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

                            FOR THE TENTH CIRCUIT                          August 13, 2015
                        _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
DONALD BOUCHER,

      Petitioner - Appellant,

v.                                                          No. 15-8023
                                                  (D.C. No. 2:13-CV-00276-SWS)
WYOMING DEPARTMENT OF                                        (D. Wyo.)
CORRECTIONS MEDIUM
CORRECTIONAL INSTITUTION
WARDEN, a/k/a Steve Hargett, in his
official capacity; WYOMING
DEPARTMENT OF CORRECTIONS
DIRECTOR, a/k/a Bob Lampert, in his
official capacity,

      Respondents - Appellees.
                      _________________________________

              ORDER DENYING CERTIFICATE OF APPEALABILITY *
                      _________________________________

Before KELLY, LUCERO, and McHUGH, Circuit Judges.
                  _________________________________

      Donald Boucher seeks a certificate of appealability (“COA”) to appeal the

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

the appeal.

                                           I

      On February 15, 2001, Boucher was charged by information in Laramie


      *
         This order is not binding precedent, except under the doctrines of law of the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.
County, Wyoming, with ten counts of second degree sexual assault. A warrant for

his arrest was issued the same day. Boucher was arrested in Arizona seven years

later, on March 1, 2008. He was arraigned in April 2008. Boucher’s trial was

scheduled for September 2008. However, after learning that some of the dates

contained in the original information were incorrect, the prosecution elected to

dismiss the charges and re-file. A second information charged Boucher with five

counts of second degree sexual assault and one count of third degree sexual assault.

      In January 2009, Boucher’s trial counsel moved to dismiss the charges,

alleging a violation of Boucher’s right to a speedy trial under Wyoming Rule of

Criminal Procedure 48. At a subsequent hearing on the motion, counsel asserted that

the delay between Boucher’s arraignment and trial violated his rights under both Rule

48 and the federal Constitution. Although the prosecutor noted the substantial delay

between the filing of original charges in 2001 and Boucher’s arrest in 2008, defense

counsel did not argue that Boucher’s speedy trial rights were violated by pre-arrest

delay. The trial court denied Boucher’s motion. He was convicted on all six counts.

      On direct appeal, Boucher was represented by new counsel, who abandoned

his Rule 48 argument and instead claimed that pre-arrest delay violated Boucher’s

constitutional right to a speedy trial. The Wyoming Supreme Court rejected this

argument. It concluded that de novo review was proper despite Boucher’s failure to

argue pre-arrest delay before the trial court, and identified the four-factor test from

Barker v. Wingo, 407 U.S. 514 (1972), as governing its analysis. The court

concluded that the 2,971-day delay from when Boucher was initially charged in 2001

                                           -2-
until his April 2009 trial qualified as presumptively prejudicial. Accordingly, the

court reached the other Barker factors and concluded that Boucher had asserted his

speedy trial rights as to post-arrest delay, that his failure to properly raise and create

a record about pre-arrest delay hampered the court’s analysis of the reason for delay,

and that Boucher did not point to any specific prejudice flowing from the delay.

Considering these factors together, the court concluded that Boucher’s rights were

not violated.

       Boucher then filed a petition for state post-conviction relief. He argued that

his trial counsel was ineffective for failing to create an adequate record as to pre-

arrest delay. Boucher also argued that his appellate counsel was ineffective for

failing to raise trial counsel’s ineffectiveness. Therefore, he argued, his claim that

his trial counsel was ineffective should not be procedurally barred, even though

Boucher did not raise the issue on direct appeal. In its response to Boucher’s

petition, the state submitted an affidavit from Detective Richard Zukauckas stating

that Boucher’s arrest warrant was entered into the National Crime Information Center

database in February 2001, which indicated that Laramie County sought to extradite

Boucher if he was found anywhere in the United States. Zukauckas also averred that

he entered Boucher’s information into “multiple databases,” and would have been

alerted if “Boucher had been arrested, received a traffic citation, applied for public

assistance, obtained a driver’s license, registered a motor vehicle, rented a home, had

utilities turned on, applied for credit, or obtained a cell phone, using his real name,

Social Security number, and date of birth.”

                                            -3-
      The trial court dismissed Boucher’s petition. It concluded that because the

Wyoming Supreme Court had already considered the issue of pre-arrest delay on

direct appeal, Boucher’s ineffective assistance claim was an “impermissible end-run

around” that ruling. The court dismissed for lack of jurisdiction, holding the claim

was procedurally barred because it had previously been decided on the merits. It also

stated that if it had jurisdiction to consider the claim, it would deny relief because the

Zukauckas affidavit showed that pre-arrest delay was attributable to Boucher rather

than the state. The Wyoming Supreme Court denied Boucher’s petition for writ of

review, finding “no error in the district court’s Order.”

      Boucher then filed a § 2254 petition in federal court advancing three claims:

(1) the Wyoming Supreme Court unreasonably denied his constitutional speedy trial

claim on direct appeal; (2) trial counsel was ineffective for failing to argue pre-arrest

delay; and (3) appellate counsel was ineffective for failing to raise ineffective

assistance of trial counsel. On cross motions for summary judgment, the district

court denied relief and declined to grant a COA. Boucher filed a timely notice of

appeal.

                                            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, Boucher must demonstrate “that reasonable jurists could debate

whether (or, for that matter, agree that) the petition should have been resolved in a

                                           -4-
different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(quotations omitted).

      To obtain relief under § 2254 on a claim adjudicated on the merits, a petitioner

must show that the state court’s decision either “resulted in a decision that was based

on an unreasonable determination of the facts in light of the evidence presented” or

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

Federal law, as determined by the Supreme Court of the United States.”

§ 2254(d)(1), (2). In other words, “a state prisoner must show that the state court’s

ruling on the claim being presented in federal court was so lacking in justification

that there was an error well understood and comprehended in existing law beyond

any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86,

103 (2011).

                                            A

      Boucher first contends that the Wyoming Supreme Court unreasonably

adjudicated his constitutional speedy trial claim. The state court correctly identified

the four factors that must be weighed in assessing a speedy trial claim: (1) the length

of the delay; (2) the reason for the delay; (3) defendant’s assertion of his right to a

speedy trial; and (4) prejudice to the defendant. Barker, 407 U.S. at 530-32. As

Boucher recognizes, the state court properly held that the delay in this case was

sufficient to qualify as “presumptively prejudicial” such that analysis of the



                                           -5-
remaining factors is required. Id. at 530. Boucher argues that the state court

unreasonably applied these latter three factors. We disagree.

      Boucher complains that the state court failed to weigh in his favor the silent

record as to the reasons for delay, noting that the government bears the burden of

establishing an acceptable rationale for excessive delay. See United States v. Seltzer,

595 F.3d 1170, 1177 (10th Cir. 2010). But this argument ignores the procedural

posture of his direct appeal. Because Boucher did not challenge the government on

pre-arrest delay at trial, the state had no reason to create a record. The Wyoming

Supreme Court recognized that the case presented a “unique situation” and elected to

treat this factor as neutral. Given the absence of on-point case law—Boucher does

not cite any cases presenting a similar scenario—we cannot say that the court’s

decision was unreasonable. See Parker v. Scott, 394 F.3d 1302, 1308 (10th Cir.

2005) (explaining that a § 2254 petitioner must show that the state court contravened

or unreasonably applied “clearly established federal law as determined by decisions,

not dicta, of the Supreme Court” (quotation omitted)).

      The state court held that the third factor, whether the defendant asserted his

right to a speedy trial, only slightly favored Boucher because he asserted his right

only as to post-arrest delay. Boucher contends that because the prosecutor mentioned

the pre-arrest period, the trial court was on notice that the full period of delay was at

issue. But our review of the record confirms the state court’s conclusion that

Boucher did not argue pre-arrest delay in the trial court. Given this partial assertion

of the right to a speedy trial, a “slight” weighting in Boucher’s favor is reasonable.

                                           -6-
      Boucher also argues that he was substantially prejudiced by the delay. We

reject his contention that specific claims of prejudice are irrelevant because the

length of the delay was presumptively prejudicial. Although it is true that

“affirmative proof of particularized prejudice is not essential to every speedy trial

claim,” the phrase “presumptive prejudice” is something of a misnomer: it is not

“intended to indicate a statistical probability of prejudice; it simply marks the point at

which courts deem the delay unreasonable enough to trigger the Barker enquiry.”

Doggett v. United States, 505 U.S. 647, 652 n.1, 655 (1992).

      The Wyoming Supreme Court looked to the three interests that may be

prejudiced identified in Barker: “oppressive pretrial incarceration,” “anxiety and

concern of the accused,” and “the possibility that the defense will be impaired.” 407

U.S. at 532. It noted that Boucher was not incarcerated prior to arrest and did not

claim any unusual level of anxiety. Boucher does not argue that any witnesses

became unavailable as a result of the delay. See id. (noting that in such

circumstances, “prejudice is obvious”). He does argue that he suffered prejudice

because the memories of the prosecution’s witnesses faded, but as the state court

explained, the witnesses’ difficulties in remembering certain details may well have

helped Boucher by undermining the credibility of his accusers. Again, we do not

discern anything unreasonable about the state court’s handling of this factor.

      Finally, Boucher argues that the Wyoming Supreme Court’s weighing of the

factors was unreasonable because more factors favored him than favored the state.

But in Barker itself the Court explained that “none of the four factors identified

                                           -7-
above [is] either a necessary or sufficient condition to the finding of a deprivation of

the right of speedy trial. Rather, they are related factors and must be considered

together with such other circumstances as may be relevant.” Id. at 533. Boucher

further claims that his case is materially identical to Doggett, and thus required a

finding of a speedy trial violation. But in Doggett, the government made little effort

to search for the defendant, and “could have found him within minutes” using basic

investigatory techniques. 505 U.S. at 653. The government’s negligence was thus a

key factor. See id. In the case at bar, the record was silent as to the government’s

diligence because Boucher did not raise pre-arrest delay as an issue.1 This salient

distinction explains the Wyoming Supreme Court’s disposition.

      Because reasonable jurists could not debate whether the Wyoming Supreme

Court’s decision was an unreasonable application of clearly established federal law,

Boucher is not entitled to a COA on his speedy trial claim.

                                            B

      Boucher also argues that his trial counsel and appellate counsel were

ineffective. Although Boucher raised these claims in his petition for state post-

conviction relief, the state trial court concluded they were procedurally barred

because they had already been decided on direct appeal. The Wyoming Supreme

Court found “no error” in the trial court’s ruling.


      1
        Because the Zukauckas affidavit was not submitted until after the Wyoming
Supreme Court rendered its decision on direct appeal, we do not consider it in ruling
on Boucher’s speedy trial claim. See Cullen v. Pinholster, 131 S. Ct. 1388, 1398
(2011).
                                           -8-
      As a general matter, “[a] state court’s invocation of a procedural rule to deny a

prisoner’s claims precludes federal review of the claims if, among other requisites,

the state procedural rule is a nonfederal ground adequate to support the judgment and

the rule is firmly established and consistently followed.” Martinez v. Ryan, 132 S.

Ct. 1309, 1316 (2012). Boucher suggests that the state courts subjected his

ineffective assistance claim to a rule that is not firmly established or consistently

followed. We agree that the state courts’ analysis was highly unusual: a claim that

counsel was ineffective for failing to properly present a speedy trial argument plainly

differs from a substantive speedy trial claim. See Schreibvogel v. State, 269 P.3d

1098, 1102 (Wyo. 2012) (explaining the difference between “claims” and “issues”

under Wyoming law).2 However, we need not consider whether this procedural bar is

adequate and independent because “[w]hen a state court declines to review the merits

of a petitioner’s claim on the ground that it has done so already, it creates no bar to

federal habeas review.” Cone v. Bell, 556 U.S. 449, 466 (2009).

      The trial court stated that it would deny Boucher’s ineffective assistance claim

on the merits if it possessed jurisdiction. However, the trial court concluded that it

lacked jurisdiction, and the Wyoming Supreme Court found no error in its ruling.

Whether a conditional statement regarding the manner in which a state court would

      2
        In Schreibvogel, the Wyoming Supreme Court held that a petitioner was
barred from seeking post-conviction relief for ineffective assistance of counsel
because he had also raised a claim of ineffective assistance of counsel on direct
appeal. Id. at 1102. By contrast, although Boucher’s ineffective assistance of
counsel claim involved the same issue, speedy trial rights, as a claim he raised on
direct appeal, he did not raise a claim of ineffective assistance of counsel on direct
appeal.
                                           -9-
rule if it had jurisdiction qualifies as an alternative merits adjudication is not entirely

clear. See generally Johnson v. McKune, 288 F.3d 1187, 1191-92 (10th Cir. 2002)

(explaining that a state court’s alternative merits ruling requires deference). Rather

than delve into this issue, we will simply apply de novo review to Boucher’s

ineffective assistance claim because we conclude it fails even under the more lenient

standard. See id. (applying de novo review instead of determining whether

ambiguous state court rulings required deference because claim failed regardless of

standard); see also Cannon v. Mullin, 383 F.3d 1152, 1159 (10th Cir. 2004) (“[A]

federal court may exercise its discretion to bypass the procedural issues and reject a

habeas claim on the merits.”).

       A petitioner claiming ineffective assistance of counsel must establish “that

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

guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, 466

U.S. 668, 687 (1984). “Strategic or tactical decisions on the part of counsel are

presumed correct, unless they were completely unreasonable, not merely wrong, so

that they bear no relationship to a possible defense strategy.” Moore v. Marr, 254

F.3d 1235, 1239 (10th Cir. 2001) (quotation and alteration omitted). The petitioner

must also show that “the deficient performance prejudiced the defense.” Strickland,

466 U.S. at 687. To establish prejudice, a “defendant must show that there is a

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

proceeding would have been different.” Id. at 694.



                                           -10-
      Boucher argues that counsel should have argued that pre-arrest delay violated

his right to a speedy trial and should have made a record of the reasons for that delay.

However, he provides no reason to think that the hypothetical record counsel could

have created would have been favorable. Everything in the record before us indicates

that Boucher himself was responsible for the pre-arrest delay. The prosecutor stated,

without objection from defense counsel, that Boucher had “been on the lam for nine

years, and so we’ve been unable to have the defendant here in a timely manner. So a

lot of this is really not the fault of the State.” Boucher fled from law enforcement

when he was finally apprehended, suggesting he was aware of serious charges against

him. And the Zukauckas affidavit shows that Boucher avoided a wide range of

ordinary activities, or engaged in those activities without using his real name and

identifying information, prior to his arrest. Boucher challenges the level of detail in

the affidavit, but fails to come forward with any evidence, or even particularized

allegations, suggesting the state was negligent in searching for him.

      In essence, Boucher asks us to presume a positive record could have been

created, and to judge counsel’s omission of pre-trial delay from her speedy trial

arguments in light of that hypothetical positive record. But in assessing an

ineffective assistance of counsel claim, “we presume that an attorney performed in an

objectively reasonable manner because his conduct might be considered part of a

sound strategy.” Bullock v. Carver, 297 F.3d 1036, 1051 (10th Cir. 2002). “Unlike a

later reviewing court, the attorney observed the relevant proceedings [and] knew of

materials outside the record.” Harrington, 562 U.S. at 105. Absent some particular

                                          -11-
basis to conclude otherwise, we must presume that trial counsel made a tactical

decision to avoid creating a record on the reason for pre-arrest delay, and that counsel

declined to argue that pre-arrest delay violated Boucher’s rights. Because Boucher

has not provided any basis to rebut this presumption, his ineffective assistance of trial

counsel claim fails. See Snow v. Sirmons, 474 F.3d 693, 730 n.42 (10th Cir. 2007)

(court cannot conclude that trial counsel was ineffective for failing to call a witness

because the petitioner did not show that the witness’ testimony would have been

favorable); United States v. Snyder, 787 F.2d 1429, 1432 (10th Cir. 1986) (courts

will not speculate that evidence counsel omitted would be positive when it is equally

likely the evidence would have been harmful).

       Because we conclude that Boucher’s ineffective assistance of trial counsel

claim lacks merit, we also conclude that appellate counsel was not deficient for

failing to raise this claim. See Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir.

2003) (“[I]f the issue is meritless, its omission will not constitute deficient

performance.”). Boucher also contends that his appellate counsel was ineffective for

failing to request a hearing to develop facts as to trial counsel’s ineffectiveness. See

Calene v. State, 846 P.2d 679, 692 (Wyo. 1993) (under Wyoming law, appellate

counsel generally must request a hearing to develop a record to raise ineffective

assistance of trial counsel on direct appeal). But Boucher again fails to provide any

indication that such a hearing would have produced favorable evidence. This failure

is fatal to his claim. See Snyder, 787 F.2d at 1432.



                                           -12-
       Although the procedural aspects of Boucher’s ineffective assistance claim are

debatable, the merits are not. Accordingly, he is not entitled to a COA. See Slack,

529 U.S. at 478 (if a “district court denies a habeas petition on procedural grounds,”

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, and that jurists of

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

ruling”).

                                            III

       For the foregoing reasons, we DENY a COA and DISMISS the appeal.




                                              Entered for the Court


                                              Carlos F. Lucero
                                              Circuit Judge




                                            -13-
