                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  August 18, 2016
                   UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                         FOR THE TENTH CIRCUIT                     Clerk of Court
                     _________________________________

OLOYEA D. WALLIN, a/k/a
Donald Oloyea Wallin, a/k/a
Oloyea Wallin,

      Petitioner - Appellant,

v.                                                    No. 15-1301
                                            (D.C. No. 1:14-CV-01968-MSK)
MICHAEL MILLER, Warden of                              (D. Colo.)
Crowley County Correctional
Facility; CYNTHIA H. COFFMAN,
The Attorney General of the State
of Colorado,

      Respondents - Appellees.
                 _________________________________

                        ORDER AND JUDGMENT*
                     _________________________________

Before L U C E R O , M A T H E S O N , and B A C H A R A C H , Circuit Judges.
                     _________________________________

      Mr. Oloyea Wallin was convicted of second-degree assault in

Colorado state court. After unsuccessfully challenging his conviction in




*
     We do not believe that oral argument would materially aid us in
deciding this appeal. As a result, our decision is based on the briefs. See
Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).

     Our order and judgment does not constitute binding precedent
except under the doctrines of law of the case, res judicata, and collateral
estoppel. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
state court, he filed two federal habeas petitions. The district court rejected

all of the claims asserted in both petitions.

      We granted Mr. Wallin a certificate of appealability for five of his

claims. These claims allege

      1.    error in allowing expert testimony on domestic violence,

      2.    prosecutorial misconduct,

      3.    error in allowing the prosecution to use the victim’s
            confidential medical information,

      4.    error in allowing use of the victim’s involuntary statements, and

      5.    abuse of subpoena power.

The Colorado Court of Appeals declined to consider these claims; the

federal district court subsequently considered them procedurally barred

and refused to consider them. We now conclude that the federal district

court was right about the first two claims but wrong about the last three.

Therefore, we reverse the district court’s dismissal of the last three

claims.

I.    Mr. Wallin procedurally defaulted the first two claims.

      Mr. Wallin procedurally defaulted his claims alleging (1) error in

allowing expert testimony on domestic violence and (2) prosecutorial

misconduct.




                                      -2-
      First, in state court, Mr. Wallin challenged the introduction of

expert testimony on domestic violence. But he based this claim on state

law rather than the U.S. Constitution. Here, he relies solely on the U.S.

Constitution. Because the constitutional challenge is new, it is

unexhausted. Duncan v. Henry, 513 U.S. 364, 366 (1996) (per curiam).

      But if Mr. Wallin were to return to state court and assert a

constitutional challenge to the introduction of expert testimony, the state

court would be required to deny the claim because Mr. Wallin could have

asserted it either in the direct appeal or one of the two rounds of post-

conviction proceedings. Colo. R. Crim. P. 35(c)(3)(VII); see People v.

Hubbard, 519 P.2d 945, 948-49 (Colo. 1974). Because the state court

would deny the claim on procedural grounds, we apply an anticipatory

procedural bar. See Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th

Cir. 2007).

      Second, Mr. Wallin alleged prosecutorial misconduct in state court.

This claim was based on the prosecutor’s use of victim testimony that the

prosecutor allegedly knew was false and coerced. R. at 269. In light of

Mr. Wallin’s allegations, the Colorado Court of Appeals apparently

disposed of the claim differently as to the effect on Mr. Wallin and the

effect on the victim. The court concluded that Mr. Wallin could not

reassert a violation of the victim’s rights because he had already done

                                     -3-
that unsuccessfully in earlier proceedings, and Mr. Wallin could not

assert a violation of his own rights because that claim could have been

presented on direct appeal but was not. Id. at 60. As a result, the

Colorado Court of Appeals declined to consider the entirety of Mr.

Wallin’s prosecutorial misconduct claim.

      In the present habeas claim, Mr. Wallin appears to allege

prosecutorial misconduct only with respect to his own rights, not the

victim’s. The Colorado Court of Appeals declined to consider these

allegations because they could have been presented earlier. Colo. R.

Crim. P. 35(c)(3)(VII). In light of this reasoning, the federal district

court correctly concluded that the prosecutorial misconduct claim was

subject to procedural default. See Rea v. Suthers, 402 F. App’x 329, 331

(10th Cir. 2010) (unpublished) (stating that Colorado Rule of Criminal

Procedure 35 is an independent and adequate state procedural ground to

bar federal habeas relief); Williams v. Broaddus, 331 F. App’x 560, 563

(10th Cir. 2009) (unpublished) (same).

      To overcome procedural default on these two claims, Mr. Wallin

must show (1) “cause” for failing to comply with the state procedural

requirement and “prejudice” from the state court’s refusal to consider the

merits or (2) a fundamental miscarriage of justice based on proof of




                                      -4-
actual innocence. Frost v. Pryor, 749 F.3d 1212, 1231-32 (10th Cir.

2014). But Mr. Wallin has not attempted to make either showing.

      Accordingly, the district court properly dismissed Mr. Wallin’s

claims involving (1) introduction of expert testimony on domestic

violence and (2) prosecutorial misconduct.

II.   Mr. Wallin did not procedurally default his three remaining
      habeas claims.

      According to Mr. Wallin, he did not procedurally default his claims

involving (1) error in allowing the prosecution to use the victim’s

confidential medical information, (2) error in allowing use of the

victim’s involuntary statements, or (3) abuse of subpoena power. We

agree.

      Mr. Wallin asserted these claims in two rounds of state post-

conviction proceedings. In the second round of state post-conviction

proceedings, Mr. Wallin framed these claims as federal constitutional

violations of the rights to due process, a fair trial, equal protection, and

the First and Fourth Amendments. See R. at 271, 284-85, 287 (victim’s

confidential medical information); id. at 197-98, 210-17, 219-20

(victim’s involuntary statements); id. at 293-94, 297-302, 305-06 (abuse

of subpoena power). According to the respondents, Mr. Wallin could not

successfully assert these three claims in his second post-conviction


                                     -5-
application because the claims could have been asserted in the first post-

conviction application. If the respondents are correct, we would need to

focus on the reasons given by the state appeals court for declining to

consider these claims. See Cone v. Bell, 556 U.S. 449, 466-67 (2009) 1 ;

LeBere v. Abbott, 732 F.3d 1224, 1233 (10th Cir. 2013) (holding that a

federal habeas claim is not procedurally barred when the petitioner

presented a constitutional claim for the first time in a state post-

conviction proceeding, reasoning that the Colorado Court of Appeals had



1
      In Cone v. Bell, the issue was whether the habeas petitioner had
procedurally defaulted a Brady claim. The state appellate court had
declined to consider the merits, reasoning that the claim was presented
and rejected in earlier state-court proceedings. 556 U.S. at 466-67. The
Supreme Court noted that the state appellate court was wrong; the
petitioner “had not presented his Brady claim in earlier proceedings and,
consequently, the state courts had not passed on it.” Id. at 466. Because
the claim was newly presented in the state post-conviction proceeding,
the State argued, the claim had been procedurally defaulted. Id. at 467.
But the Supreme Court held that a federal court could not second-guess
the state appellate court’s reason for declining to consider the merits:

      When a state court declines to find that a claim has been waived
      by a petitioner’s alleged failure to comply with state procedural
      rules, our respect for the state-court judgment counsels us to do
      the same. Although we have an independent duty to scrutinize
      the application of state rules that ba r our review of federal
      claims, we have no concomitant duty to apply state procedural
      bars where state courts have themselves declined to do so. The
      [state] courts did not hold that [the petitioner] waived his Brady
      claim, and we will not second-guess their judgment.

Id. at 468-69 (citing Lee v. Kemna, 534 U.S. 362, 375 (2002)).

                                     -6-
mistakenly said that the claim was unreviewable because it had already

been decided on direct appeal).

      That court declined to consider the three claims on the ground that

they had already been presented and rejected in the first round of post-

conviction proceedings:

      [These claims] were premised wholly on [Mr.] Wallin’s
      contention that the rights of the victim were violated during
      police questioning, and through the introduction of the fruits of
      that questioning. The trial court previously rejected the premise
      of these claims when it denie d [Mr.] Wallin’s motion for new
      trial. Specifically, the trial court concluded that the claims were
      without merit because they were premised on the rights of a
      third party rather than [Mr.] Wallin’s own constitutional rights.
      Accordingly, the court did not err in dismissing [these] claims
      . . . as successive, without making additional findings of fact or
      law, because a ruling had already been made.

R. at 60.

      A federal court cannot apply procedural default when a state court

refuses to consider a claim on the ground that the claim had already been

rejected in earlier proceedings. See Cone v. Bell, 556 U.S. 449, 467

(2009) (“When a state court refuses to readjudicate a claim on the ground

that it has been previously determined, the court’s decision . . . provides

strong evidence that the claim has already been given full consideration

by the state courts and thus is ripe for federal adjudication.” (emphasis in

original)); Davis v. Workman, 695 F.3d 1060, 1072 (10th Cir. 2012) (“A

state court’s invocation of res judicata does not . . . create a procedural bar

                                      -7-
to relief under [28 U.S.C.] § 2254.”). Indeed, the respondents agree that

Mr. Wallin’s habeas claims would not be procedurally barred if they had

been presented in earlier state-court proceedings. Appellees’ Resp. Br. at

15.

      The respondents provide a different explanation for the procedural

default, arguing that in the direct appeal and first round of post-

conviction proceedings, Mr. Wallin failed to present a constitutional

basis for the three claims. Thus, according to the respondents, the

Colorado Court of Appeals could have declined to consider these claims

on the ground that they had not been presented earlier.

      But the Colorado Court of Appeals did not decline to consider these

claims because Mr. Wallin had failed to present the claims earlier.

Instead, the court declined to consider the claims because they had

already been rejected in earlier proceedings. R. at 60. This rationale

would not prevent a federal court from considering the claims, for

procedural default applies when habeas petitioners fail to properly

present their claims—not when the petitioners repeat their claims in

successive state-court proceedings. As a result, neither the district court

nor the respondents have justified the application of procedural default

to the habeas claims involving (1) use of the victim’s confidential

medical information, (2) use of the victim’s involuntary statements, or

                                     -8-
(3) abuse of subpoena power. In the absence of a procedural default, we

reverse the dismissal of these habeas claims.

III.   Disposition

       We conclude that Mr. Wallin has procedurally defaulted his claims

involving erroneous introduction of expert testimony and prosecutorial

misconduct. Thus, we affirm the dismissal of these claims.

       But Mr. Wallin has not procedurally defaulted his claims involving

(1) error in allowing use of the victim’s confidential medical

information, (2) error in allowing use of the victim’s involuntary

statements, or (3) abuse of subpoena power. Accordingly, we reverse the

dismissal on these claims. With the partial reversal, we remand to the

district court for further proceedings consistent with this order and

judgment.


                                   Entered for the Court



                                   Robert E. Bacharach
                                   Circuit Judge




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