                                                                               FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                         UNITED STATES COURT OF APPEALS                    April 9, 2009
                                                                       Elisabeth A. Shumaker
                                      TENTH CIRCUIT
                                                                           Clerk of Court


 ANTHONY HEINEMANN,

           Petitioner-Appellant,
 v.                                                          Case No. 08-8028
 MICHAEL MURPHY, Warden,                             (D.C. No. 2:06-CV-00168-ABJ)
 Wyoming State Penitentiary; BRUCE A.                        (D. Wyoming)
 SALZBURG, Wyoming Attorney
 General,

           Respondents-Appellees.



                                   ORDER AND JUDGMENT*


Before BRISCOE, MURPHY, and GORSUCH, Circuit Judges.



       Petitioner Anthony Heinemann, a Wyoming state prisoner who is presently serving

a life sentence after conviction of sexual offenses involving minors, appeals from the

district court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. §

2254. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.




       *
        This order and judgment is not binding precedent, except under the doctrines of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 with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                             I

                                  Factual background

      The relevant underlying facts of this case were outlined in detail by the Wyoming

Supreme Court (WSC) in addressing Heinemann’s direct appeal:

         On May 20, 1997, four junior high school students were walking home
      from school. They encountered Heinemann, who was in a maroon car, in
      the parking lot of a video store. The four minors, A.T., a thirteen year-old
      female; Z.K., a twelve year-old male; and T.H. and T.T., both fourteen
      year-old females, either requested or were offered a ride by Heinemann.
      After asking the students if they liked to party, and receiving an affirmative
      answer from A.T., who said she liked tequila, Heinemann stopped at a
      liquor store where he purchased some tequila, wine coolers and peppermint
      schnapps. They then picked up some lemons, and proceeded to
      Heinemann’s apartment.

         At his apartment, they listened to music, and the students drank some of
      the alcoholic beverages. A.T. became intoxicated, and she went with Z.K.
      into the back bedroom. While they were out of the room, Heinemann asked
      T.H. and T.T. to play his version of strip poker in which the losers would
      remove clothing and possibly have sex. The two girls declined, even after
      Heinemann offered them twenty dollars to play. A.T., quite intoxicated,
      came out of the bedroom, and lost her balance while talking to a friend on
      the telephone. Heinemann held her up from behind, placed his hands under
      her shirt and brassiere, and rubbed her breasts until Z.K. told him to stop.

          The circumstances leading to the second charge occurred on October 16,
      1997. On that occasion, Heinemann offered a ride to A.G., a female high
      school student aged eighteen. A.G. was across the street from her high
      school smoking a cigarette. Heinemann, driving a red tone car, offered to
      take A.G. to buy more cigarettes. Instead, he drove to his apartment, and
      invited A.G. to come in for a little bit. Once inside, Heinemann mixed two
      alcoholic drinks, and offered one to A.G. When she declined, Heinemann
      tried to force A.G. to take the drink, and spilled it on her.

         Heinemann then proposed a card game, and told A.G. that if she won, he
      would take her back to school, but if he won, she would remove an article
      of clothing. A.G. reluctantly agreed. They each picked a card, and

                                            2
       Heinemann told A.G. that he had won. He told her she had to take off a
       piece of clothing, and when she balked, he forcibly removed her t-shirt.
       Heinemann then proposed that they play another hand, promising to return
       her shirt and take her back to school if she won. Heinemann declared
       himself the winner of the second game, and demanded A.G.’s pants, which
       he forcibly removed when she resisted again. He then suggested a third
       round of the card game, still promising to return A.G.’s clothing and take
       her back to school if she won. Predictably, Heinemann won again, and he
       demanded A.G.’s brassiere, which he forcibly removed when she resisted.

           Heinemann, after removing his own clothes, began kissing A.G.’s
       breasts, and told her he would use a condom. A.G. kicked Heinemann,
       dressed hastily, and attempted to leave the apartment. Heinemann grabbed
       her, and pulled her back, telling her she was not going anywhere. A.G. fell
       to the floor, hitting her head on a coffee table. She again attempted to
       leave, this time getting a few steps beyond the door, when Heinemann
       grabbed her hair, pulled her back into the apartment, and began choking
       her. He then apparently decided to end the assault, and offered to take A.G.
       back to school. Heinemann put his clothes back on, and at that point in
       time, a police officer, summoned by a neighbor, arrived.

Heinemann v. State, 12 P.3d 692, 694-95 (Wyo. 2000) (Heinemann I).

                             State court criminal proceedings

       The WSC, in Heinemann I, also recounted the ensuing state court criminal

proceedings that arose out of the above-outlined facts:

           The events of May 20, 1997, involving the four minors, resulted in
       Heinemann being charged in the District Court for the First Judicial
       District, in and for Laramie County, in Docket 24, No. 474, with one count
       of taking indecent liberties with a minor and one count of furnishing alcohol
       to minors. He entered pleas of not guilty to both counts. In response to a
       motion from Heinemann, the trial court ordered the State to give notice if it
       intended to introduce evidence under W.R.E. 404(b)[1]. Heinemann also
       filed a motion in limine, seeking to prohibit the State from introducing
       evidence of prior sexual assault allegations or convictions.

       1
        W.R.E. 404(b) refers to Wyoming Rule of Evidence 404(b), which is
substantially similar to Federal Rule of Evidence 404(b).

                                             3
   Heinemann’s assault on A.G. was addressed by charging him with one
count of attempted first-degree sexual assault and one count of third-degree
sexual assault in the District Court for the First Judicial District, in and for
Laramie County, in Docket 24, No. 491. He entered pleas of not guilty to
both counts. As in the other case, the trial court ordered the State to provide
notice of its intent to introduce evidence under W.R.E. 404(b). Heinemann
again filed a motion in limine to prevent the State from using evidence of
prior sexual assaults.

    In response to Heinemann’s motion in Docket 24, No. 474, the State
filed notice of its intent to introduce, as W.R.E. 404(b) evidence, five
separate instances of Heinemann’s prior bad acts:

          1. Evidence that, in 1988 in Colorado, the Defendant
       engaged in similar conduct as that described by A.T. with
       [S.L.], a sixteen (16) year old. [S.L.] was approached by the
       Defendant in his vehicle, was given a ride, was given alcohol,
       and was forced to perform sexual acts before he would take
       her home.

          2. Evidence that, in 1988 in Colorado, the Defendant
       engaged in similar conduct and use of force as that described
       by A.T. with [M.M], his roommate’s girlfriend. She was
       home alone with the Defendant when he turned off the light,
       came up behind her, shoved her into the door, pressed his
       body into hers, and attempted to kiss her neck. She pushed
       him away and ran upstairs to her bedroom. The defendant
       pursued her into the bedroom, grabbed her by the arm and
       pulled her sweater off, grabbing her breast in the process. He
       then pushed her down onto the bed where she was able to kick
       him in the stomach. He left for [a] moment, but returned and
       started pushing her around again. She was able to dial 911,
       but the Defendant hung up the phone before she could speak.
       [M.M.] then ran downstairs to use the phone in the kitchen,
       but the Defendant tackled her as she reached the phone.
       Police arrived shortly thereafter. Police found an open
       prophylactic on the coffee table that the Defendant intended
       to use.

          3. Evidence that, in May 1997, the Defendant engaged in
       similar conduct as that described by A.T. with [A.G.], an

                                       4
       eighteen (18) year old. [A.G.] was approached by the
       Defendant in his vehicle, was given a ride to his apartment,
       was offered alcohol, and forced to submit to sexual contact
       and attempted sexual intrusion.

          4. Evidence that, in 1995 in Cheyenne, Wyoming, the
       Defendant engaged in similar conduct as that described by
       A.T. with [R.F.], a seventeen (17) year old neighbor. He
       approached her and offered her alcohol if she would come to
       his apartment. When she refused and began to walk away, the
       Defendant grabbed her by the arm and pulled her towards
       him. She pulled away and left.

           5. Evidence that, in August in Cheyenne, Wyoming, the
       Defendant engaged in similar behavior as that described by
       A.T. with M.L., age fifteen (15). M.L. was walking her dog
       when the Defendant pulled up beside her in his vehicle and
       said hello. She said hi in return and kept on walking. The
       Defendant continued to drive along beside her waving a
       twenty (20) dollar bill at her. She then ran to a friend’[s]
       home. The Defendant continued to drive by the home of her
       friend until the friend’s mother yelled at him to leave the
       young girls alone.

   In response to Heinemann’s motion in Docket 24, No. 491, the State
gave notice of its intent to introduce the same evidence of Heinemann’s
prior sexual assaults, interchanging the assault on A.T. with the assault on
A.G.

   The State asserted that the acts were admissible under W.R.E. 404(b) to
show plan, preparation, intent, course of conduct, and absence of mistake or
accident. The trial court combined the hearing on Heinemann’s motions in
limine, but declined to rule at that time, saying that its ruling would depend
on events at trial.

    Heinemann’s trial in Docket 24, No. 474 began on March 16, 1998. The
trial court allowed the State to present evidence of four of the five prior bad
acts enumerated by the State. No evidence of the assault on M.M. was
offered, but evidence was presented regarding Heinemann’s conduct
involving M.L. The jury found Heinemann guilty on both counts.


                                       5
          Following Heinemann’s conviction in Docket 24, No. 474, the State
      filed notice, in Docket 24, No. 491 of its intent to seek sentence
      enhancement pursuant to [Wyoming’s habitual criminal statute,] Wyo. Stat.
      Ann. § 6-10-201 (Lexis 1999). In that case, the trial court issued an order
      stating that evidence of Heinemann’s conduct with M.L. was not
      admissible, but the other four prior bad acts were admissible. The trial
      began on June 3, 1998. The jury heard evidence of the assaults on S.L. and
      M.M., but the trial court ruled during the trial that it would not allow
      evidence concerning A.T. and R.F. The jury acquitted Heinemann of
      attempted first-degree sexual assault, but convicted him of third-degree
      sexual assault upon A.G.

         The trial court combined the sentencing proceedings in the two cases. In
      Docket 24, No. 474, the trial court sentenced Heinemann to six months
      confinement on the conviction for furnishing alcohol to a minor, and six to
      eight years for the immoral acts with a minor conviction. In Docket 24, No.
      491, the trial court imposed a life sentence without possibility of parole,
      pursuant to Wyo. Stat. Ann. § 6-2-306(d) [the habitual criminal statute].

Heinemann I, 12 P.3d at 695-97.

                               Heinemann’s direct appeal

      Heinemann, represented by the Wyoming Public Defender’s Office, appealed his

convictions and sentences to the WSC, raising the following three issues:

      1. Whether the inclusion of attempted sexual assault for sentencing
      enhancement via Wyo. Stat. Ann. § 6-3-306 was error?

      2. Whether the district court deprived him of his right to due process and a
      fair trial when it failed to establish 404(b) evidence by clear and convincing
      evidence?

      3. Whether his right to due process and a fair trial was violated by the
      admission of the 404(b) evidence?

      The WSC affirmed Heinemann’s convictions and sentences in a published opinion

issued on October 26, 2000. Heinemann I, 12 P.3d at 702. The United States Supreme


                                            6
Court subsequently denied Heinemann’s petition for writ of certiorari. Heinemann v.

Wyoming, 532 U.S. 934 (2001).

                          Heinemann’s state post-conviction efforts

       On January 15, 2002, Heinemann filed a petition for writ of review with the WSC

raising three issues: (1) whether he had effectively been denied his right to appeal his

convictions pursuant to Wyo. Stat. Ann. § 7-12-1012 as a result of the court reporter’s

failure to provide a complete transcript and the failure of his appellate counsel to notice

that the record on appeal was incomplete; (2) whether he had been deprived of his right to

the effective assistance of counsel on appeal; and (3) whether the interests of justice and

judicial economy required the WSC to permit him a new opportunity to appeal his

convictions. The WSC, on February 5, 2002, denied Heinemann’s petition. In doing so,

the WSC concluded that Heinemann’s claim of ineffective assistance of appellate counsel

should be pursued in accordance with Wyoming’s post-conviction relief statute. It also

noted that the state district court would be in a better position, in the first instance, to

determine which transcripts were omitted from Heinemann’s direct appeal.

       Heinemann, in accordance with the WSC’s suggestion, filed a petition for post-

conviction relief in state district court on February 11, 2002. In connection with that

petition, Heinemann sought to obtain a complete trial court transcript. After receiving


       2
        Section 7-12-101, entitled “Manner of appeal,” provides:
       A defendant may appeal his conviction in any criminal case in the manner
       provided by the Wyoming Rules of Appellate Procedure and the Wyoming
       Rules of Appellate Procedure for Courts of Limited Jurisdiction.

                                                7
additional transcripts, Heinemann, with the approval of the state district court, filed an

amended petition raising the following issues: (1) whether the absence of a complete

record on direct appeal amounted to a denial of effective assistance of appellate counsel;

(2) whether he was denied his confrontation right to cross-examine and impeach all

opposing witnesses; and (3) whether the prosecutor violated his due process rights by

improperly suppressing material exculpatory evidence.

       The state district court held a hearing on the matter and, on May 19, 2006, denied

Heinemann’s petition. On June 28, 2006, the WSC denied Heinemann’s petition for

review.

                         Heinemann’s federal habeas proceedings

       On June 30, 2006, Heinemann, represented by attorneys with the Defender Aid

Program at the University of Wyoming College of Law, filed a petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2254. The district court denied Heinemann’s petition on

February 25, 2008. On that same date, the district court entered judgment against

Heinemann.

       Heinemann filed a notice of appeal on March 24, 2008. On November 14, 2008,

this court issued an order granting Heinemann a certificate of appealability with respect to

five issues: (1) whether Heinemann’s due process rights were violated when his direct

appeal was litigated and decided without his appellate counsel or the WSC having access

to a complete record of the trial proceedings; (2) whether Heinemann’s appellate counsel

was ineffective for failing to acquire and review a complete record of the trial

                                              8
proceedings; (3) whether Heinemann’s due process and confrontation rights were violated

by the state trial court’s decision precluding him from cross-examining the state’s

juvenile witnesses concerning their prior contacts with law enforcement or juvenile

probation status; (4) whether Heinemann’s due process and confrontation rights were

violated by the state trial court’s decision prohibiting him from cross-examining A.T., the

victim of his indecent liberties with a minor conviction, regarding prior statements she

made to law enforcement officers about the crime; and (5) whether Heinemann’s due

process rights were violated when the state prosecutor withheld information which,

according to Heinemann, would have undermined the credibility of A.G., the victim of

the October 16, 1997 sexual assault.

                                              II

       Our review of Heinemann’s appeal is governed by the provisions of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Snow v. Sirmons, 474

F.3d 693, 696 (10th Cir. 2007). Under AEDPA, the standard of review applicable to a

particular claim depends upon how that claim was resolved by the state courts. Id.

       If a claim was addressed on the merits by the state courts, we may not grant federal

habeas relief on the basis of that claim unless the state court decision “was contrary to, or

involved an unreasonable application of, clearly established Federal law, as determined

by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an

unreasonable determination of the facts in light of the evidence presented in the State

court proceeding,” id. § 2254(d)(2). “When reviewing a state court’s application of

                                              9
federal law, we are precluded from issuing the writ simply because we conclude in our

independent judgment that the state court applied the law erroneously or incorrectly.”

McLuckie v. Abbott, 337 F.3d 1193, 1197 (10th Cir. 2003). “Rather, we must be

convinced that the application was also objectively unreasonable.” Id. “This standard

does not require our abject deference, . . . but nonetheless prohibits us from substituting

our own judgment for that of the state court.” Snow, 474 F.3d at 696 (internal quotation

marks omitted).

       If a claim was not resolved by the state courts on the merits and is not otherwise

procedurally barred, our standard of review is more searching. That is, because §

2254(d)’s deferential standards of review do not apply in such circumstances, we review

the district court’s legal conclusions de novo and its factual findings, if any, for clear

error. McLuckie, 337 F.3d at 1197.

                                              III

                          Insufficiency of record on direct appeal

       The record presented to the WSC in connection with Heinemann’s direct appeal

was missing five sections: a pretrial motion to suppress Rule 404(b) evidence; the

transcript of the voir dire proceedings; an addendum to volume I of the trial transcript that

would have contained discussion regarding the extent to which defense counsel could

cross-examine the juvenile witnesses about prior contacts with law enforcement; an

addendum to volume II of the trial transcript that would have contained discussion

regarding defense counsel’s desire to question one of the juveniles about her interview

                                              10
tape with police; and the verdict and discharge of the jury. Heinemann argues that, as a

result of these missing sections, his right to due process on direct appeal was violated.

       a) Clearly established federal law

       Heinemann identifies three cases as providing the clearly established federal law

applicable to his claim: Griffin v. Illinois, 351 U.S. 12 (1956), Mayer v. City of Chicago,

404 U.S. 189 (1971), and Evitts v. Lucey, 469 U.S. 387 (1985).

       In Griffin, two indigent criminal defendants asked an Illinois state court to provide

them with transcripts of their trial proceedings free of cost. 351 U.S. at 13. Under

Illinois law, the state paid for trial transcripts only in capital cases and the court therefore

denied their request. Id. at 15. The Supreme Court ruled that the state’s refusal to

provide indigent defendants with trial transcripts deprived the defendants of adequate

appellate review. Id. at 18. Because the Illinois court system gave meaningful appellate

review to those defendants who could afford transcripts but not to those who could not,

the Supreme Court held that the state scheme violated the right of indigent defendants to

equal protection. Id. at 19-20.

       Nearly thirty years later, in Evitts, the Supreme Court explained that the state’s

denial of free transcripts in Griffin “violated due process principles because it decided the

appeal in a way that was arbitrary with respect to the issues involved.” 469 U.S. at 404.

As a result of Griffin and Evitts, it is now settled that if states provide transcripts for

appeals from convictions in criminal cases, the due process and equal protection clauses

of the Fourteenth Amendment require that the right shall not be limited to those who are

                                               11
able to afford the expense of an appeal.

       In applying this standard, the Supreme Court has noted that criminal defendants

must be afforded a “record of sufficient completeness to permit proper consideration of

their claims.” Draper v. Washington, 372 U.S. 487, 499 (1963). “A ‘record of sufficient

completeness,’” the Supreme Court has explained, “does not translate automatically into a

complete verbatim transcript.”3 Mayer, 404 U.S. at 194.

       b) The state district court’s rejection of Heinemann’s claim

       Heinemann raised this same claim, i.e., that his due process rights were violated as

a result of the missing portions of his trial transcript, in his petition for state post-

conviction relief. The state district court, in analyzing Heinemann’s claim, reviewed

Evitts, Mayer, and Britt v. North Carolina, 404 U.S. 226 (1971). In Britt, the defendant’s

three-day murder trial in a state court ended in a hung jury and a mistrial. The defendant

was tried a month later and convicted. The defendant was indigent, and in the interim

between trials asked for a free transcript of the first trial. The request was denied. The

Supreme Court, after noting that Griffin would generally require the provision of a

transcript, affirmed because the record did not reveal sufficient need for the transcript and

the defendant’s counsel had an available alternate device which was the substantial




       3
         To be sure, however, the Supreme Court stated in Mayer that a full transcript
must still be provided whenever it “is necessary to assure the indigent as effective an
appeal as would be available to the defendant with resources to pay his own way.” 404
U.S. at 195.

                                                12
equivalent of a transcript.4 In the course of its decision, the Supreme Court held that two

factors were relevant to the determination of need: (1) the value of the transcript to a

defendant in connection with the trial for which it is sought, and (2) the availability of

alternative devices that would fulfill the same function as a transcript. 404 U.S. at 227.

       The state district court ultimately concluded that “[t]he unavailability of portions

for appeal did not prejudice [Heinemann’s] direct appeal and” that “the overall record

d[id] not . . . indicate the probability of a miscarriage of justice.” App. at 90. More

specifically, the state district court concluded it was “highly unlikely” “[t]hat there was a

miscarriage of justice attributable to the state of the record” at the time of Heinemann’s

direct appeal. Id.

       c) Did the state district court unreasonably apply clearly established federal law?

       We are not persuaded that the state district court’s resolution of this claim was

contrary to, or an unreasonable application of, clearly established Supreme Court

precedent. To begin with, there is no indication that the missing portions of Heinemann’s

direct appeal record were the result of indigency, as was the case in Griffin. Neither

could there be; Heinemann has never claimed indigency. In fact, the record indicates that

the missing portions were attributable to the fact that Heinemann’s trial was “taken down



       4
         Specifically, the Court noted that the petitioner in Britt “could have obtained
from the court reporter far more assistance than that available to the ordinary defendant,”
because “[t]he trials of th[e] case took place in a small town where . . . the court reporter
was a good friend of all the local lawyers,” “was reporting the second trial,” and “would
at any time have read back to counsel his notes of the mistrial, well in advance of the
second trial, if counsel had simply made an informal request.” 404 U.S. at 229.

                                              13
and transcribed by a substitute court reporter arranged by the official reporter.” App. at

87. Further, Heinemann has failed entirely to establish that the missing portions of the

record had any impact on the WSC’s resolution of the issues that were actually presented

on direct appeal. Finally, to the extent that Heinemann contends that the missing portions

of the record could have given rise to meritorious issues on direct appeal, we conclude

that contention is more properly considered in the context of his ineffective assistance of

appellate counsel claim.

                           Ineffective assistance of appellate counsel

       Heinemann next contends that his counsel on direct appeal was ineffective for

failing to notice the missing portions of the record and acquire a complete trial transcript.

According to Heinemann, “appellate counsel’s woeful performance calls into serious

question any judgment she exercised in selecting issues to include in the brief or

judgments she might have exercised if she had the complete record.” Aplt. Br. at 19.

Indeed, Heinemann suggests that appellate counsel “failed to bring several claims . . .

which had a reasonable probability to alter the outcome of the appeal.” Id. at 31. In

particular, Heinemann contends that “the factual bases for claims II, III and IV of [his

federal] habeas petition were” contained in the missing portions of the direct appeal

record and “[t]hese claims, if they had been raised, had at least a reasonable probability to

alter the outcome of the appeal.” Id. at 30.

       a) Clearly established federal law

       The “clearly established federal law” applicable to this claim is the Supreme


                                               14
Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the

Supreme Court held that “[a] convicted defendant’s claim that counsel’s assistance was so

defective as to require reversal of a conviction or death sentence has two components.”

466 U.S. at 687. “First,” the Court noted, “the defendant must show that counsel’s

performance was deficient.” Id. “This requires showing that counsel made errors so

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the

Sixth Amendment.” Id. “Second,” the Court noted, “the defendant must show that the

deficient performance prejudiced the defense.” Id. “This requires showing that counsel’s

errors were so serious as to deprive the defendant of a fair trial, a trial whose result is

reliable.” Id. “Unless a defendant makes both showings,” the Court held, “it cannot be

said that the conviction or death sentence resulted from a breakdown in the adversary

process that renders the result unreliable.” Id.

       b) The state district court’s rejection of Heinemann’s claim

       Heinemann first raised his ineffective assistance claim in his petition for state post-

conviction relief. The state district court, citing Strickland and several other cases,

rejected the claim on the merits. In doing so, the state district court concluded that “there

[wa]s not a reasonable probability that, but for appellate counsel’s failure to notice the

incompleteness of the record, the result of the proceedings would have been different.”

App. at 99. In reaching this conclusion, the state district court considered and rejected as

lacking in merit the potential issues identified by Heinemann in the missing portions of

the direct appeal record. Thus, the state district court concluded that Heinemann had


                                               15
failed to satisfy the prejudice prong of Strickland.

       c) Was the state district court’s decision contrary to Strickland?

       After examining the record on appeal, we conclude that the state district court’s

decision was neither contrary to, nor an unreasonable application of, Strickland.

Assuming, for purposes of argument, that the performance of Heinemann’s appellate

counsel was deficient to the extent she failed to notice and obtain the missing portions of

the record, we are unpersuaded that Heinemann was prejudiced by those deficiencies.

Although Heinemann asserts that obtaining the missing portions of the record would have

allowed his appellate counsel to assert on direct appeal three of the substantive issues that

he later asserted in his federal habeas petition, we conclude that all three of those issues

were identifiable from the portions of the record actually available to Heinemann’s

appellate counsel.5 More importantly, we conclude that none of the three issues now

identified by Heinemann were so clearly meritorious that they warranted inclusion among

the issues asserted on direct appeal. See Cargle v. Mullin, 317 F.3d 1196, 1202 & n.4


       5
          For example, Heinemann argues that, because the record on direct appeal was
missing the transcript of the proceeding wherein the trial court limited defense counsel’s
ability to cross-examine the juvenile defendants about their prior contacts with law
enforcement, his appellate counsel could not have made an informed decision whether to
raise the issue. However, the record on direct appeal referenced the trial court’s ruling
that defense counsel could not cross-examine T.T. regarding T.T.’s prior contact with law
enforcement. See Supp. App. at S000015-16 (Tr. Transcript, March 16, 1998 at 60-61)
(statement from the prosecutor that defense counsel was “dangerously close to talking
about her prior contacts with law enforcement and I think you specifically said that it
wasn’t admissible”). The state district court concluded in addressing Heinemann’s
petition for post-conviction relief, and we agree, that this reference in the direct appeal
record was sufficient to have alerted Heinemann’s appellate counsel to the issue and to
have allowed the issue to be presented on direct appeal.

                                              16
(10th Cir. 2003) (discussing how strong an omitted issue must be to warrant a conclusion

that a defendant was prejudiced by counsel’s failure to assert it on appeal). Indeed, we

declined to grant Heinemann a COA in order to challenge the district court’s rejection of

one of those claims (Claim IV of his federal habeas petition, in which he asserted a denial

of his due process and confrontation rights resulting from the state trial court’s decision to

admit a police officer’s preliminary hearing testimony recounting statements made to him

by a juvenile witness regarding a prior bad act by Heinemann), and, as outlined in greater

detail below, we conclude the other two claims lack merit.

                   Limitation on cross-examination of juvenile witnesses

       Heinemann contends that his due process and confrontation rights were violated by

the state trial court’s decision precluding him from cross-examining the state’s juvenile

witnesses, particularly T.T., concerning their prior contacts or juvenile probation status in

order to show bias, lack of credibility, or motivation to lie.

       a) Clearly established federal law

       Heinemann identifies Davis v. Alaska, 415 U.S. 308 (1974), as providing the

“clearly established federal law” applicable to this claim. In Davis, the Supreme Court

“granted certiorari . . . to consider whether the Confrontation Clause requires that a

defendant in a criminal case be allowed to impeach the credibility of a prosecution

witness by cross-examination directed at possible bias deriving from the witness’

probationary status as [a] juvenile delinquent when such an impeachment would conflict

with a State’s asserted interest in preserving the confidentiality of juvenile adjudications


                                              17
of delinquency.” 415 U.S. at 309. In the case before it, the prosecution’s key witness

was an individual who, both at the time of trial and at the time of the events he testified

about, “was on probation by order of a juvenile court after having been adjudicated a

delinquent for burglarizing two cabins.” Id. at 311. Defense counsel sought to cross-

examine this witness regarding his juvenile adjudication, not as a general impeachment of

his character, but rather “to show specifically that at the same time [he] was assisting the

police in identifying petitioner he was on probation for burglary,” and thus “acted out of

fear or concern of possible jeopardy to his probation.” Id. The trial court, however,

granted the prosecution’s motion for a protective order, relying on an Alaska statute that

placed strict limitations on the admissibility in court of an “adjudication, order, or

disposition of a juvenile case . . . .” Id. at 311 n.1. On direct appeal, the Alaska Supreme

Court affirmed the petitioner’s convictions, “concluding . . . it did not have to resolve the

potential conflict in th[e] case between a defendant’s right to a meaningful confrontation

with adverse witnesses and the State’s interest in protecting the anonymity of a juvenile

offender since [its] reading of the trial transcript convince[d] [it] that counsel for the

defendant was able adequately to question the youth in considerable detail concerning the

possibility of bias or motive.” Id. at 314-15 (internal quotation marks omitted).

       The United States Supreme Court disagreed with the Alaska Supreme Court’s

“interpretation of the Confrontation Clause and . . . reverse[d].” Id. at 315. In doing so,

the Court noted that “[c]ross-examination is the principal means by which the

believability of a witness and the truth of his testimony are tested,” and that “[o]ne way of


                                               18
discrediting the witness is to introduce evidence of a prior criminal conviction of that

witness.” Id. at 316. Further, the Court noted that “[a] more particular attack on the

witness’ credibility is effected by means of cross-examination directed toward revealing

possible biases, prejudices, or ulterior motives of the witness as they may relate directly

to issues or personalities in the case at hand.” Id. Based upon these principles, the Court

concluded that “[t]he claim of bias which the defense sought to develop was admissible to

afford a basis for an inference of undue pressure because of [the witness’] vulnerable

status as a probationer,” id. at 317-18, and it rejected “the Alaska Supreme Court’s

conclusion that the cross-examination that was permitted defense counsel was adequate to

develop the issue of bias properly to the jury.” Id. at 318. Further, the Court concluded

“that the right of confrontation” in this setting “[wa]s paramount to the State’s policy of

protecting a juvenile offender” because “[w]hatever temporary embarrassment might

result to [the witness] or his family by disclosure of his juvenile record – if the

prosecution insisted on using him to make its case – [wa]s outweighed by petitioner’s

right to probe into the influence of possible bias in the testimony of a crucial

identification witness.” Id. at 319.

       b) The state district court’s rejection of Heinemann’s claim

       Heinemann first raised this issue in his petition for post-conviction relief. The

state district court rejected it on the merits, stating, in pertinent part:

         There is a procedure commonly followed by this Court to determine the
       admissibility of records which are statutorily confidential, as authorized by
       Gale v. State, 792 P.2d 570 (Wyo. 1990). The procedure is for counsel to


                                                19
       subpoena the records. On motion to quash the subpoena the Court orders
       the records to be delivered for in-camera inspection. If the Court is satisfied
       upon such inspection that any of the material in the records is material then
       defense counsel are entitled to it. At no time did the defense attempt to
       subpoena the Juvenile Court records, if there are such records, and therefore
       there was no in-camera inspection or ruling on the materiality of any
       records.

          The transcripts of the pretrial motions and some during the trial are
       complete and contain no indication of any defense motion for access to the
       witnesses’ Juvenile Court records.

App. at 94.

       c) Was the state district court’s decision contrary to Davis?

       We readily conclude that the state district court’s decision was neither contrary to,

nor an unreasonable application of, the Supreme Court’s decision in Davis. Although the

state district court did not directly cite to the Supreme Court’s decision in Davis, it did

cite to the Wyoming Supreme Court’s decision in Gale, which itself discussed the

requirements on cross-examination imposed by Davis and its progeny. Most importantly,

the state district court properly distinguished Heinemann’s case from Davis on the

grounds that Heinemann’s counsel made no attempt prior to trial to obtain the juvenile

records (if any) of the prosecution’s witnesses, and thus Heinemann had no concrete basis

on which to claim, and the state trial court had no concrete basis on which to conclude,

that cross-examination of the witnesses regarding their juvenile histories (if any) would

have been potentially fruitful.

       It is also worth mentioning, as the state district court did in a later portion of its

order denying Heinemann’s petition for post-conviction relief, that a review of the


                                               20
transcript of T.T.’s cross-examination indicates that, when the prosecution objected to

defense counsel possibly questioning T.T. regarding “her prior contacts with law

enforcement,” Aplee. App. at 15, defense counsel stated, “I don’t want to get into the

records. I want to get into their awareness of talking with officers and ability to lie with

officers or those kind of things.” Id. at 16. In turn, the state trial court allowed defense

counsel to pursue this very line of questioning with T.T., id. at 16-17, and T.T. admitted

she had spoken with law enforcement officers before and was aware that it was a crime to

provide them with false information. Id. at 15-17. Even aside from defense counsel’s

failure to subpoena the witnesses’ juvenile records, these facts render Heinemann’s case

factually distinguishable from Davis.

                           Limitation on cross-examination of A.T.

       Heinemann asserts that his due process and confrontation rights were violated

when the state trial court prohibited him from cross-examining A.T., the victim of his

indecent liberties with a minor conviction, about prior statements she made to law

enforcement officers regarding the alleged incident that gave rise to the indecent liberties

with a minor conviction.

       a) Clearly established federal law

       Heinemann identifies Davis and Douglas v. Alabama, 380 U.S. 415 (1968), as

providing the “clearly established federal law” applicable to this claim. In Douglas, the

Supreme Court “decide[d],” for the first time, “that the Confrontation Clause of the Sixth

Amendment is applicable to the States.” 380 U.S. at 418. Other than the applicability of


                                              21
that basic holding to Heinemann’s case, since Heinemann was tried in state court, the

facts of Douglas are materially distinguishable and thus not worth repeating here.

       b) The state district court’s rejection of Heinemann’s claim

       Heinemann first raised this claim in his petition for state post-conviction relief.

The state district court denied the claim on the merits, stating:

           The victim’s testimony was attacked by defendant on the grounds that
       she audaciously lied to the police and others immediately after the incident,
       which she freely admitted. She apparently gave another, recorded,
       statement the following day in which she continued some, if not all, of her
       untrue statements. It is equally clear, however, that the cross-examination
       of [A.T.] together with the testimony and cross-examination of the other
       witnesses amply and conclusively demonstrated to the jury that all of the
       minors lied to the police when first questioned, but later told the truth, they
       claimed, consistent with their trial evidence when they realized that the
       police knew that they were lying. It is clear in the record that the defendant
       successfully put before the jury the fact that in this next-day statement
       [A.T.] was able to recall some things which she professed an inability to
       recall at trial. The testimony of police officer Glenda Frank confirmed it. It
       was repeatedly and forcefully put to the jury’s attention in both cross-
       examination and in argument that the minors lied and that [A.T.] especially
       blatantly lied claiming that she had been raped. There were also, as noted,
       discrepancies among the recollections of the several minors who were
       witnesses. These discrepancies were thoroughly developed by the defense.

          In view of the above, it scarcely seems material that the Court might
       have made some previous ruling concerning [A.T.]’s recorded statement to
       the police. The essence of it is that she initially lied to the police and to the
       medical personnel, she professed an inability to recall the critical incident in
       her trial testimony, and that assertion on her part was attacked by the
       defense as being inconsistent with the fact that in her next-day statement
       she recalled more than she claimed to recall at trial. It’s difficult to see how
       those relevant facts could have been any better demonstrated or elaborated
       upon than they actually were.

App. at 92-93.



                                              22
       c) Was the state court’s decision contrary to Davis or Douglas?

       Before assessing the state district court’s resolution of this issue, we pause to

briefly review the events relevant to this issue that transpired during Heinemann’s trial.

On direct examination by the prosecutor, A.T. testified that she and her friends

encountered Heinemann, went to his apartment, and began to drink alcohol. A.T. testified

that, after drinking some alcohol, the next thing she remembered was waking up in the

hospital. Aplee. Supp. App. at 66. At the outset of cross-examination, defense counsel

asked A.T, “[Y]our testimony is you cannot recall anything that happened in that

apartment, basically?” Id. at 67. A.T. responded, “Yeah.” Id. Defense counsel then

asked A.T. if she recalled speaking with Detective Glenda Frank after the incident. Id.

A.T. responded that she did not recall that at all. Id. Defense counsel then requested a

recess so he could “set up the interview tape between [A.T.] and Ms. Frank . . . so we can

talk about some of the things that [A.T.] did tell the officer on that interview.” Id. at 69.

The prosecutor objected, arguing that A.T. “testified she doesn’t remember talking to the

officer,” id., so it would not be useful “to listen to the [interview] tape.” Id. at 70. The

state trial court sustained the objection, stating, “Well, she’s testified that she has no

recollection of it [the interview], so the objection is sustained.” Id. The state trial court

did, however, acknowledge defense counsel’s right to question Detective Frank about the

interview and A.T.’s answers. Id. At the conclusion of the cross-examination of A.T.,

defense counsel renewed his request to play for the jury the interview tape between A.T.

and Detective Frank. App. at 152. The state trial court ultimately granted the request,


                                               23
agreeing with the prosecutor that the tape was admissible under Wyoming Rule of

Evidence 803(5) as a recorded recollection. Id. at 152-53, 159. The state trial court

refused, however, to allow defense counsel to further cross-examine A.T. after the tape

was played. Id. at 164.

       After the jury heard the tape of Detective Frank’s interview with A.T., the

prosecution presented the testimony of Detective Frank. On direct examination, Frank

testified that she did not attempt to interview A.T. at the hospital immediately after the

incident because A.T. “was too intoxicated.” Aplee. Supp. App. at 97. Frank testified,

however, that she later conducted a taped interview with A.T. Id. at 100. On cross-

examination, Frank testified that A.T. had told another officer after the incident (but prior

to Frank’s interview with her) that “she had been forced to drink and raped by a man

named Tony.” Id. at 113-14. Later during cross-examination, Frank testified that she

spoke with A.T. “and she didn’t recall what had happened.” Id. at 117. Frank

acknowledged that A.T. had informed a doctor at the hospital immediately after the

incident that “she was raped vaginally and rectally.” Id. at 118. Frank also

acknowledged that A.T.’s responses during her interview were “a lot more detailed” than

her testimony in court. Id. at 130.

       These facts clearly confirm the state district court’s observations and, in our view,

firmly establish that the state district court’s rejection of Heinemann’s post-conviction

claim for relief was neither contrary to, nor an unreasonable application of, either Davis

or Douglas. Although the state trial court sustained the prosecution’s objection to defense


                                             24
counsel attempting to impeach A.T. by playing her interview tape with Detective Frank,

we are doubtful that this ruling was improper, given A.T.’s testimony that she did not

recall speaking with Detective Frank. Moreover, even assuming the ruling was erroneous

and thereby violated Heinemann’s Sixth Amendment confrontation rights, we are

persuaded the error was harmless beyond a reasonable doubt because the audiotaped

interview between A.T. and Detective Frank was played for the jury, and defense counsel

was able to fully cross-examine Detective Frank regarding A.T.’s post-incident

statements.6 See Brecht v. Abrahamson, 507 U.S. 619, 653 (1993) (recognizing that

“Confrontation Clause violations are subject to harmless-error review”).

                                     Brady violation

       Lastly, Heinemann contends that his due process rights were violated when the

prosecutor withheld information which, he contends, would have undermined the

credibility of witness A.G., who testified regarding a W.R.E. 404(b) incident. This

information, Heinemann asserts, indicated that A.G. “previously had made rape

allegations against another man only to later admit that she made them up.” Aplt. Br. at

46.

       a) Clearly established federal law

       Heinemann identifies Brady v. Maryland, 373 U.S. 83 (1963) and its progeny as

the “clearly established federal law” applicable to his claim. In Brady, the Court held


       6
        Although the Supreme Court in Davis concluded that the infringement on the
defendant’s confrontation rights in that case was not harmless, the facts of Davis are
materially distinguishable from Heinemann’s case.

                                            25
“that the suppression by the prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.” Id. at 87.

       b) The state district court’s rejection of Heinemann’s claim

       Heinemann first raised this claim in a motion for new trial filed with the state trial

court. The state trial court rejected the claim on the merits, stating as follows:

           One of the 404(b) witnesses [at trial] was [A.G.,] a seventeen-year old
       female who was also the victim in another offense of which defendant was
       later convicted (Docket 24-491) in a jury trial after the one at issue here.
       Her testimony in the later trial was essentially the same as her 404(b)
       testimony in this case.

          In the course of the later trial it developed, as discovered during defense
       counsel’s preparations for trial, that the witness in question had on a prior
       occasion reported to the Laramie County Sheriff’s Office that she had been
       sexually assaulted. The investigating Sheriff’s deputies having some
       familiarity with the young woman and looking into her allegations, believed
       them to be unsubstantiated and say that she so admitted. Because of this
       determination the Sheriff’s office did not convey any information about the
       reported incident to the District Attorney’s office.

          Because neither the District Attorney or defense counsel knew of the
       incident, it did not come to light in the indecent liberties trial. But,
       defendant learned of it and informed the District Attorney of it prior to the
       second trial. Therefore, the defense has raised the issue by way of motion
       for new trial under Rule 33, W.R.Cr.P.

          Defendant claims the nondisclosure to him of the accusation and its
       apparent falsity require a new trial or dismissal on the authority of Brady v.
       Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963) and Engberg v. State, 820
       P.2d 70 (Wyo. 1991). The right of the defendant to be advised of all
       exculpatory evidence, including impeachment evidence, as a matter of due
       process and the corresponding obligation of the state to make disclosure are
       well settled and not disputed here. The defendant also cites Smith v.
       Secretary, 50 F.3d 801 (10th Cir. 1995) and other cases that the state’s good


                                              26
faith is not relevant. In this case, counsel concedes that the District
Attorney did not know of the incident, having not been informed of it by the
Sheriff’s Office, until he was informed by the defense attorney. But he
argues that the state, including the Sheriff’s office, has an affirmative duty
to disclose. Nevertheless, the information in this case was not suppressed
by the state in any but a very constructive way. That is, only if mere
inadvertent nondisclosure is deemed to be suppression, was there
suppression.

   The parties agree that under the cases, including Spencer v. State, 925
P.2d 994 and Relish v. State, 860 P.2d 455, the movant here in order to
prevail on the motion must show that (1) the prosecution suppressed
evidence; (2) the evidence would have been favorable to him; and (3) that
the evidence was material. As indicated above, the evidence is that the
information was not suppressed but was not disclosed by the state.

   The information in question here was favorable to the defendant as it
went to the credibility of a “404(b)” witness, even though it’s true as argued
by the state that the witness’s specific testimony at trial was not seriously
disputed. The favorability is present but marginal. The Court recognizes
that, as the defendant argues, the facts were such that the state’s case was
not powerful on the indecent liberties count. But the defendant’s argument
was that if he touched the victim’s breasts it was inadvertent when he
prevented her falling in her state of intoxication. His motive and intent
were principally at issue and the witness’s testimony went to those
elements.

    The cases cited by the parties and particularly those cited by [defense
counsel] on the third page of his memorandum concern the element of
materiality. In this case, as indicated above, the factual issue was
principally, if the defendant touched the victim as alleged, was it with the
requisite intent for an indecent liberties conviction? There was much
evidence on this issue with which the jury could have made the
determination, including the entire context; young people taken to the
apartment, alcohol supplied, “strip-poker” started, all by an adult, a stranger
to the young people. [A.G.]’s 404(b) testimony also went to that issue, but
it seems highly improbable that the additional cross-examination of her on
the prior rape accusation would alter the jury’s verdict. Hence, while the
evidence was relevant and favorable to the defendant, it was not material in
the sense required.



                                      27
App. at 63-64.

       Heinemann did not directly appeal the state trial court’s denial of his motion for

new trial. Instead, he reasserted the issue in his petition for state post-conviction relief.

The state district court did not address the claim in denying Heinemann’s petition.7

       c) Was the state trial court’s decision contrary to Brady?

       We conclude that the state trial court’s ultimate conclusion was neither contrary to,

nor an unreasonable application of, Brady. The state trial court’s decision properly

identified Brady as the controlling precedent, and likewise correctly identified the specific

requirements a criminal defendant must satisfy in order to establish a Brady violation. As

for its analysis of those requirements, the state trial court, which was intimately familiar

with the evidence presented against Heinemann and the likely impact of any exculpatory

evidence, reasonably concluded that the exculpatory evidence now pointed to by

Heinemann was not material.8 See Youngblood v. West Virginia, 547 U.S. 867, 870

(2006) (noting that evidence is material, for purposes of Brady, “if there is a reasonable


       7
          Respondent argued below that the claim was procedurally barred, but the federal
district court concluded that Heinemann had established cause, i.e., ineffective assistance
of appellate counsel, for failing to raise it on direct appeal. Although we question
whether this conclusion was correct, respondent does not argue, and thus appears to have
waived for purposes of appeal, the issue of procedural bar.
       8
        We do take issue with the state trial court’s suggestion that an inadvertent
nondisclosure might not constitute “suppression” for Brady purposes. In Strickler v.
Greene, 527 U.S. 263, 288 (1999), the Supreme Court made clear that, “under Brady, an
inadvertent nondisclosure has the same impact on the fairness of the proceedings as
deliberate concealment.” Because, however, the state trial court simply assumed that the
prosecution had suppressed the evidence and proceeded to properly analyze the
materiality issue, we find no basis for granting federal habeas relief on this claim.

                                              28
probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different”). As noted by the state trial court, it appears

highly doubtful, given the other evidence presented by the prosecution, that the defense’s

cross-examination of A.G., a “WRE 404(b)” witness, would have altered the outcome of

the trial. Thus, Heinemann has failed to establish his entitlement to federal habeas relief

on the basis of his Brady issue.

       AFFIRMED.
                                                  Entered for the Court


                                                  Mary Beck Briscoe
                                                  Circuit Judge




                                             29
