Bromley v. Phillips ( 2013 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT July 10, 2013
Elisabeth A. Shumaker
Clerk of Court
ROBERT E. BROMLEY,
Petitioner - Appellant,
v. No. 13-8018
(D.C. No. 2:08-CV-00031-CAB)
GREGORY A. PHILLIPS, Attorney (D. Wyo.)
General of the State of Wyoming,
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before LUCERO, McKAY, and MURPHY, Circuit Judges.
Robert Bromley requests a certificate of appealability (“COA”) to appeal the
district court’s denial of his 28 U.S.C. § 2254 habeas petition. We deny a COA and
dismiss the appeal.
I
Bromley was convicted in Wyoming state court of delivery of a controlled
substance, possession of a controlled substance, and possession with intent to deliver a
*
This order is not binding precedent except under the doctrines of law of the case,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.
controlled substance. He filed a direct appeal in the Wyoming Supreme Court, which
affirmed his convictions and sentence. Bromley then filed a § 2254 petition in federal
district court asserting three claims: (1) violation of due process; (2) ineffective
assistance of trial counsel; and (3) ineffective assistance of appellate counsel. The district
court stayed proceedings to allow Bromley an opportunity to exhaust claims two and
three. Bromley filed a petition for post-conviction relief in state district court raising
these two claims. The state court denied his petition, and the Wyoming Supreme Court
denied review. Bromley then returned to federal district court, which granted the
government’s motion to dismiss claim one as procedurally barred and granted summary
judgment in favor of the government on claims two and three. The district court denied a
COA. Bromley 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
showing of the denial of a constitutional right.” § 2253(c)(2). To satisfy this standard,
Bromley 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) (quotations omitted).
A
The district court concluded that Bromley’s first claim is procedurally barred. A
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§ 2254 petitioner may not obtain relief in federal court unless he “has exhausted the
remedies available in the courts of the State.” § 2254(b)(1)(A). The exhaustion
requirement obliges a petitioner to “fairly present[]” his federal constitutional claim to the
state court. Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 2006) (quotation omitted).
Fair presentation “requires more than presenting all the facts necessary to support the
federal claim to the state court or articulating a somewhat similar state-law claim.” Id.
(quotation omitted). “Fair presentation means that the petitioner has raised the substance
of the federal claim in state court.” Id. (quotation omitted).
We agree with the district court that Bromley did not fairly present his due process
claim to the state courts. On direct appeal, Bromley argued that the trial court erred in
admitting certain evidence of uncharged misconduct in violation of Wyo. R. Evid.
404(b). However, Bromley did not suggest that this claimed evidentiary error violated
his federal constitutional rights. He did not use the words “due process” or discuss the
elements of a due process claim. Although Bromley made two stray references to the
denial of a “fair trial,” these references were made in the context of his state law claim.
The Wyoming Supreme Court, in its detailed analysis of Bromley’s evidentiary error
allegation, did not understand him to be raising a due process claim. Bromley’s failure to
discuss due process with respect to the 404(b) issue is particularly notable because he
explicitly raised the due process issue elsewhere in his briefing. See Duncan v. Henry,
513 U.S. 364, 366 (1995) (failure to raise due process claim “is especially pronounced in
that respondent did specifically raise a due process objection before the state court based
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on a different claim”). And because Bromley is now procedurally barred from raising his
due process claim in state court, see Wyo. Stat. § 7-14-103(a)(i), the district court
properly dismissed it with prejudice.
B
Bromley’s ineffective assistance of counsel claims were presented to and denied
by the Wyoming state courts. To prevail on these claims, Bromley 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). 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).
Bromley first argues that his trial counsel was ineffective for failing to cross-
examine a government witness as to alleged inconsistencies between her trial testimony
and her prior statements to police. Bromley notes that this witness: (1) testified that she
purchased methamphetamine from Bromley on June 9, 2004, but had previously
identified the date as June 10; (2) testified that she attempted to purchase half a gram of
methamphetamine from Bromley for $60, but previously stated she purchased one gram
for $100; (3) testified that Bromley kept methamphetamine in a fanny pack but
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previously stated that it was presented to her in a small clear jeweler-type bag; and (4)
testified that she was twenty-five years old and had known Bromley since she was
seventeen, but previously stated that she had known Bromley for about four years.
Bromley was charged with delivering methamphetamine to this witness “on or
about” June 9, and thus any confusion as to the specific date would be immaterial.
Similarly, the witness’ statements regarding the length of time she knew Bromley were
barely relevant. The Wyoming courts’ conclusion that Bromley has not shown prejudice
as to these issues is entirely reasonable.
We reach the same conclusion as to the inconsistent statements regarding the
amount of methamphetamine the witness sought to purchase. Trial counsel effectively
undermined the credibility of this witness on cross-examination, eliciting an admission
that the witness was “delusional at the time” as a result of her methamphetamine use and
provoking the witness to provide contradictory testimony on collateral issues. The state
court reasonably concluded that the marginal decrease in credibility that cross-
examination on this issue would have provided would not have affected the outcome of
the proceeding. Further, the witness at issue was picked up near Bromley’s home under
the influence of methamphetamine and identified a fanny pack in which Bromley kept
methamphetamine and bundles of cash in $500 increments—details confirmed by a
search of Bromley’s home just a few days later. Thus, we conclude that Bromley has not
shown prejudice as to these statements.
We also agree with the state courts’ conclusion that the witness’ statements
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regarding the location from which Bromley produced the methamphetamine were not
inconsistent. At trial, the witness testified that Bromley “loaded a bowl” for her, but was
not asked about the physical location from which Bromley produced the
methamphetamine. The witness identified a fanny pack in which Bromley kept
methamphetamine and cash, but this identification is not inconsistent with her prior
statement that Bromley produced methamphetamine in a small plastic bag on the night in
question. Counsel was not ineffective for failing to raise this claimed inconsistency.
Bromley also argues that his trial counsel was ineffective for failing to adequately
investigate witnesses and for failing to adequately communicate with him. However,
Bromley does not specifically explain how these alleged failures caused him prejudice
and thus does not state an ineffective assistance claim. See United States v. Fisher, 38
F.3d 1144, 1147 (10th Cir. 1994) (ineffective assistance claim fails “where [petitioner’s]
allegations are merely conclusory in nature and without supporting factual averments”).1
And we agree with the district court that Bromley has not demonstrated that the
cumulative effect of his counsel’s claimed errors caused prejudice. See Hooper v.
Mullin, 314 F.3d 1162, 1178 (10th Cir. 2002) (cumulative error standard).
Finally, Bromley argues that his appellate counsel was ineffective for failing to
argue trial counsel’s ineffectiveness. Because we conclude that trial counsel was not
1
Bromley does not claim a “complete breakdown in communication” with his
attorney, which can give rise to a presumption of ineffectiveness. See Romero v.
Furlong, 215 F.3d 1107, 1111 (10th Cir. 2000).
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ineffective, this claim also fails. See United States v. Cook, 45 F.3d 388, 392-93 (10th
Cir. 1995) (“When a defendant alleges his appellate counsel rendered ineffective
assistance by failing to raise an issue on appeal, we examine the merits of the omitted
issue. If the omitted issue is without merit, counsel’s failure to raise it does not constitute
constitutionally ineffective assistance of counsel.” (quotation and citation omitted)).
III
We DENY Bromley’s request for a COA and DISMISS the appeal.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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