                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       September 22, 2006
                                 TENTH CIRCUIT                         Elisabeth A. Shumaker
                            __________________________                     Clerk of Court

 GARY GENE CAPSHAW ,

          Petitioner-A ppellant,

 v.                                                        No. 05-8061
                                                          (D. W yoming)
 M ICHAEL M URPH Y, Acting W arden,                (D.Ct. No. 03-CV-258-CAB)
 W yoming State Penitentary; and
 PA TRICK J. CRANK, Attorney
 General, State of Wyoming,

          Respondents-Appellees.
                        ____________________________

                              OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




      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          This order and judgment is not binding precedent except under the doctrines of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. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       Gary G. Capshaw, a state prisoner appearing pro se, 1 filed a petition for

writ of habeas corpus, pursuant to 28 U.S.C. § 2254, asserting myriad claims.

The federal district court denied relief and subsequently denied Capshaw’s motion

for a certificate of appealability (COA). Capshaw appealed, again requesting a

COA. His request raised several issues, 2 but fewer than he asserted in the district

court. W e granted a limited COA and ordered briefing on one issue: whether the

dismissal of Capshaw’s state post-conviction petition for failure to prosecute is an

independent and adequate state procedural ground resulting in a default of his

claim s. A fter consideration of the parties’ briefs and a more complete record, w e

REVERSE and REM AND.

I. Background:

           The parties are familiar with the underlying facts; they will not be fully




       1
        We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
       2
         In addition to the application of the procedural bar at issue in this case, Capshaw
reasserted five of the claims he presented to the district court: 1) trial counsel was
ineffective for failing to challenge evidence obtained by an allegedly illegal search and
seizure, 2) trial counsel violated his attorney-client privilege by turning over confidential
legal materials concerning his case to the prosecution, 3) appellate counsel was
ineffective for failing to raise an ineffective assistance of trial counsel claim on appeal, 4)
Chief Justice William U. Hill of the Wyoming Supreme Court reviewed Capshaw’s
appeal after previously serving as Wyoming Attorney General and performing work
related to Capshaw’s case, and 5) Chief Justice Hill used information obtained while he
was Wyoming Attorney General to deny Capshaw’s appeal.

                                              -2-
restated. 3 According to the limited record before us, Capshaw filed his state post-

conviction petition on December 28, 2001. W yoming filed a Combined Answer

and M otion to Dismiss the petition on January 28, 2002, which was followed by

Capshaw’s response to the motion to dismiss filed on February 7, 2002.

Apparently, the case sat for almost seventeen months w ithout any activity until

Capshaw filed a M otion for Leave to Amend Petition for Post-Conviction Relief

on July 1, 2003, which was denied on July 13, 2003. On July 25, 2003, Capshaw

filed a M otion to Reconsider Leave to Amend, followed by a M otion to Expedite

on September 30, 2003. W yoming filed a M otion to Submit its Pending M otion

to Dismiss on October 3, 2003, after which the state trial court conducted a

hearing on October 17, 2003. On October 21, 2003, the state trial court issued an

Order Following Hearing in which it granted Capshaw’s motion for

reconsideration for leave to amend, placed his M otion to Expedite “under

advisement,” and stated it would “proceed to decide the State’s M otion to D ismiss

Petition for Post Conviction Relief without further submittals or hearing.”



       3
         Capshaw challenges his Wyoming conviction for conspiracy to sell
methamphetamine that culminated in Capshaw v. Wyoming, 11 P.3d 905 (Wyo. 2000).
This is to be distinguished from his challenge to a separate drug conviction culminating in
Capshaw v. Wyoming, 10 P.3d 560 (Wyo. 2000), for which we affirmed the denial of a
habeas petition. See Capshaw v. Abbott, 100 Fed. Appx. 799 (10th Cir. 2004)
(unpublished). Capshaw also filed a third habeas petition contesting an escape charge, as
well as a § 2241 petition challenging a prison lock-down. See Capshaw v. Abbott, 04-
CV-62 (D. Wyo. 2005) (unpublished), appeal dismissed by, Capshaw v. Abbott (No. 05-
8033) (10th Cir. Jul. 26, 2005); Woodruff v. Everett, 43 Fed. Appx. 244 (10th Cir. 2002)
(unpublished).

                                            -3-
(Appellee’s App. Exh. E at 2.) On October 29, 2003, it issued an order

dismissing Capshaw’s petition, stating that after the State’s motion to dismiss and

Capshaw’s response to the motion were filed:

       no action of record whatsoever was taken towards disposition of the
       case for over fifteen (15) months, . . . there were no filings, no entries
       of record, no requests for setting, or other action undertaken tow ard
       disposition of the pending Petition for Post Conviction Relief . . . [.]
       Rule 203(c) of the Uniform Rules for the District Courts provides that
       cases on the docket in which no substantial and bona fide action of
       record towards disposition has been taken for ninety (90) days are
       subject to dismissal for lack of prosecution, and . . . accordingly, the
       Petition for Post Conviction Relief filed December 28, 2001, should be
       dismissed for lack of prosecution.

(R . Doc. 18 at 6.)

       Following an unsuccessful request to the W yoming Supreme Court for

review, Capshaw filed a petition for w rit of habeas corpus pursuant to 28 U.S.C. §

2254. In federal district court, the State admitted a number of Capshaw’s claims

were properly raised in his direct appeal, but argued the district court correctly

determined those claims w ere barred by an independent and adequate state

procedural bar, i.e., Rule 203(c). The federal district court agreed and dismissed

Capshaw’s habeas petition based, inter alia, on the procedural bar. 4 W e granted a

COA in this case primarily due to the dearth of published W yoming case law

applying Rule 203(c) and Capshaw ’s provision of cases that inconclusively bore




       4
        The district court also found one of Capshaw’s ineffective assistance of counsel
claims (Claim V) to be without merit.

                                           -4-
on the uniform application of Rule 203(c).

II. Discussion:

      Capshaw argues Rule 203(c), applied by the state trial court to dismiss his

post-conviction petition, “has not been applied regularly nor strictly in other

cases” and thus can not serve as a procedural bar to his habeas petition. (COA

Petition at 4.) Specifically, he claims the over fourteen month delay 5 in the state

proceedings occurred because he thought the district court was deciding his case.

He argues that because he filed his petition and responded to the State’s M otion

to Dismiss, he was not obligated to file any additional motions, and in any event,

should have been given notice prior to dismissal.

      “On habeas review, this Court will not consider issues that have been

defaulted in state court on an independent and adequate state procedural ground,

unless the petitioner can demonstrate cause and prejudice or a fundamental



      5
         We derive this number by reading Rule 203(c) in concert with Wyoming Rule of
Civil Procedure 6(c)(2), which provides in relevant part that “[a] motion not determined
within 90 days after filing shall be deemed denied.” We read “bona fide action of record”
in Rule 203(c) to include constructive denials of motions based on operation of the rules
of civil procedure. To do otherwise would penalize a petitioner who relied on the rules of
civil procedure to allow the district court to deny a motion to dismiss his petition by
operation of Rule 6(c)(2), only to find the petition itself dismissed. Applying our
interpretation of the operation of Rule 203(c) and Rule 6(c)(2) to this case, we note the
last action of record was the constructive denial of Wyoming’s January 30, 2002
Combined Motion to Dismiss on April 30, 2002. Including the constructive denial,
Capshaw’s period of inactivity decreases by approximately eighty days, leaving
approximately fourteen months between the constructive denial on April 30, 2002, and
Capshaw’s Motion for Leave to Amend Petition for Post-Conviction Relief filed on July
1, 2003.

                                           -5-
miscarriage of justice.” Hickman v. Spears, 160 F.3d 1269, 1271 (10th Cir.

1998). “Independent state procedural grounds are those that rely exclusively on

state law as a basis of decision.” Smith v. M ullin, 379 F.3d 919, 925 (10th Cir.

2004). However, a state procedural default rule is adequate to preclude federal

review only if it is consistently and evenhandedly applied. Id. W hether the state

procedural bar is adequate “is itself a federal question.” Lee v. Kemna, 534 U.S.

362, 375 (2002) (quotation omitted).

      A “‘state-court procedural default . . . is an affirmative defense,’ and . . .

the state is ‘obligated to raise procedural default as a defense or lose the right to

assert the defense thereafter.’” Hooks v. Ward, 184 F.3d 1206, 1216 (10th Cir.

1999) (quoting Gray v. Netherland, 518 U.S. 152, 165-66 (1996)). This is

because “the state is undoubtedly in a better position to establish the regularity,

consistency and efficiency with which it has applied [the procedural rule] in the

past . . . than are habeas petitioners, who often appear pro se, to prove the

converse.” Id. at 1216-17. Thus, “the state bears the burden of proving the

adequacy of a state procedural bar in order to preclude federal habeas review.”

Id. at 1217.

      This is not to say, however, that a petitioner has no responsibility to put
      the adequacy of the state procedural bar at issue before the state is
      required to come forward with its proof. Once the state pleads the
      affirmative defense of an independent and adequate state procedural
      bar, the burden to place that defense in issue shifts to the petitioner.
      This must be done, at a minimum, by specific allegations by the
      petitioner as to the inadequacy of the state procedure. The scope of the

                                          -6-
       state’s burden of proof thereafter will be measured by the specific
       claims of inadequacy put forth by the petitioner.

Id. M ere allegations that the state procedural bar is inadequate, without

supporting legal authority or argument, do not qualify as “specific allegations . . .

as to the inadequacy of the state procedure” sufficient to define the “scope of the

state’s burden of proof thereafter.” Id.

       In this case, Capshaw’s state post-conviction petition, which included his

claims of ineffective assistance of trial and appellate counsel and claims

regarding Chief Justice Hill, was dismissed for failure to prosecute under Rule

203(c). Under Rule 203(c), a district court may dismiss a claim in which no

action is taken for ninety days. 6 See also In Interest of DG, 916 P.2d 991, 994

(W yo. 1996) (W yoming courts have inherent power to dismiss actions, sua

sponte, for failure to prosecute). Dismissals for failure to prosecute are without

prejudice. 7 W YO . R. C IV . P. 41(b)(2) (“Upon its own motion the court may

dismiss without prejudice any action not prosecuted or brought to trial with due

diligence.”); Harlow v. Wyoming, 105 P.3d 1049, 1054 n.1 (W yo.) (“Although

post-conviction relief proceedings are a continuation of the criminal case, they are


       6
         Rule 203(c) provides that: “Cases on the docket in which no substantial and bona
fide action of record towards disposition has been taken for 90 days are subject to
dismissal for lack of prosecution.” U. R. D. C. Wyo. 203(c).
       7
          However, this is cold comfort for Capshaw, who could no longer timely re-file
his petition for post conviction relief. W YO. S TAT. § 7-14-103(d) (“No petition under
this act shall be allowed if filed more than five (5) years after the judgment of conviction
was entered.”). Capshaw was sentenced by the state district court in September 1997.

                                             -7-
conducted pursuant to the rules of civil procedure.”), cert. denied, 126 S.Ct. 63

(2005).

      Although there are few published W yoming cases discussing Rule 203(c),

the W yoming Supreme Court has discussed generally the district courts’ ability to

dismiss cases for failure to prosecute. In Johnson v. Board of Commissioners of

Laramie C ounty, the W yoming Supreme Court stated “[t]he dismissal of a suit for

want of prosecution lies within the sound discretion of the trial court” as well as

various W yoming court rules. 588 P.2d 237, 238 (W yo. 1978). 8 The court went

on to explain that “[t]he plaintiff cannot escape the duty of expediting the

case[. The plaintiff] may not rest upon the failure to secure a hearing . . . . It is

to be remembered that the plaintiff is the one who sets in motion the legal

machinery and cannot escape responsibility for undue delay by inattention to his

claim.” Id. Thus, the court held “that to allow a file to lie completely dormant . .

. [for] a term of approximately 16 months[] is clearly a lack of diligent

prosecution and that the dismissal thereof does not involve an abuse of

discretion.” Id.

      Capshaw attempted to put the procedural bar at issue in the district court by




      8
        In Johnson, the Wyoming Supreme Court specifically addressed Rule 14 of the
Uniform Rules of District Court, a predecessor of Rule 203(c). Rule 14 stated that
“[c]ases on the docket in which no substantial and bona fide action towards disposition
has been taken for six (6) months are subject to dismissal for lack of prosecution.”
Johnson, 588 P.2d at 237.

                                           -8-
citing tw o W yoming Supreme Court cases, Wood v. City of Casper, 660 P.2d 1163

(W yo. 1983), and M ullen v. City of Cheyenne, 493 P.2d 1043 (W yo. 1972). He

argued these cases establish that the procedural rule has been applied

inconsistently and he was entitled to notice before his post-conviction petition

was dismissed. (R. Doc. 21 at 5-6.) The district court determined these cases

were inapposite because they involved the dismissal of appeals by the W yoming

district courts while serving as appellate courts for municipal convictions. W e

agree.

          Both Wood and M ullen involve W yoming district courts acting as

intermediate appellate courts for appeals from convictions in municipal courts.

Wood, 660 P.2d at 1164; M ullen, 493 P.2d at 1043. In both cases, the cities filed

a motion to dismiss the appeal for failure to prosecute. The state district courts

granted the motion, and were in turn reversed by the W yoming Supreme Court.

Id. In Wood, the W yoming Supreme Court held:

         when an appeal has been perfected except for argument of the appeal
         the district court should set the case for argument, and it has no
         authority to dismiss for lack of prosecution in the absence of
         reasonable notice which would have the effect of advising the
         appellant that it is necessary that a hearing be requested before the
         district court.

Wood, 660 P.2d at 1166. Similarly, in M ullen, the W yoming Supreme Court

reversed because the defendant was not given notice of the motion to dismiss.

M ullen, 493 P.2d at 1043-44. Neither case bears upon a W yoming district court’s



                                           -9-
ability to dismiss an original petition for failure to prosecute when acting as a

court of original jurisdiction. Nor do they bear upon the consistency in which

original actions in W yoming are dismissed for failure to prosecute.

      In his petition for a COA to this Court, however, Capshaw cited three

unpublished post-conviction district court cases provided to him by the University

of W yom ing C ollege of Law — Burnett v. Wyoming (N o. 24-471), Leslie v.

Wyoming (No. 5396), and Solis v. Wyoming (No. 96-2) (O’Brien, J.) — claiming

these cases “could have been, but were not, dismissed for lack of prosecution.”

(Petitioner’s Opening Br. at 9.) On appeal, he has provided the relevant docket

sheets in support of his argument. On close examination, the materials provided

by Capshaw support his argument that Rule 203(c) is not uniformly or

evenhandedly applied in W yoming district courts.

      The docket in the first case, Burnett v. Wyoming, reveals an almost

seventeen month period of inactivity between the filing of the state’s motion to

dismiss on July 24, 2001, and the substitution of counsel on December 18, 2002.

The case was eventually dismissed on December 12, 2003. The second case,

Leslie v. Wyoming, however, never presented a ninety day period of inactivity for

which the district court could have dismissed under Rule 203(c), as Capshaw

concedes in his reply brief. (Reply Br. at 6.) The third case, Solis v. Wyoming,

presented two ninety-one day periods of inactivity. The first occurred between

the filing of petitioner’s response to a motion to dismiss on June 17, 1999, and the

                                         -10-
filing of a reply brief by the State on September 16, 1999. The second period

occurred between the filing of the petitioner’s objection to the state’s request for

judgment without a hearing filed on October 7, 1999, and the state’s request for a

hearing on its motion filed on January 6, 2000. The petition was eventually

dismissed on February 16, 2000.

      Based only on the cases before this Court, it appears the W yoming district

courts have not uniformly dismissed cases under Rule 203(c) after a period of

inactivity lasting longer than ninety days. W e note in passing that there is a

substantial difference between the almost seventeen month period of inactivity in

Burnett and the ninety-one day periods in Solis for purposes of challenging the

application of the procedural bar in federal court. W hen challenging the

consistent and evenhanded application of procedural rules, especially

discretionary ones, there must be an appropriate degree of factual correspondence

between the cases cited in support and the case at bar. Nevertheless, in the

present case, Capshaw has adequately put the state bar at issue, especially given

the period of inactivity in Burnett.

      Thus, the burden was on the state of Wyoming to come forward with proof

of Rule 203(c)’s consistent and evenhanded application. W hile state procedural

bars do not have to be perfectly applied to qualify as adequate, some

demonstration must be made that the bar is “firmly established and regularly

followed.” Ford v. Georgia, 498 U.S. 411, 424 (1991) (quotation omitted). The

                                         -11-
state of Wyoming failed to do this either in the United States District Court or on

appeal to this Court.

       Given all the information in this record, we conclude Rule 203 did not

serve as an independent and adequate state procedural bar to Capshaw’s claims.

W hile the W yoming district court’s dismissal of Capshaw ’s petition appears

entirely appropriate under Rule 203(c), 9 the state of W yoming failed to meet its

burden of demonstrating the consistent application of Rule 203(c) in W yoming

district courts across the board. Thus, Capshaw’s claims are not procedurally

barred from federal habeas review based on Rule 203(c).

       W e REVERSE and REM AND to the district court for consideration of




       9
         Capshaw’s argument that the state district court violated his due process rights by
dismissing his post-conviction petition for failure to prosecute without notice is easily
disposed of. Despite the lack of evidence of individual notice given to Capshaw prior to
the dismissal of his post-conviction petition, he was on notice as to the procedural rules
governing the operation of the state trial court, including Rule 203(c) and W YO. R. C IV. P.
41(b)(2). See Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994) (“[P]ro se
status does not excuse the obligation of any litigant to comply with the fundamental
requirements of the Federal Rules of Civil and Appellate Procedure.”). As the petitioner,
Capshaw had the burden to push forward his post-conviction petition after he filed his
answer to the state’s motion to dismiss and before ninety days passed after the last “bona
fide action of record,” which we construe in this case as the district court’s constructive
denial of the state’s motion to dismiss. He could have accomplished this by filing his
own motion for judgment or requesting a hearing.

                                            -12-
Capshaw’s remaining claims consistent with this order and judgment.



                                     Entered by the C ourt:

                                     Terrence L. O ’Brien
                                     United States Circuit Judge




                                      -13-
