court that the

prosecutor violated a stipulation with defense counsel. The stipulation provided

that “[c]ertain events occurred in the life of Nancy Lane which she did not write

about in her diary.” ROA, Vol. 10 at 1273. The defense agreed to the stipulation

to avoid the implication that Belden must have sexually assaulted Lane because

she did not write in her diary about any sort of intimate relationship with him.

Id., Vol. 7 at 627-28. The prosecution wanted the stipulation in order “to keep

out of evidence Lane’s history of multiple sex partners,” which the diary does not

relate. Aplt. Br. at 47 (quotation omitted); see also ROA, Vol. 7 at 625. The

court clerk read the stipulation to the jury at the close of evidence.

      According to Belden, the prosecutor violated the stipulation in his closing

argument when he said:




                                          -15-
             Please, Ladies and Gentlemen, take the time during your
      deliberations to examine [Lane’s diary] closely. . . . You will know
      that Nancy Lane was -- at the time of her death, she was involved
      with one fellow. She’d had a sexual interlude with that fellow earlier
      in the week of her death. That she was kind of flirting with another
      fellow . . . . You’ll find that she no more had a relationship with
      [Belden] than she had a relationship with the man in the moon
      because she was the type of person to put those things down.

Id., Vol. 10 at 1310 (emphasis added). The W yoming Supreme Court concluded

that the prosecutor did not violate the stipulation because “[t]here is nothing in

the stipulation that would prevent the prosecutor from arguing that if the victim

had an intimate relationship with Belden, that it would have been mentioned in

the diary.” Belden, 73 P.3d at 1089. M oreover, the court stated, “W e do not

think it is inconsistent for the prosecutor to agree that the victim did not write

everything in her diary while contending [that] an intimate relationship would be

one of the things that she would write about in her diary.” Id.

      W e do not entirely follow the W yoming Supreme Court’s reasoning. But

even if we were to conclude that the court unreasonably characterized the

prosecutor’s remark as not violating the stipulation, we cannot discern any effect

whatsoever on the trial. Specifically, defense counsel responded in closing

argument to the remark, focusing the jury on the stipulation and how it went

against the government’s case. Further, he invited the jury to “look at [the diary]

. . . w ith the idea that there are things that happened that aren’t in there,” ROA,

Vol. 10 at 1344, and soon proceeded to recount the names of men who had “slept



                                          -16-
with [Lane],” id. at 1346. Given that defense counsel not only used the

stipulation against the prosecution, but also skirted the stipulation’s purpose of

avoiding Lane’s sexual history, we discern neither fundamental unfairness nor the

deprivation of any specific constitutional right from the prosecutor’s closing-

argument remark.

                                          D.

      Belden further argued to the W yoming Supreme Court that the prosecutor

implied during closing argument that Belden had the burden of proving that the

sex with Lane was consensual in order to be found not guilty. The challenged

statement appears in italics at the end of the following quote:

      The evidence, I submit to you on behalf of the State of W yoming, is
      overw helming. The Defendant quits his job. He steals a truck, a
      truck similar to the one that’s seen in the vicinity of N ancy Lane’s
      house. Nancy Lane’s brutally murdered. She’s brutally raped. The
      Defendant’s semen is found in and around [Lane] and there is no
      evidence to suggest that she ever, ever, ever, ever consented to have
      sex with the Defendant.

ROA, Vol. 10 at 1312 (emphasis added). The W yoming Supreme Court rejected

Belden’s argument that the prosecutor was attempting to shift the burden of proof,

and determined instead that the prosecutor “was making an argument based upon

the trial evidence.” Belden, 73 P.3d at 1089. W e agree and see nothing

unreasonable in that determination. Cf. Beachum v. Tansy, 903 F.2d 1321, 1328

(10th Cir. 1990) (rejecting the petitioner’s burden-shifting argument on the basis

that the prosecutor was merely reciting the physical evidence that supported the

                                         -17-
victim’s testimony).

                                C ONCLUSION

      The judgment of the district court is AFFIRMED.

                                                Entered for the Court


                                                Stephen H. Anderson
                                                Circuit Judge




                                     -18-
