                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES COURT OF APPEALS                  July 29, 2013
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT                      Clerk of Court



 CLEO COOPER,

       Petitioner - Appellant,
                                                        No. 13-8047
 v.                                             (D.C. No. 11-CV-00023-CAB)
                                                          (D. Wyo.)
 EDDIE WILSON, Wyoming
 Department of Corrections State
 Penitentiary Warden,

       Respondent - Appellee.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HOLMES, and MATHESON, Circuit Judges.


      Petitioner-Appellant Cleo Cooper, proceeding pro se, seeks a certificate of

appealability (COA) to challenge the district court’s denial of his 28 U.S.C.

§ 2254 petition. Because Mr. Cooper has not shown “that jurists of reason would

find it debatable whether 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), we deny his request for a COA and dismiss this appeal.

      In two separate orders, the district court resolved Mr. Cooper’s § 2254

petition. I R. 200–22 (Order on Motion to Dismiss); id. at 418–42 (Order
Granting Respondent’s Motion for Summary Judgment). Seeking a COA from

this court, Mr. Cooper reasserts five of the claims raised below. He argues that:

(1) the trial court abused its discretion by allowing certain expert testimony; (2)

the cumulative effect of several acts of prosecutorial misconduct prejudiced him

and denied him a fair trial; (3) the admission of surveillance video evidence

denied him due process; (4) he received ineffective assistance of trial and

appellate counsel; and (5) the written judgment and sentence was inconsistent

with the oral sentence. Aplt. Br. 2. We address each issue in turn.

      Concerning the first two claims, as explained by the district court, the

Wyoming Supreme Court’s decisions on the expert testimony and prosecutorial

misconduct issues were neither contrary to, nor an unreasonable application of

clearly established federal law, nor were the decisions based on an unreasonable

determination of the facts. See I R. 429–35.

      As for the third claim, reasonable jurists could not debate the district

court’s procedural ruling. Mr. Cooper failed to raise the video surveillance claim

on direct appeal or in post-conviction proceedings. Id. at 209–14. As a result,

Wyoming state courts would find the claim procedurally defaulted (and ineligible

for a statutory exception). See id. at 211–14 (citing Wyo. Stat. Ann. § 7-14-103).

Therefore, because Mr. Cooper has not demonstrated cause and prejudice or a

fundamental miscarriage of justice, his claim is procedurally barred. See

Cummings v. Sirmons, 506 F.3d 1211, 1224 (10th Cir. 2007).

                                        -2-
       In his fourth claim, Mr. Cooper alleges trial and appellate counsel were

ineffective for failing to challenge the admission of certain expert testimony and

failing to argue against the admission of video surveillance evidence. 1 But Mr.

Cooper failed to exhaust these arguments in state court and is now procedurally

barred from doing so. Therefore, because he has not shown cause and prejudice

or a fundamental miscarriage of justice, this claim is unavailing in his § 2254

petition. 2 See id.

       Concerning claim five, the Wyoming trial court did not contradict or

unreasonably apply clearly established federal law when it denied Mr. Cooper’s

motion to correct his sentence, let alone state law. See I R. 435–40. Under

Wyoming law, “an unambiguous oral pronouncement prevails over a contrary

provision in a written order.” Britton v. State, 211 P.3d 514, 519 (Wyo. 2009)

(emphasis added). But the oral pronouncement here was ambiguous. So Mr.

Cooper’s ineffective assistance claim based on appellate counsel’s alleged failure

to challenge the sentencing discrepancy is not reasonably debatable. Nor is the

district court’s conclusion that appellate counsel’s performance was

constitutionally sufficient. See I R. 440–41.



       1
        We deal with Mr. Cooper’s third ineffective assistance argument—
counsel’s failure to challenge the sentencing discrepancy—below.
       2
         Whether Mr. Cooper’s § 2254 petition can even be construed as raising
these arguments is debatable. See I R. 29–54. However, because we find both
arguments procedurally barred, we need not decide the issue.

                                        -3-
      Finally, to the extent Mr. Cooper argues that his sentence violates the ex

post facto clause, we reject the argument as waived because it was not raised in

district court. Further, the written order merely clarified the oral sentence; it did

not purport to retroactively apply a newly enacted law or guideline. Accordingly,

there is no ex post facto issue.

      We GRANT IFP status, DENY a COA and DISMISS the appeal.



                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




                                         -4-
