                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          June 28, 2005
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    CARL THOMAS CHAPMAN,

                Petitioner-Appellant,

    v.                                                   No. 04-8020
                                                    (D.C. No. 02-CV-56-D)
    SCOTT ABBOTT, Warden;                                 (D. Wyo.)
    ATTORNEY GENERAL OF THE
    STATE OF WYOMING,

                Respondents-Appellees.


                            ORDER AND JUDGMENT            *




Before BRISCOE , ANDERSON , and MURPHY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Carl Thomas Chapman appeals the district court’s denial of his petition for

a writ of habeas corpus under 28 U.S.C. § 2254. We have jurisdiction under

28 U.S.C. § 1291 and 28 U.S.C. § 2253, and we affirm.

                                            I

      The facts underlying this action are set forth in the Wyoming Supreme

Court’s decision on Mr. Chapman’s direct appeal.       Chapman v. State , 18 P.3d

1164, 1167-68 (Wyo. 2001). They need not be repeated here, except to note that

Mr. Chapman suffers from an eighty percent hearing loss. He argues that,

because he was not able to hear his trial, he was deprived of his constitutional

rights to confront witnesses, to the assistance of counsel, and to due process, and

that his counsel was ineffective for not ensuring that his hearing problems were

accommodated at trial. He further contends that the federal district court erred in

not providing him an evidentiary hearing on his habeas petition.    Mr. Chapman’s

petition was filed after the effective date of the Antiterrorism and Effective Death

Penalty Act (AEDPA), and thus it is governed by AEDPA. See Williams v.

Taylor, 529 U.S. 420, 429 (2000). This court granted a certificate of appealability

on all issues raised by Mr. Chapman and briefing has been received from the

respondents/appellees.




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                                               A

       AEDPA restricts the circumstances under which federal courts may provide

evidentiary hearings “[i]f the applicant has failed to develop the factual basis of a

claim in State court proceedings.” 28 U.S.C. § 2254(e)(2). “Under the opening

clause of § 2254(e)(2), a failure to develop the factual basis of a claim is not

established unless there is a lack of diligence, or some greater fault, attributable

to the prisoner or the prisoner’s counsel.”        Williams , 529 U.S. at 432; see also id.

at 437. “Diligence will require in the usual case that the prisoner, at a minimum,

seek an evidentiary hearing in state court      in the manner prescribed by state law    .”

Id. at 437 (emphasis added).

       In the state court system, Mr. Chapman raised his claims on direct appeal to

the Wyoming Supreme Court. During that proceeding, he requested an

evidentiary hearing. The Wyoming Supreme Court denied the request because

Mr. Chapman did not present adequate factual support (specifically, an affidavit)

for his request as required by its precedent. Thus, the record indicates that Mr.

Chapman did not seek an evidentiary hearing “in the manner prescribed by state

law.” Mr. Chapman argues that the court erred in holding that Wyoming law

required him to present an affidavit in connection with his request for a hearing,

but this court defers to state courts on the interpretation of state law.      See

Burleson v. Saffle , 278 F.3d 1136, 1144 (10th Cir. 2002)        .


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      Further, in Cannon v. Mullin, 383 F.3d 1152, 1176-77 (10th Cir. 2004),

cert. denied, 125 S. Ct. 1664 (2005), this court held that diligence may require a

petitioner to present affidavits to support his state-court request for an evidentiary

hearing. “The federal district court should not be required to conduct an

evidentiary hearing on a claim when the applicant for relief has not presented

evidence that would be readily available if the claim were true.” Id. at 1177; see

also United States v. Cervini, 379 F.3d 987, 994 (10th Cir. 2004), cert. denied,

125 S. Ct. 1592 (2005) (“District courts are not required to hold evidentiary

hearings in collateral attacks without a firm idea of what the testimony will

encompass and how it will support a movant’s claim.”). Mr. Chapman has never

presented an affidavit to the Wyoming courts or the federal district court, and he

has not averred that somehow he was prevented from doing so. Because

Mr. Chapman is the only person who knows how much he heard of his trial, and

yet he has not presented an affidavit providing this information, we must conclude

that he has not been diligent in seeking an evidentiary hearing. See Cannon, 383

F.3d at 1177 (holding that, where petitioner’s friends and family allegedly would

testify in support of his claims, his failure to include their affidavits tends to

indicate lack of diligence, absent an impediment to presenting them); id. (when

petitioner and his counsel were the only two people who knew the facts, and

petitioner submitted his own affidavit, petitioner had been diligent because there


                                           -4-
was nothing more he could do to develop the record). There is no contention that

Mr. Chapman otherwise meets the requirements of § 2254(e)(2), and therefore the

district court did not err in denying Mr. Chapman an evidentiary hearing.

                                          B

      Mr. Chapman argues that because he could not hear his trial, he was denied

his constitutional rights to confront witnesses, to the assistance of counsel, and to

due process. Our review of the Wyoming Supreme Court’s decision is under

AEDPA’s deferential standards because the state court’s decision was based on

substantive considerations. See Le v. Mullin, 311 F.3d 1002, 1010, 1011 n.2 (10th

Cir. 2002) (per curiam); Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999); see

also Chapman, 18 P.3d at 1176. Under AEDPA, we may only grant relief if the

Wyoming Supreme Court’s ruling “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States” or “was based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding.” 28

U.S.C. §§ 2254(d)(1), (2). The Wyoming Supreme Court’s factual findings are

presumed to be correct unless Mr. Chapman rebuts them with clear and

convincing evidence. Id. § 2254(e)(1).

      Mr. Chapman argues that it was unreasonable in light of the record for the

Wyoming Supreme Court to determine that he had failed to show that he could not


                                          -5-
hear his trial. Our review of the appellate record, however, indicates that the

conclusion was not unreasonable. No evidence in the record unequivocally

establishes that Mr. Chapman did not hear his trial. While the record does

support the existence of a hearing problem, it also tends to show that, despite this

acknowledged hearing problem, Mr. Chapman heard and understood the

proceedings against him. For example, the record contains a transcript of an

in-chambers conference in which Mr. Chapman made remarks indicating that,

while in the courtroom, he had heard the prosecutor’s questions and his wife’s

responses during her examination.

      Further, Mr. Chapman never informed the court during the trial that he

could not understand the proceedings due to his hearing problem. Cf. Valladares

v. United States, 871 F.2d 1564, 1566 (11th Cir. 1989) (“To allow a defendant to

remain silent throughout the trial and then, upon being found guilty, to assert a

claim of inadequate translation would be an open invitation to abuse.”); United

States v. Vargas, 871 F. Supp. 623, 625 (S.D.N.Y. 1994) (holding that a

defendant complaining about the lack of an interpreter “cannot be permitted to sit

by without raising the issue or asking his attorney to do so, and then claim that his

conviction should be vacated because of a matter which would have been obvious

to him and for which a remedy was readily available if requested”). Mr. Chapman

argues that once the court was made aware of his pronounced hearing loss, it had


                                         -6-
a duty sua sponte to explore his hearing capabilities and potential

accommodations. In contrast to a profoundly deaf person, however, Mr. Chapman

had some hearing ability. The record shows that the trial judge was aware that

Mr. Chapman had the ability to hear if the conversation were sufficiently loud. It

also shows that there was an amplification system in use in the courtroom. Even

assuming the truth of Mr. Chapman’s contentions on appeal that he actually could

not hear the proceedings, there is nothing to indicate that the judge was or should

have been aware that Mr. Chapman’s hearing problems left him unable to

comprehend the proceedings. Under these circumstances, we do not believe that

the trial court had an obligation to act sua sponte. See Salazar v. State, 93

S.W.3d 339, 341 (Tex. Ct. App. 2002); People v. Phillips, 697 N.Y.S.2d 13, 14

(N.Y. App. Div. 1999); Commonwealth v. Wallace, 641 A.2d 321, 327 (Penn.

Super. Ct. 1994); see also Guillory v. Wilson, 402 F.2d 34, 35 (9th Cir. 1968).

      In sum, we do not find that the Wyoming Supreme Court’s decision was

contrary to or an unreasonable application of clearly established federal law or an

unreasonable determination of the facts. Consequently, we affirm the district

court’s decision regarding these claims.

                                           C

      Finally, Mr. Chapman argues that his trial counsel was ineffective for not

ensuring that he could hear the proceedings. He suggests that our review of this


                                           -7-
issue should be de novo, because neither the district court nor the Wyoming

Supreme Court addressed this aspect of his ineffective assistance claim. The

Wyoming Supreme Court, however, did address and reject this claim. Chapman,

18 P.3d at 1176. Thus, as stated above, our review is limited to determining

whether the state court’s decision was (1) contrary to or an unreasonable

application of clearly established federal law, or (2) an unreasonable

determination of the facts in light of the evidence before it. 28 U.S.C.

§§ 2254(d)(1), (2).

      To succeed with a claim of ineffective assistance of counsel, Mr. Chapman

must show that “counsel’s performance was deficient” and that “the deficient

performance prejudiced the defense.” Strickland v. Washington , 466 U.S. 668,

687 (1984) . “The benchmark for judging any claim of ineffectiveness must be

whether counsel’s conduct so undermined the proper functioning of the

adversarial process that the trial cannot be relied on as having produced a just

result.” Id. at 686.

      Mr. Chapman contends that counsel should have requested accommodations

for Mr. Chapman’s hearing problems and that he was prejudiced by counsel’s

conduct because, had he been able to hear the proceedings, he would have taken

the stand in his own defense. The record, however, does not support

Mr. Chapman’s arguments. Nothing in the record indicates that trial counsel


                                         -8-
ignored a request by Mr. Chapman to explore potential accommodations, or that

the circumstances were such that trial counsel had a duty to seek accommodations

sua sponte. Further, the purpose of the in-chambers conference was to ensure

Mr. Chapman understood that it was his right to testify on his own behalf. The

transcript of the conference reveals that Mr. Chapman’s counsel and

Mr. Chapman’s wife both believed that he should not testify. The participants in

the conference discussed reasons supporting this view, and those reasons were

largely unrelated to Mr. Chapman’s hearing problems. For example,

Mr. Chapman himself expressed concerns that he would not appear to his best

advantage while testifying because he would be impatient with the prosecutor’s

redundant questioning. While Mr. Chapman said once that it might be difficult

for him to be on the stand because of his hearing, the transcript of the entire

discussion indicates that the concerns about Mr. Chapman’s testifying were

clearly focused elsewhere. Examining the result of the state court’s decision, we

cannot find that it was contrary to or an unreasonable application of Strickland or

an unreasonable determination of the facts.

                                          II

      The judgment of the district court is AFFIRMED.

                                                     Entered for the Court

                                                     Mary Beck Briscoe
                                                     Circuit Judge

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