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

                                     TENTH CIRCUIT                        December 11, 2013

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 RANDALL D. SCHREIBVOGEL,

           Petitioner - Appellant,

 v.
                                                             No. 13-8065
 WYOMING DEPARTMENT OF                              (D.C. No. 2:12-CV-00113-NDF)
 CORRECTIONS STATE WARDEN, in                                  (D. Wyo.)
 his official capacity also known as Eddie
 Wilson,

           Respondent - Appellee.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, McKAY, and MURPHY, Circuit Judges.


       Randall Schreibvogel requests a certificate of appealability (“COA”) to appeal the

denial of his 28 U.S.C. § 2254 habeas petition. We deny a COA and dismiss the appeal.

                                             I

       Schreibvogel was convicted on two counts of first-degree sexual assault and one


       *
         This order is not binding precedent except under the doctrines of law of the case,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.
count of robbery in Wyoming state court. On direct appeal, Schreibvogel asserted,

among other claims, ineffective assistance of counsel and prosecutorial misconduct. The

Wyoming Supreme Court affirmed his convictions.

       After losing his direct appeal, Schreibvogel filed a petition for state post-

conviction relief raising new claims of ineffective assistance. Schreibvogel argued that

his appellate counsel was ineffective for failing to raise additional deficiencies in trial

counsel’s performance, including counsel’s failure to retain an expert to discuss the

effects of combining alcohol and Paxil, a medication taken by the victim, and counsel’s

failure to rebut evidence that the victim’s injuries were likely caused by a punch rather

than a fall. The Wyoming courts concluded that the new arguments were procedurally

barred.

       Schreibvogel then filed a § 2254 petition in federal district court, advancing five

specific ineffective assistance sub-claims. The district court dismissed Schreibvogel’s

petition and declined to grant a COA. It held that the claims raised for the first time in

Schreibvogel’s post-conviction petition were not procedurally barred, but rejected those

claims on the merits. The district court further ruled that the Wyoming Supreme Court’s

disposition of Schreibvogel’s remaining claims was reasonable. Schreibvogel now seeks

a COA from this court.

                                              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
                                             -2-
showing of the denial of a constitutional right.” § 2253(c)(2). To satisfy this standard,

Schreibvogel must demonstrate “that reasonable jurists could debate whether (or, for that

matter, agree that) the petition should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement to proceed further.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (quotation omitted).

                                             A

       Although Schreibvogel presented two of his sub-claims to the Wyoming courts in

a post-conviction petition, those sub-claims were rejected as barred by Wyo. Stat. § 7-14-

103(a)(iii). We typically 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), but in the interest of judicial efficiency we may proceed

to the merits of a § 2254 claim rather than consider a difficult procedural bar issue, see

Romero v. Furlong, 215 F.3d 1107, 1111 (10th Cir. 2000). We do so in this case.

       A petitioner claiming ineffective assistance of counsel must demonstrate “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 v. Washington, 466 U.S. 668, 687, 694 (1984).

In applying this standard, “we give considerable deference to an attorney’s strategic

decisions and recognize that counsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of reasonable professional
                                            -3-
judgment.” Bullock v. Carver, 297 F.3d 1036, 1044 (10th Cir. 2002) (quotation omitted).

       Schreibvogel claims that his attorney was ineffective in failing to procure expert

testimony as to the effects of mixing Paxil and alcohol. He argues that such evidence

would have cast doubt on the victim’s ability to accurately remember the events at issue

and may have helped explain her injuries. However, the victim freely admitted on the

stand that she did not remember portions of the night in question and did not remember if

she was hit or fell. Additionally, trial counsel adduced testimony from the victim that she

consumes alcohol with Paxil and testimony from a nurse that Paxil and alcohol should

not be combined. Given counsel’s exploration of the issue, and the potential implications

for Schreibvogel of focusing the jury’s attention on the victim’s impaired state, we agree

with the district court that Schreibvogel has not established constitutionally defective

performance.

       Schreibvogel also argues that his attorney should have called an expert to rebut

opinion testimony that the victim’s injuries were consistent with being punched.

“Strickland does not enact Newton’s third law for the presentation of evidence, requiring

for every prosecution expert an equal and opposite expert from the defense.” Harrington

v. Richter, 131 S. Ct. 770, 791 (2011). Trial counsel vigorously cross-examined the

witness making this claim, eliciting an admission that the injury also could have come

from a fall. See id. (“In many instances cross-examination will be sufficient to expose

defects in an expert’s presentation.”). And we must defer to counsel’s reasonable

decisions to “avoid activities that appear distractive from more important duties.” Id. at
                                            -4-
789 (quotation omitted). Schreibvogel has not demonstrated that trial counsel’s strategy

to challenge the prosecution’s evidence was unreasonable.

                                             B

       Schreibvogel’s remaining ineffective assistance sub-claims were presented to and

denied by the Wyoming state courts. To prevail on these claims, Schreibvogel must

show that the state courts’ adjudication 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.”

§ 2254(d)(1), (2). We conclude that Schreibvogel has not cleared this high hurdle.

       Schreibvogel contends that his trial counsel was ineffective in failing to object to

statements from several witnesses who testified the victim told them that she had been

hit. In cross-examination, trial counsel highlighted that discrepancy with the victim’s

testimony that she could not remember whether she had been hit. The Wyoming

Supreme Court stated that the witnesses’ testimony “was potentially admissible under

several evidentiary rules,” and reasonably concluded that Schreibvogel had not

established that counsel made an impermissible tactical decision not to object.

       Schreibvogel also argues that counsel was ineffective for failing to object to victim

impact testimony from the victim and her husband. The Wyoming Supreme Court held

that Schreibvogel failed to establish that an objection would have been sustained, noting

the court’s precedent that victim impact testimony is admissible to bolster the victim’s

credibility after that credibility is challenged by the defense. See Barnes v. State, 858
                                            -5-
P.2d 522, 534-35 (Wyo. 1993). This conclusion was reasonable. Thus, Schreibvogel has

not shown that the failure to object constituted deficient performance. See Parker v.

Scott, 394 F.3d 1302, 1321-22 (10th Cir. 2005) (failure to object to testimony “trial

counsel could have reasonably concluded” was admissible under state law does not

constitute deficient performance).

       Lastly, Schreibvogel claims that counsel should have objected when the

prosecution asked Schreibvogel whether other witnesses were mistaken in their

testimony. The State has conceded that this line of questioning violated a clear rule of

law, but the Wyoming Supreme Court held that it was not prejudicial. Schreibvogel has

not shown that the holding was unreasonable, given that the other witnesses’ testimony

was properly before the jury and the questioning was not pervasive. See Harrington, 131

S. Ct. at 786 (section 2254 petitioner must show there is “no possibility fairminded jurists

could disagree that the state court’s decision conflicts with [the Supreme] Court’s

precedents”).

                                            III

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


                                          Entered for the Court



                                          Carlos F. Lucero
                                          Circuit Judge


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