                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                            FOR THE TENTH CIRCUIT                        December 21, 2016
                        _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
MONTY SULLIVAN,

      Petitioner - Appellant,

v.                                                         No. 16-8101
                                                  (D.C. No. 2:15-CV-00198-ABJ)
EDDIE WILSON, Warden, Wyoming                                (D. Wyo.)
State Penitentiary; ROBERT LAMPERT,
Director, Wyoming Department of
Corrections,

      Respondents - Appellees.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

      Monty Sullivan seeks a certificate of appealability (“COA”) to appeal the

district court’s dismissal of his 28 U.S.C. § 2254 petition. We deny a COA and

dismiss the appeal.

                                           I

      Sullivan was convicted in Wyoming state court of two counts of sexual abuse

of a minor. On direct appeal, he raised a single issue: prosecutorial misconduct.

The Wyoming Supreme Court affirmed. Sullivan then filed a petition for state post-


      *
         This order is not binding precedent, except under the doctrines of law of the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.
conviction relief, arguing ineffective assistance of trial counsel. The trial court

concluded that Sullivan’s claims were procedurally barred because they were not

raised on direct appeal and did not fit within an exception for claims not raised

because of ineffective assistance of appellate counsel. See Wyo. Stat. § 7-14-

103(a)(i), (b)(ii). The court further stated that because “Sullivan’s claims of

ineffective assistance of trial counsel [were] without merit,” his post-conviction

petition had to be denied “with or without application of the post-conviction

procedural[] bar rules.” The Wyoming Supreme Court denied certiorari.

      Sullivan then filed a § 2254 petition. The district court dismissed, ruling that

Sullivan’s claims were defaulted pursuant to an independent and adequate state

procedural rule. The court also held Sullivan failed to show that ineffective

assistance of counsel provided cause to excuse his procedural default. It declined to

issue a COA. Sullivan now seeks a COA from this court.1

                                           II

      A petitioner may not appeal the denial of habeas relief under § 2254 without a

COA. § 2253(c)(1). We will issue a COA “only if the applicant has made a

substantial showing of the denial of a constitutional right.” § 2253(c)(2). To make

such a showing with respect to claims dismissed by the district court on procedural

grounds, Sullivan must show that “jurists of reason would find it debatable whether

      1
        Judgment was entered on June 30, 2016. The district court granted Sullivan
an extension of time, through September 6, 2016, to file a notice of appeal.
Sullivan’s notice of appeal was not filed until September 7 but is timely under the
prison mailbox rule. See Montez v. Hickenlooper, 640 F.3d 1126, 1133 (10th Cir.
2011).
                                            2
the petition states a valid claim of the denial of a constitutional right and that jurists

of reason would find it debatable whether the district court was correct in its

procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

                                             A

       We generally will not address the merits of a claim that was defaulted in state

court on an independent and adequate state procedural ground. Thacker v. Workman,

678 F.3d 820, 835 (10th Cir. 2012). “A state court finding of procedural default is

independent if it is separate and distinct from federal law.” Maes v. Thomas, 46 F.3d

979, 985 (10th Cir. 1995). “[W]hen resolution of the state procedural law question

depends on a federal constitutional ruling, the state-law prong of the court’s holding

is not independent of federal law . . . .” Ake v. Oklahoma, 470 U.S. 68, 75 (1985).

       The state trial court determined that Sullivan’s claims were procedurally

barred unless he could demonstrate ineffective assistance of appellate counsel.2 See

Wyo. Stat. § 7-14-103(a)(i), (b)(ii); see also Keats v. State, 115 P.3d 1110, 1115

(Wyo. 2005) (“[C]laims of ineffective assistance of appellate counsel are statutorily

recognized as the portal through which otherwise waived claims of trial-level error

may be reached.” (quotation omitted)). The court recognized that the standard for

ineffective assistance claims at the trial and appellate level flows from Strickland v.

Washington, 466 U.S. 668 (1984). And after considering Sullivan’s specific

allegations of ineffectiveness, the state trial court concluded that his “claims of

       2
        Because the Wyoming Supreme Court denied certiorari without analysis, we
review the “last reasoned court decision.” Bonney v. Wilson, 817 F.3d 703, 711 n.6
(10th Cir. 2016).
                                             3
ineffective assistance of trial counsel [were] without merit.” Thus, the court stated

that “with or without application of the post-conviction procedural[] bar rules,

[Sullivan’s] post-conviction petition must be denied.”

      The trial court’s procedural ruling rested on its conclusion that trial counsel

was not ineffective. That is, the court ruled that appellate counsel permissibly

declined to argue that trial counsel was ineffective because trial counsel’s

performance was sufficient. See generally Neill v. Gibson, 278 F.3d 1044, 1057

(10th Cir. 2001) (in considering whether appellate counsel was ineffective for failing

to raise an issue, courts “look to the merits of the omitted issue”). Accordingly, the

court reached its procedural ruling only by first deciding the merits of Sullivan’s

federal claim. Under these circumstances, application of Wyoming’s procedural bar

is not independent of federal law. See Ake, 470 U.S. at 75 (state rule not

independent if “application of the procedural bar depend[s] on an antecedent ruling

on federal law, that is, on the determination of whether federal constitutional error

has been committed”).3

      Moreover, this is not a case in which the state court made an alternative merits

ruling in addition to an independent and adequate state procedural determination.

See Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) (federal courts must “honor a state

      3
         Our conclusion does not suggest that every application of Wyo. Stat. § 7-14-
103(a)(i) is dependent on federal law. See, e.g., Teniente v. Wyo. Attorney Gen.,
412 F. App’x 96 (10th Cir. 2011) (unpublished) (requirement that claims be raised on
direct appeal is an independent and adequate state ground in case that did not involve
state court’s antecedent ruling on merits of federal claim). Our decision rests on the
trial court’s analysis of the merits of Sullivan’s federal claims, which will not occur
in every instance.
                                           4
holding that is a sufficient basis for the state court’s judgment, even when the state

court also relies on federal law” in making an alternative ruling). The trial court

stated that Sullivan’s petition fails with or without the procedural bar. But, as

described above, its application of the procedural bar was not independent of federal

law.

                                            B

       Because the procedural bar at issue was not independent, we assess the merits

of Sullivan’s claims. See Slack, 529 U.S. at 484 (petitioner must show that “jurists

of reason would find it debatable whether the petition states a valid claim of the

denial of a constitutional right” to obtain a COA).4 If a state court denies relief

“because it finds the claim lacks merit under federal law . . . , there is no independent

state ground of decision and, thus, no basis for procedural bar” but “the state court’s

disposition [is] entitled to § 2254(d) deference because it was a form of merits

review.” Cargle v. Mullin, 317 F.3d 1196, 1206 (10th Cir. 2003). Thus, to prevail,

Sullivan must show that the state courts’ adjudication either “resulted in a decision

that was contrary to, or involved an unreasonable application of, clearly established

Federal law” or was “based on an unreasonable determination of the facts in light of

the evidence presented . . . .” § 2254(d)(1), (2).




       4
       The district court considered the merits of Sullivan’s claims in determining
whether he could establish cause and prejudice. See Thacker, 678 F.3d at 835.
Accordingly, we have no reason to remand despite our determination as to procedural
bar.
                                            5
      A petitioner claiming ineffective assistance of counsel must demonstrate both

“that counsel made errors so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment” and that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 687, 694. Sullivan argues that

his trial counsel was ineffective for failing to: (1) obtain an expert to review a video

interview of the victim; (2) investigate statements made to Sullivan by the victim’s

doctor; (3) challenge the voluntariness of Sullivan’s confession; and (4) object to

prejudicial testimony. He also argues cumulative error. We conclude that the state

court’s adjudication of these claims was reasonable.5

      Counsel permissibly declined to present expert testimony regarding a video

interview with the victim. Because the video was not presented to the jury, an expert

could not have challenged the reliability of the victim’s recorded statements.

Moreover, the victim testified at trial, and counsel cross-examined her regarding the

reliability of her testimony. Through that cross-examination, counsel established that

the victim had rehearsed her testimony, had accused others of sexual abuse, had

admitted that the incidents were difficult to remember, and could not provide details

regarding the incidents. The state court reasonably concluded that counsel’s efforts

did not fall below the Strickland threshold.


      5
         The state trial court listed Sullivan’s sub-claims but did not independently
address each one. Instead, it summarily concluded that Sullivan had not shown
ineffective assistance. Under these circumstances, we presume the court adjudicated
the claims on the merits. See Harrington v. Richter, 562 U.S. 86, 99-100 (2011).
                                            6
      Sullivan also argues that counsel should have contacted the victim’s doctor.

He claims the doctor would have testified that the victim did not show signs of abuse;

however, Sullivan does not cite to any statement from the doctor to support his claim,

and the sole medical record Sullivan offers is from an exam conducted long after

Sullivan’s abuse took place. We conclude that Sullivan has not shown the state

court’s rejection of this claim was unreasonable.

      On the third claim of ineffective assistance, we conclude it is not reasonably

probable that the court would have suppressed Sullivan’s confession as involuntary.

In considering whether a statement is voluntary, courts consider the totality of the

circumstances, including: “(1) the age, intelligence, and education of the defendant;

(2) the length of detention; (3) the length and nature of the questioning; (4) whether

the defendant was advised of his constitutional rights; and (5) whether the defendant

was subject to physical punishment.” United States v. Lopez, 437 F.3d 1059, 1063-

64 (10th Cir. 2006) (quotation omitted). Sullivan admits that he was advised of his

rights and that the interview lasted only two hours. He does not claim he was

physically punished, aggressively questioned, or particularly prone to coercion.

      Finally, Sullivan contends his attorney was ineffective for failing to object to

testimony from a police chief describing conduct related to a dismissed charge. But

counsel did object to this testimony and was overruled. The prosecutor explained

that the question was not intended to establish the truth of the matter asserted, but to

flesh out what the chief told Sullivan, given that Sullivan had admitted generally to

doing what the chief described. See Wyo. R. Evid. 404(b) (evidence of prior bad acts

                                            7
is inadmissible to prove a person’s character, but may be admissible for other

purposes).

      We conclude that none of Sullivan’s allegations, individually or cumulatively,

amount to ineffective assistance. See Cargle, 317 F.3d at 1206-07 (describing

cumulative error review).

                                         III

      Sullivan’s request for a COA is DENIED and the appeal is DISMISSED.


                                           Entered for the Court


                                           Carlos F. Lucero
                                           Circuit Judge




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