Barkell v. Crouse

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
November 7, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

GERALD P. BA RK ELL,

Petitioner - A ppellant,
v. No. 05-8045
BRENT CROUSE, W arden, Crowley
C ounty C orrectional Facility; R. O.
LAM PERT, Director, W yoming
Department of Corrections; PATRICK
CRANK, W yoming Attorney General,

Respondents - Appellees.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF W YOM ING
(D.C. NO . 04-CV-015-B)

Christopher Humphrey, Student Intern, (Diane E. Courselle, Director, on the
brief), Defender Aid Program, University of W yoming, College of Law, Laramie,
W yoming, for Petitioner - A ppellant.

David L. Delicath, Senior Assistant Attorney General, (Patrick J. Crank,
W yoming Attorney General, on the brief), Cheyenne, W yoming, for Respondents
- Appellees.

Before HA RTZ, HOL LOW A Y, and O’BRIEN, Circuit Judges.

HA RTZ, Circuit Judge.
 G erald B arkell w as convicted by a jury in W yoming state court on two

counts of third-degree sexual assault. After initiating an appeal of his conviction,

he sought a remand to the trial court for an evidentiary hearing regarding a claim

of ineffective assistance of counsel. The Wyoming Supreme Court denied the

request. Continuing his appeal without the benefit of an evidentiary hearing,

M r. Barkell contended that his trial counsel had been constitutionally ineffective

in the preparation for and conduct of the trial, and that the W yoming Supreme

Court had denied him due process and a meaningful appeal by denying his motion

for remand. On October 16, 2002, the court affirmed. Barkell v. State, 55 P.3d

1239, 1246 (W yo. 2002).

On January 14, 2004, M r. Barkell submitted an application for habeas relief

under 28 U.S.C. § 2254 in the United States District Court for the District of

W yoming, raising the same issues raised before the W yoming Supreme Court.

The district court denied relief but granted a certificate of appealability (COA).

See 28 U.S.C. § 2253(c)(1) (requiring COA). M r. Barkell now appeals to this

court. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. W e affirm with

respect to the claims of denial of due process by the W yoming Supreme Court and

ineffective assistance of counsel during trial. But we reverse and remand for

further proceedings on M r. Barkell’s claim that his attorney was ineffective in

preparing for trial. Because (1) he presented allegations to the federal district

court that, if true, would entitle him to relief; (2) he cannot be faulted for failure

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to develop the supporting evidence in state court; and (3) the state court has not

ruled on whether he would be entitled to relief if he were able to prove his

allegations, we do not defer to the state court’s ruling on his ineffective-

preparation claim and we grant him the opportunity to pursue that claim in federal

district court.

I. B ACKGR OU N D

M r. Barkell was charged with sexual assault after his 10-year-old

stepdaughter, BV, accused him of forcing her to engage in sexual acts on

successive nights in early July 1999. Diane Lozano, an attorney with the

W yom ing Public D efender’s O ffice, was appointed to represent him. On

October 26, 1999, Chris M cQueen, a contract public defender, replaced

M s. Lozano and represented M r. Barkell at trial on January 24 and 25, 2000. The

jury returned guilty verdicts on two counts of third-degree sexual assault, in

violation of W yo. Stat. Ann. § 6-2-304(a)(ii). M r. Barkell was sentenced to

consecutive terms of five-to-seven years’ imprisonment on each count.

M r. Barkell, again represented by the W yoming Public Defender’s Office,

filed a timely appeal to the Wyoming Supreme Court on June 5, 2000. On

February 23, 2001, he moved the court to remand the case to the trial court for

“an evidentiary hearing to establish the factual basis for a claim of ineffective

assistance of trial counsel based on the deficient performance by the trial

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counsel.” Aplt. App. Vol. I at 86. On M arch 1 the court denied the motion

without comment. It later affirmed M r. Barkell’s convictions.

M r. Barkell’s application under § 2254 claims (1) violation of his right

under the Sixth and Fourteenth Amendments to effective assistance of counsel,

and (2) violations of the rights to due process and a meaningful appeal by virtue

of the W yoming Supreme C ourt’s denial of his motion for a limited remand. O n

April 20, 2005, the district court denied the application, stating that the W yoming

Supreme Court’s adjudication of his claims was neither contrary to, nor an

unreasonable application of, clearly established federal law.

II. D ISC USSIO N

A. Denial of Remand

On appeal M r. Barkell contends that the state court’s refusal to grant a

limited remand to develop the record for his ineffectiveness claim violated his

rights to due process and a meaningful appeal. The W yoming Supreme Court

rejected this contention, holding that M r. Barkell could not “rely on mere

allegations and speculation” to justify a remand. Barkell, 55 P.3d at 1246.

1. Standard of Review

The A ntiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

provides that when a claim has been adjudicated on the merits in state court, a

federal court will grant habeas relief only when the applicant establishes that the

state court decision was “contrary to, or involved an unreasonable application of,

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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).

Under the “contrary to” clause, we grant relief only if the state
court arrives at a conclusion opposite to that reached by the Supreme
Court on a question of law or if the state court decides a case
differently than the [Supreme] Court has on a set of materially
indistinguishable facts. Under the “unreasonable application” clause,
relief is provided only if the state court identifies the correct
governing legal principle from the Supreme Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.
Thus w e may not issue a habeas w rit simply because we conclude in
our independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or incorrectly.
Rather, that application must also be unreasonable.

Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (internal quotation marks

and citations omitted).

2. M erits

Under AEDPA ’s standard of review, M r. Barkell is not entitled to relief on

this claim. M r. Barkell has identified no United States Supreme Court precedent

at the time of the W yoming court’s decision that clearly established his right to an

evidentiary hearing.

M r. Barkell argues that “[w]hen the state provides an appeal of right, the

defendant has a right to an appellate record that is adequate to present his claims

on appeal.” Aplt. Br. at 22. As authority for this proposition he cites Griffin v.

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Illinois, 351 U.S. 12 (1956); Draper v. Washington, 372 U.S. 487 (1963); and

M ayer v. Chicago, 404 U.S. 189 (1971). Griffin held that the Constitution

requires states to provide trial transcripts to indigent defendants appealing their

convictions. See 351 U.S. at 19. Draper held that a state cannot circumvent

Griffin by allowing an indigent defendant a free transcript only if the trial judge

decides that the defendant’s claims on appeal are not frivolous. See 372 U.S. at

499-500. And M ayer held that an indigent defendant is entitled to a free

transcript for purposes of appeal even if he has been convicted only of a

misdemeanor and fined rather than incarcerated. See 404 U .S. at 195-98. Thus,

these cases all deal with an indigent defendant’s right to obtain for appeal a

transcript of judicial proceedings that would be available to those w ho can afford

to pay for one, not, as here, an attempt to add to the record of those proceedings

by conducting supplemental proceedings. They do not provide clearly established

precedent for M r. Barkell’s argument.

In addition, M r. Barkell cites Cuyler v. Sullivan, 446 U.S. 335 (1980);

United States v. Cronic, 466 U.S. 648 (1984); Strickland v. Washington, 466 U.S.

668 (1984); and Evitts v. Lucey, 469 U.S. 387 (1985), for the proposition that he

was entitled to the effective assistance of counsel on his appeal. From that

proposition he argues that an evidentiary hearing was necessary for his appellate

counsel to provide adequate representation. But none of the cited cases addresses

denial of an evidentiary hearing in the course of an appeal. Cuyler held that a

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defendant with a privately retained lawyer, like a defendant with appointed

counsel, may raise a Sixth Amendment claim of ineffective assistance. See 446

U.S. at 344-45. Cronic held that most claims of ineffective assistance require

proof of deficient performance and that only rarely do the surrounding

circumstances justify a presumption of ineffectiveness. See 466 U.S. at 658-62.

Strickland addressed the “meaning of the constitutional requirement of effective

assistance,” 466 U.S. at 686, holding that to prove an ineffectiveness claim the

defendant must show that counsel’s performance “fell below an objective standard

of reasonableness,” id. at 688, and that the deficiency prejudiced the defense, see

id. at 687. Evitts held that due process guarantees the effective assistance of

counsel to a defendant pursuing a first appeal as of right. See 469 U.S. at 396.

These cases simply do not consider the issue now before us. Attractive as

M r. Barkell’s legal contention may be, he has not shown that the W yoming

Supreme Court decision was “contrary to, or involved an unreasonable application

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

United States.” 28 U.S.C. § 2254(d)(1); see Penry v. Johnson, 532 U.S. 782, 795

(2001) (state court’s decision was not unreasonable or contrary to federal law

when there were “substantial” differences between the case before the state court

and the Supreme C ourt case relied on by the defendant). Nevertheless, as we

shall see in addressing M r. Barkell’s allegations of pretrial ineffectiveness of

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counsel, the state court’s decision to refuse an evidentiary hearing can affect our

review of his other claims.

B. Ineffective Assistance

A defendant making an ineffective-assistance-of-counsel claim must show

both that counsel’s performance “fell below an objective standard of

reasonableness” and that “the deficient performance prejudiced the defense.”

Strickland, 466 U .S. at 687-88. Review of counsel’s performance under the first

prong of the Strickland test is highly deferential. “[C]ounsel is strongly presumed

to have rendered adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment.” Id. at 690. To be deficient, the

performance must be “outside the wide range of professionally competent

assistance.” Id. Counsel’s decisions are presumed to represent “sound trial

strategy”; “[f]or counsel’s performance to be constitutionally ineffective, it must

have been completely unreasonable, not merely wrong.” Boyd v. Ward, 179 F.3d

904, 914 (10th Cir. 1999) (internal quotation marks omitted). As for the

prejudice prong, the defendant must establish a reasonable probability that “but

for counsel’s unprofessional errors, the result of the proceeding would have been

different.” United States v. Stevens, 978 F.2d 565, 568 (10th Cir. 1992) (internal

quotation marks omitted). If the defendant is unable to show either “deficient

performance” or “sufficient prejudice,” the ineffectiveness claim will fail.

Strickland, 466 U.S. at 700.

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 M r. Barkell raises a number of claims of ineffective assistance of his trial

counsel. For purposes of analysis it is convenient to divide them into tw o groups.

The first group we address will be those that rest on the record of the state trial

court. The second group consists of claims for which M r. Barkell relies, at least

in part, on evidence outside that record. Because the claims in the first group all

relate to conduct during trial, we will refer to them as “Trial Errors.” The

remaining claims allege deficiencies in pretrial preparation and will be called

“Pretrial Errors.”

1. Alleged Trial Errors

M r. Barkell argues that M r. M cQueen failed to represent him adequately

during trial and lacked “basic legal knowledge concerning trial practice, rules and

standards.” Aplt. Br. at 25. M r. Barkell first complains that M r. M cQueen did

not question BV’s competency to testify, arguing that a hearing on the matter

would have “reinforced to BV [the] seriousness of the testimony” and, if she had

been found incompetent, would have “substantially weaken[ed] the state’s case.”

Id. at 34. He also suggests that such a hearing would have helped him prepare for

trial. W e are unpersuaded. M r. Barkell does not cite any evidence that BV, who

was 11 at the time of trial, was incompetent to testify. And as for the contention

that a hearing on BV’s competency would have impressed her with the

seriousness of her testimony or provided a useful practice run for cross-examining

her at trial, M r. Barkell provides no basis for his speculation that BV might have

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changed her testimony after such a hearing, nor does he explain how

M r. M cQueen may have altered his cross-examination strategy as a result of the

proposed hearing. M ore importantly, an attorney does not provide deficient

representation by failing to pursue an unfounded motion, regardless of the

possible tactical advantages that might result from doing so. Indeed, we would

fault an attorney for intentionally abusing the judicial process in that manner. See

Putnam v. Head, 268 F.3d 1223, 1246 (11th Cir. 2001) (“Although an attorney

has an ethical duty to advance the interest of her client, that duty is limited by an

equally solemn duty to comply with the law and standards of professional

conduct.” (internal quotation marks and brackets omitted)). Accordingly, we

reject this claim.

Second, M r. B arkell criticizes M r. M cQueen’s cross-examination of BV,

stating that he “used words, complex questions, and lines of reasoning that

confused not only BV, but also the court.” Aplt. Br. at 35. The W yoming

Supreme Court did not specifically address M r. Barkell’s contention that

M r. M cQueen’s cross-examination of BV was confusing, but rejected the general

claim of ineffective cross-examination of BV on the ground that M r. Barkell had

“fail[ed] to elucidate any failings that fall below the standard of a reasonably

competent attorney, especially any that were likely to have changed the outcome

of the trial.” Barkell, 55 P.3d at 1244. The W yoming Supreme Court was not

unreasonably construing Strickland in determining that a few poorly framed

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sentences did not constitute ineffective representation. Applying AEDPA’s

deferential standard of review, we reject this claim of ineffective assistance.

M r. Barkell also complains that M r. M cQueen’s cross-examination of the

state’s expert witness was deficient, particularly in inadvertently eliciting a

statement from the expert that children in stepparent households are more likely

to be abused than other children. The W yoming Supreme Court rejected this

claim, deciding that M r. M cQueen’s cross-examination of the state’s expert was

“relevant and useful to the theory which the defense was pursuing.” Id. at 1244.

Under A EDPA deference, we affirm the denial of this claim. W e note, however,

that this claim is intimately tied to M r. Barkell’s claim of ineffective pretrial

preparation. W e are not at this point disposing of the claim that deficient

investigation of the case led M r. M cQueen (1) to ask questions that had

prejudicial consequences and (2) to fail to ask questions that would have elicited

helpful testimony.

M r. Barkell next complains that M r. M cQueen did not do enough to

undermine BV’s credibility. He argues that M r. M cQueen called only three

witnesses to challenge her testimony (two babysitters and her mother’s aunt) and

that he evoked only “minimally useful testimony” from them concerning BV’s

tendency to lie. Aplt. Br. at 40. M r. Barkell’s sole argument before the

W yoming Supreme Court regarding these witnesses was to complain of

M r. M cQueen’s unsuccessful attempt to introduce testimony of specific instances

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of BV’s untruthfulness, and to surmise that had M r. M cQueen understood the

W yoming evidentiary rules, he would have been able “to come up w ith an

alternative theory of relevance for certain instances of untruthfulness— such as

demonstrating BV’s particular motives to lie about M r. Barkell.” Aplt. App. Vol.

II at 390. The W yoming Supreme Court rejected this argument, noting that

M r. M cQueen was able to elicit testimony regarding BV’s reputation for

untruthfulness, and that no prejudice had resulted from the alleged shortcomings.

See Barkell, 55 P.3d at 1245. In his brief to us, M r. Barkell does not explain what

more the witnesses could have done to undermine BV’s testimony, except to

suggest that testimony regarding specific falsehoods could have been admitted to

show that “when BV thought she was in trouble, she simply lied and blamed

someone else.” A plt. Br. at 46. But because this suggestion was not made to

support M r. Barkell’s ineffectiveness claim in the W yoming Supreme Court, the

argument based on this suggestion is unexhausted, see 28 U.S.C. § 2254(b)(1)(A )

(relief is not available under § 2254 unless “the applicant has exhausted the

remedies available in the courts of the State”); Picard v. Connor, 404 U.S. 270,

275-76 (1971) (“[T]he federal claim must be fairly presented to the state

courts . . . . Only if the state courts have had the first opportunity to hear the

claim sought to be vindicated in a federal habeas proceeding does it make sense to

speak of the exhaustion of state remedies.”). And in any event, failure to make

this creative evidentiary argument at trial would not be “outside the wide range of

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professionally competent assistance.” Strickland, 466 U.S. at 690. The state

court’s decision that the alleged errors in presenting these defense witnesses did

not constitute ineffective assistance was not contrary to or an unreasonable

application of federal law. See 28 U.S.C. § 2254(d).

M r. Barkell further argues that M r. M cQueen’s closing argument was

deficient because he “brought out a few inconsistencies in BV’s testimony, but

failed to point out many of the most important ones.” Aplt. Br. at 41.

M r. Barkell specifically points to BV’s misstating by eight months the date that

she and her family had moved in w ith M r. Barkell. The W yoming Supreme Court

rejected this argument, stating that M r. M cQueen had identified some

inconsistencies in BV’s testimony and that the “few additional inconsistencies

identified by Barkell . . . are trivial at best and unrelated to the elements of the

sexual abuse allegations. Counsel’s decision not to list for the jury every possible

inconsistency in the testimony cannot be said to be ineffective assistance.”

Barkell, 55 P.3d at 1244. W e agree. Jurors pay attention. They are highly likely

to observe the more significant inconsistencies in a witness’s testimony, and they

may well be more persuaded of the importance of an inconsistency if they think

that they have made the discovery on their own rather than on the importuning of

an advocate. Cf. Cannon v. M ullin, 383 F.3d 1152, 1164 (10th Cir. 2004) (“It is

not . . . always the best trial strategy to exploit every inconsistency in the

statements of a witness, even a witness called by opposing counsel.”). The state

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court’s rejection of this claim was not contrary to or an unreasonable application

of federal law. See 28 U.S.C. § 2254(d).

M r. Barkell finally claims that M r. M cQueen’s representation was

ineffective “because he lacked rudimentary knowledge of trial procedures and

legal principles.” Aplt. Br. at 43. The W yoming Supreme Court denied the

various claims made by M r. Barkell in this section of his brief because the alleged

errors did not result in prejudice. See Barkell, 55 P.3d at 1244-45. W e agree.

2. Alleged Pretrial Errors

M r. Barkell makes tw o claims of ineffective assistance related to

M r. M cQueen’s preparation for trial: (1) failure to investigate and (2) failure to

consult an expert witness. W e address each in turn.

a. Failure to Investigate

M r. Barkell claims that M r. M cQ ueen failed to investigate adequately BV’s

school and counseling experiences, which would have led to evidence

undermining her credibility. He asserts that he informed M r. M cQ ueen before

trial that BV had been in counseling, but M r. M cQueen never attempted to speak

with her counselors. He also asserts that he specifically requested that

M r. M cQueen interview and call at trial BV’s school counselor and fourth-grade

teacher, whose testimony would have impeached BV’s credibility, yet

M r. M cQueen failed to do so. He states that M r. M cQueen should have known

that counseling records would likely contain information regarding BV’s alleged

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tendency to lie, as well as information regarding “her feelings towards and

possible motives against M r. Barkell,” Aplt. Br. at 28, and that under these

circumstances “a reasonable attorney would have realized that family and school

counseling involving the alleged victim could be a valuable resource in

determining the alleged victim’s personality, propensity and motives to lie,” id. at

28-29. He contends that if M r. M cQueen had obtained this evidence, it “would

have changed the outcome at trial.” Id. at 28.

The W yoming Supreme Court rejected this claim on the ground that “a

defendant does not meet his burden to show his counsel’s performance was

deficient by mere speculation or equivocal inferences as to potential witnesses

and testimony that could have been called at trial.” Barkell, 55 P.3d at 1243. The

court faulted M r. Barkell for making “the assumption that, because BV was in

counseling, there may be evidence in her counseling records to support his

defense theory that she was either dishonest or motivated to fabricate the

allegations of sexual assault,” and added that “[b]ecause Barkell does not identify

any specific testimony or evidence that the counselors would have offered, the

presumption that trial counsel rendered adequate assistance and exercised

reasonable professional judgment is not rebutted.” Id.

But M r. Barkell has identified such evidence for us. He has submitted a

copy of his state-court motion for a limited remand, which included several

attachments. A self-styled “affidavit” (unnotarized) from M r. Barkell stated that

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he had discussed BV’s counseling history with M r. M cQueen and had asked him

to interview Sue M axted, BV’s counselor, and M rs. Hartman, BV’s fourth-grade

teacher, but that M r. M cQueen had not tried to obtain information regarding the

counseling or otherwise complied with his requests. M r. Barkell also attached an

affidavit from his sister, Lynn Allred, who had attended several pretrial meetings

with M r. M cQueen, in which she asserted that “M r. M cQueen failed to talk to or

investigate many of the possible witnesses that we had presented to him,”

including M s. M axted and BV’s teachers. She stated that M r. M cQueen “failed to

get many of the documents and reports of the victim’s past problems, including

the reports from . . . their family counselor and reports from the previous safe

houses and foster homes which the victim was in.” Aplt. A pp. Vol. I at 144.

In addition, copies of BV’s counseling records were attached to the motion.

These records, which relate to counseling sessions when BV was in grades one

through four, refer several times to BV’s tendency to lie. The records from first

grade contain three references to her lying, and records from second grade contain

two such references.

In light of the support for M r. Barkell’s deficient-investigation claim, we

must ask whether we can consider this support and, if so, how that affects our

standard of review of the decision by the W yoming Supreme Court. The answer

to these questions depends on whether (1) M r. Barkell made adequate efforts to

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present evidence in state court and (2) the W yoming court ruled on whether

M r. Barkell’s allegations, if true, would establish an ineffective-assistance claim.

Habeas applicants w ho have not received an evidentiary hearing in state

court may be entitled to an evidentiary hearing in federal court. AEDPA states:

If the applicant has failed to develop the factual basis of a claim in
State court proceedings, the court shall not hold an evidentiary
hearing on the claim unless the applicant shows that—
(A) the claim relies on—
(I) a new rule of constitutional law , made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable; or
(ii) a factual predicate that could not have been
previously discovered through the exercise of due diligence;
and
(B) the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have found
the applicant guilty of the underlying offense.

28 U.S.C. § 2254(e)(2). “U nder 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 v. Taylor, 529 U.S. 420, 432 (2000). “If the prisoner did not

fail to develop the factual basis for his claim in State court, § 2254(e)(2) is not

applicable and a federal habeas court should proceed to analyze whether an

evidentiary hearing is appropriate or required under pre-AEDPA standards.”

Cannon v. M ullin, 383 F.3d 1152, 1176 (10th Cir. 2004) (internal brackets and

quotation marks omitted). Thus, the threshold issue is w hether M r. Barkell

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exercised sufficient diligence in state court to avoid the strictures of § 2254(e)(2).

W e believe that he did.

Our conclusion is based on our reading of W yoming law before

M r. Barkell’s appeal. In most jurisdictions claims of ineffective assistance are

brought in postconviction collateral proceedings. See Massaro v. United States,

538 U.S. 500, 504, 508 (2003) (agreeing with most federal circuits and a

“growing majority of state courts” that ineffectiveness claims need not be raised

on direct appeal and that “in most cases [postconviction collateral proceedings

are] preferable to direct appeal for deciding claims of ineffective assistance.”).

Evidence of ineffectiveness can be gathered after trial, or even after exhaustion of

direct appeals, and presented to the court for consideration. W yoming law,

however, allows criminal defendants to raise ineffectiveness claims only on direct

appeal. See Calene v. State, 846 P.2d 679, 683 (W yo. 1993). To supplement the

trial record with evidence of ineffectiveness, the defendant must move the state

supreme court (the state’s sole appellate court) for a limited remand. See id. at

692.

As previously described, M r. Barkell submitted such a motion,

accompanied by several supporting attachments. The W yoming Supreme Court

denied the motion for limited remand w ithout explanation. In its decision on the

merits, however, the court explained as follows its rejection of his claim that he

was improperly denied a remand:

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 [M r.] Barkell claims that he w as entitled to remand for an evidentiary
hearing on his claims of ineffective assistance of counsel, citing
Calene v. State, 846 P.2d 679 (W yo. 1993). The present case,
however, is more similar to Griswold v. State, 994 P.2d 920, 930-31
(W yo. 1999). Appellant cannot rely on mere allegations and
speculation for the purpose of obtaining a remand to develop a record
on his claims of ineffective assistance. W e previously denied
Barkell’s M otion for a Partial Remand and, in his appellate brief, he
provides no additional facts or argument justifying a remand.

Barkell, 55 P.3d at 1245-46.

If the state court’s denial of an evidentiary hearing was the consequence of

M r. Barkell’s “failure” to comply with established requirements of state law, then

under AEDPA he is not entitled to such a hearing in federal court and we grant

deference under § 2254 to the state court’s decision on the merits. See 28 U.S.C.

§ 2254(d) (deferring to state court’s rulings of law ); see also § 2254(e)(1) (“[A]

determination of a factual issue made by a State court shall be presumed to be

correct.”). Not complying with established requirements w ould ordinarily

constitute the fault necessary to impose the strict limitations of § 2254(e)(2) on

the opportunity for a federal evidentiary hearing.

But if M r. Barkell complied with what reasonably appeared to be the

established state-law requirements, he cannot be said to have “failed to develop

the factual basis of [his] claim,” id. § 2254(e)(2), even if his reasonable

interpretation of state law turned out to be wrong, see W illiams, 529 U.S. at 432

(such a failure “is not established unless there is a lack of diligence, or some

greater fault”); cf. Osborn v. Shillinger, 861 F.2d 612, 618 (10th Cir. 1988) (“[I]f

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a petitioner could not reasonably have been aware that a procedural rule w ould

prevent the court from addressing the merits of his claim, his violation of that rule

cannot bar federal review.”). In our view, M r. Barkell’s efforts complied with a

reasonable (although apparently incorrect) interpretation of the mandates of

W yoming law as it stood before his appeal. W e do not question the W yoming

Supreme Court’s construction of W yoming law. As the dissent states, that court

has the last word on whether M r. Barkell’s request for an evidentiary hearing

satisfied the requirements of W yoming law at the time of its ruling on that

request. But whether M r. Barkell, for purposes of § 2254(e)(2), was at fault in

not obtaining an evidentiary hearing depends not on how W yoming law was

construed in his own appeal but, rather, on what the law reasonably appeared to

be at the time he filed his request for an evidentiary hearing. In other w ords, it is

clear (because the W yoming Supreme Court said so) that his request for an

evidentiary hearing was inadequate, but whether this inadequacy triggers denial of

a federal evidentiary hearing under § 2254(e)(2) depends on whether he was

negligent (or worse) in submitting an inadequate request. On this point we do not

defer to the W yoming courts. Indeed, a state court would have no occasion to

determine w hether the defendant has satisfied the § 2254(e)(2) requirements for a

federal evidentiary hearing, so we have no state adjudication on the matter to

which we could defer.

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 Turning, then, to the content of W yoming law when M r. Barkell moved for

an evidentiary hearing, the requirements for obtaining a remand had been set forth

in the W yoming Supreme Court decision in Calene. That decision held that a

defendant seeking an evidentiary hearing to develop a factual record must submit

a motion for remand that is “appropriately supported by contentions defining and

supporting any ineffectiveness claim in detail and supported, as may be

appropriate, by affidavit sufficient to establish substantiality.” Calene, 846 P.2d

at 692; see id. at 687 (“[I]t is necessary for serious and specific allegations of

ineffectiveness to be sufficiently stated and documented to show a real issue

before the trial court can be put to the additional requirement of providing an

evidentiary hearing.”). The W yoming Supreme Court remanded for an

evidentiary hearing in that case. Id. at 694. The remand w as predicated solely on

“the letter of complaint by appellant addressed to the trial court.” Id. at 684. The

appellant had been convicted of charges relating to theft of an automobile. Id. at

681. He admitted painting the vehicle but denied knowing that it was stolen,

saying that he was simply hired to do the painting. Id. at 682. His letter asserted

that he had informed his attorney of witnesses who could testify to his lack of

knowledge and other exculpatory matters. Id. The court concluded:

W e do not assume or determine that valuable witnesses did exist or
that a failure of investigation and preparation adversely denied
valuable testimony to the defendant. W e find the contentions
sufficiently substantial in the record now presented that a hearing
should be held. At the hearing, defense counsel can testify and

-21-
 Calene can provide additional evidence for any substantiation
regarding the usefulness of non-called witnesses as evidence upon
which the trial court’s decision may be rendered regarding the
standard of counsel performance.

Id. at 693. Contrary to the dissent, we see nothing in the Calene opinion to

suggest that the W yoming Supreme Court was giving Calene “a break,” Dissent at

7, and holding him to less stringent requirements than would be imposed on later

appellants seeking an evidentiary hearing.

M r. Barkell could reasonably have believed that his request for an

evidentiary hearing met the Calene standard by making specific allegations of his

counsel’s pretrial failures to follow substantial leads from his client and resulting

prejudice. M r. Barkell’s allegations may have been unsworn, but M r. Calene’s

clearly were. Uncertain why the W yoming Supreme Court denied him an

evidentiary hearing, we believe that M r. Barkell did not exhibit the fault required

by W illiam s, 529 U.S. at 432, to bring him under § 2254(e)(2) for not obtaining

an evidentiary hearing in state court. It is useful to contrast this case with two in

which the defendant’s showing was held inadequate. First, Calene, 846 P.2d at

687, cites Leach v. State, 836 P.2d 336 (W yo. 1992), as providing an example of a

showing that did not support remand for a hearing. In that case the support for a

hearing in the motion for remand consisted only of the following:

2. It is Appellant’s contention that his counsel at trial was
ineffective, and he desires that the issue of ineffectiveness of
counsel be raised on this appeal.

-22-
 3. That there is no record of objection to ineffective assistance at
the trial court level, nor does the present record contain facts
necessary to develop appellant’s claim.

Leach, 836 P.2d at 341. M r. Barkell’s showing is far stronger. Second, on

M r. Barkell’s appeal the W yoming court stated that his case was more similar to

Griswold v. State, 994 P.2d 920, 930-31 (W yo. 1999), than to Calene. See

Barkell, 55 P.3d at 1245-46. But in Griswold the W yoming Supreme Court’s only

discussion regarding the request for an evidentiary hearing was the following:

Relying on Calene v. State, 846 P.2d 679 (W yo. 1993), Grisw old
argues only that “appellate counsel is filing a M otion for Partial
Remand and Affidavit in Support Thereof for the purpose of having
the matter remanded to the District Court for the taking of evidence
on this issue.” W e denied his M otion for Partial Remand, finding
that Grisw old failed to provide a substantial factual basis for his
claim. M oreover, in his appellate brief, Grisw old provides no facts
or arguments in support of this assertion. W e have consistently held
that we will not consider claims unsupported by cogent argument and
authority. M adrid v. State, 910 P.2d 1340, 1347 (W yo. 1996).

994 P.2d at 930-31. This discussion would have given M r. Barkell no guidance

regarding what was missing from his pleadings that would be necessary to entitle

him to an evidentiary hearing under W yoming law. Accordingly, we hold that

M r. Barkell was not at fault in failing to obtain an evidentiary hearing in state

court, and § 2254(e)(2) does not apply.

W e must now decide w hether M r. Barkell is entitled to an evidentiary

hearing under the pre-AEDPA standard, which provides that the habeas applicant

is entitled to an evidentiary hearing in federal district court “if (1) the facts were

-23-
not adequately developed in the state court, so long as that failure was not

attributable to the petitioner, . . . and (2) his allegations, if true and not

contravened by the existing factual record, would entitle him to habeas relief.”

Cannon, 383 F.3d at 1175 (internal brackets, quotation marks, and citations

omitted). W ith respect to the first requirement, we have already decided that the

lack of a state-court evidentiary hearing should not be attributed to M r. Barkell.

He proceeded in a manner that was reasonable under W yoming precedent. Hence,

M r. Barkell is entitled to an evidentiary hearing in federal district court if his

allegations, if true, would entitle him to habeas relief. See Cannon, 383 F.3d at

1175.

Before providing our view on the matter, we must first consider whether

the W yoming Supreme Court has already addressed that issue. The dissent

suggests that the W yoming court rejected M r. Barkell’s motion for remand on the

ground that an evidentiary hearing would be futile because his ineffectiveness

claim would fail even if he w ere able to prove the allegations in his motion. If

that had been the basis for the court’s rejection, AEDPA would require us to defer

to the court’s determination of the underlying federal constitutional law— namely,

the determination that M r. Barkell’s allegations did not state a claim of

ineffective assistance of counsel. See H ammon v. Ward, No. 05-6168, 2006 W L

3020639, at *7 (10th Cir. Oct. 25, 2006). That is, if the W yoming court

reasonably construed federal law to be that the allegations in M r. Barkell’s

-24-
remand motion failed to state a claim of ineffectiveness of counsel, we would

need to accept that ruling and deny M r. Barkell an evidentiary hearing in federal

court, because the hearing could not benefit him on the merits. See id.

In our view, however, that was not the basis for the W yoming Supreme

Court’s rejection of the motion to remand. First, that court’s decision does not

say that it is rejecting remand because it would be futile; it says that a hearing

cannot be justified by “mere allegations and speculation.” Barkell, 55 P.3d at

1246. The implication is that affidavits are required.

M ore importantly, the W yoming court’s discussion of the merits of

M r. Barkell’s ineffectiveness claim (based on the record, without reference to the

allegations and evidence in his motion for remand) suggests that its analysis

would need to be revised if it were to assume the truth of the allegations in the

remand motion, yet the court never hinted that it was undertaking such a revised

analysis. W hen the court rejected on the merits M r. Barkell’s claim of ineffective

assistance of counsel in trial preparation, it noted that “[h]e makes the assumption

that, because BV was in counseling, there may be evidence in the counseling

records to support his defense theory that she was either dishonest or motivated to

fabricate the allegation of sexual assault,” id. at 1243, and then went on to say

that the presumption of effective assistance had not been rebutted “[b]ecause

Barkell does not identify any specific testimony or evidence that the counsellors

would have offered,” id. These statements were made without consideration of

-25-
the materials contained in M r. Barkell’s motion for remand (including copies of

counseling records repeatedly stating that BV had lied), because the motion had

been denied. They suggest, though, that a different result— or at least further

consideration and analysis— would be required to dispose of the merits if

M r. Barkell had in fact identified “specific . . . evidence” in the counseling

records showing that BV “was . . . dishonest.” Id. Consequently, the W yoming

court could not conclude that the allegations in M r. Barkell’s motion for remand

failed to state a claim of ineffective assistance unless the court were to go beyond

its earlier analysis and determine that counseling records reporting BV’s

dishonesty would not support the ineffectiveness claim. That the Barkell opinion

contained no such analysis strongly implies that its rejection of the motion to

remand w as based on the form, rather than the substance, of the allegations in the

motion.

W e therefore conclude that the W yoming Supreme Court has not decided

whether M r. Barkell’s allegations would entitle him to relief if he proved them.

In denying M r. Barkell’s ineffectiveness claim, the W yoming court was deciding

a different issue from what is before us. Accordingly, we have no W yoming

decision to defer to when we consider the sufficiency of M r. Barkell’s allegations

of ineffective pretrial preparation. Our situation is similar to that of a federal

court considering a habeas claim after a federal-court evidentiary hearing

provides material facts not considered by the state court. See Bryan v. M ullin,

-26-
335 F.3d 1207, 1215-16 & n.7 (10th Cir. 2003) (en banc) (declining to apply

§ 2254(d)’s deferential standard of review when the state court had denied an

evidentiary hearing on ineffectiveness claims and federal district court had

conducted one); M ayes v. Gibson, 210 F.3d 1284, 1289 (10th Cir. 2000)

(review ing additional evidence proffered by habeas applicant without deference to

the state court’s factual findings when state court denied an evidentiary hearing).

C onducting our independent analysis of M r. Barkell’s allegations, we

believe that he has adequately alleged deficient pretrial investigation. “The duty

to investigate derives from counsel’s basic function . . . to make the adversarial

testing process work in the particular case.” William son v. Ward, 110 F.3d 1508,

1514 (10th Cir. 1997) (internal quotation marks omitted). “[C]ounsel has a duty

to make reasonable investigations or to make a reasonable decision that makes

particular investigations unnecessary.” Id. (internal quotation marks omitted). In

light of the prosecution’s complete reliance on the victim’s veracity and the leads

given by M r. Barkell and his sister, it would have been unreasonable for M r.

M cQ ueen not to investigate w hether records and witnesses regarding BV’s

counseling and school experiences could suggest her propensity to lie or her

motive to harm M r. Barkell. See Rom pilla v. Beard, 125 S. Ct. 2456, 2460, 2467

(2005) (it was unreasonable for counsel not to read case file he knew the

prosecution would rely on at sentencing, even though the defendant and his

family had suggested that no mitigating evidence existed). The content of the

-27-
records submitted by M r. Barkell with his motion for limited remand indicates

that the results of any such investigation would have been helpful to the defense.

W e therefore conclude that M r. Barkell is entitled to an evidentiary hearing in

federal district court, at which the court can ascertain whether M r. Barkell is able

to prove the necessary deficiencies and prejudice.

b. Failure to Consult Expert

M r. Barkell also complains about M r. M cQueen’s failure to consult with or

call at trial an expert witness on child psychiatry. He argues that this failure was

unreasonable because M r. M cQueen had the resources to call an expert witness, it

is common for the prosecution to call an expert witness in child-sex-abuse cases,

and a reasonable defense attorney would use an expert to prepare. He claims that

his defense w as prejudiced by this failure because (1) consultation with an expert

w ould have aided M r. M cQ ueen’s cross-examination of the state’s expert and BV,

and (2) a defense expert “could have explained to the jury how children’s

testimony should be evaluated, as well as shed light on problems with the

testimony of the state’s expert.” Aplt. Br. at 32.

An affidavit from M s. Lozano, the public defender originally assigned to

M r. Barkell’s case, submitted with the state-court motion for a limited remand

supports his claim that it was unreasonable for M r. M cQueen not to consult an

expert. The affidavit states, “[I]t is standard practice to enlist the use of an expert

-28-
in child sex abuse cases, whether to help prepare for cross examination or to

testify as a defense witness.” Aplt. A pp. at 138-39.

As for a showing of prejudice, although the independent-expert report

submitted by M r. Barkell with the remand motion lists 14 factors that support

BV’s credibility, it also lists five factors that question her credibility. In addition,

the report states that the “expert could have . . . informed the jury about the body

of knowledge and research on children’s false allegations of sexual abuse.” Id. at

216. On the other hand, the report also stated: “I do not disagree with anything

the state’s expert said.” Id.

This last statement convinces us that it was not ineffective assistance to fail

to call the expert as a witness. Ultimately, her testimony would simply have

corroborated that of the government’s expert, and would have had the added

prejudicial impact of emanating from the defense.

But consultation to assist in cross-examination is another matter. The

report suggests that M r. M cQueen could have scored some points on cross-

examination of the prosecution’s expert. And, more importantly, prior

consultation would likely have prevented him from asking whether children in

stepparent families are more likely to be abused than other children, a question

that elicited a damaging affirmative answer. Although we are uncertain whether

this prejudice would itself be sufficient to sustain M r. Barkell’s ineffectiveness

claim, the prejudice resulting from this lapse may well have added to any

-29-
prejudice resulting from M r. M cQueen’s failure to investigate BV’s school and

counseling experience. M r. Barkell is thus entitled to include this matter in the

evidentiary hearing in federal district court. After the hearing the court will be

equipped to decide whether the failure to consult an expert was constitutionally

ineffective in itself or in combination with the alleged failure to investigate.

III. C ON CLU SIO N

W e AFFIRM the district court’s denial of relief on M r. Barkell’s failure-to-

remand claim and on those of M r. Barkell’s ineffectiveness claims related to his

attorney’s performance at trial. W e REVERSE the denial of M r. Barkell’s other

ineffectiveness claims, and REM AND to the district court to hold an evidentiary

hearing.

-30-
O5-8045, Barkell v. Crouse
O’BRIEN, J., concurring in part and dissenting in part

I am pleased to join the majority opinion except for Part 2 - Alleged

Pretrial Errors. From that discussion and holding, I respectfully dissent.

The masterful style of the majority opinion obscures what, for me, is the

core issue relating to the claimed pretrial errors, AEDPA deference.

There is no doubt Congress intended AEDPA to advance these
doctrines [comity, finality and federalism]. Federal habeas corpus
principles must inform and shape the historic and still vital relation of
mutual respect and common purpose existing between the States and
the federal courts. In keeping this delicate balance we have been
careful to limit the scope of federal intrusion into state criminal
adjudications and to safeguard the States' interest in the integrity of
their criminal and collateral proceedings. See, e.g., Coleman v.
Thom pson, 501 U.S. 722, 726, 111 S.Ct. 2546, 115 L.Ed.2d 640
(1991) (“This is a case about federalism. It concerns the respect that
federal courts owe the States and the States’ procedural rules when
reviewing the claims of state prisoners in federal habeas corpus”);
M cCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d
517 (1991) (“[T]he doctrines of procedural default and abuse of the
writ are both designed to lessen the injury to a State that results
through reexamination of a state conviction on a ground that the State
did not have the opportunity to address at a prior, appropriate time;
and both doctrines seek to vindicate the State's interest in the finality
of its criminal judgments”).

Williams v. Taylor, 529 U.S. 420, 436 (2000) (emphasis added).

The W yoming Supreme Court twice addressed Barkell’s claims of

ineffective assistance of trial counsel and his request for a hearing on that issue. It

considered and denied his request for an evidentiary hearing in an unpublished

order. Later it revisited the issue (as well as his other arguments) in a formal
opinion. Barkell v. State, 55 P.3d 1239 (W yo. 2002). It concluded his request for

a hearing was not adequately supported, saying:

In his second issue, Barkell claims that he was entitled to remand for
an evidentiary hearing on his claims of ineffective assistance of
counsel, citing Calene v. State, 846 P.2d 679 (W yo.1993). The
present case, however, is more similar to Griswold v. State, 994 P.2d
920, 930-31 (W yo.1999). Appellant cannot rely on mere allegations
and speculation for the purpose of obtaining a remand to develop a
record on his claims of ineffective assistance. W e previously denied
Barkell's M otion for a Partial Remand and, in his appellate brief, he
provides no additional facts or argument justifying a remand. Id.

Id. at 1245-46.

The W yoming Supreme Court’s opinion is crystal clear. In A EDPA’s

words, Barkell failed to “develop the factual basis for his claim.” 1 That is a merits

decision entitled to AEDPA deference. 2 But instead of deferring to the W yoming

Supreme Court the majority shifts focus saying, “Thus, the threshold issue is

whether M r. Barkell exercised sufficient diligence in state court to avoid the

strictures of § 2254(e)(2).” 3 (M ajority Op. at 18.) Since he “identified such

1
“If the applicant has failed to develop the factual basis of a claim in State
court proceedings, the [federal district] court shall not hold an evidentiary
hearing on the claim, unless . . . .” 28 U.S.C. § 2254(e)(2) (emphasis added).
2
28 U.S.C. § 2254(d)
3
If the applicant has failed to develop the factual basis of a claim in State
court proceedings, the court shall not hold an evidentiary hearing on the claim
unless the applicant shows that—
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously
(continued...)

-2-
 4
evidence for us” (M ajority Op. at 16) he thereby qualifies for a hearing. But

Barkell has identified no evidence for us that he had not already identified for the

W yoming Supreme Court. 5 The majority simply substitutes its view of sufficiency

for that of the W yoming Supreme Court. Conveniently that obviates any need to

demonstrate how the W yoming decision is contrary to or an unreasonable

3
(...continued)
unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by
clear and convincing evidence that but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.

28 U.S.C. § 2254(e)(2).
4
The evidence Barkell has “identified for us” is the very same evidence the
W yoming Supreme Court held to be insufficient.
5
In that regard this case is distinctly different from Williams. In W illiam s
no state court had ruled upon the adequacy of a request for an evidentiary hearing
because the underlying issue was first raised in federal court where W illiams
claimed the Commonwealth of Virginia failed to disclose a plea agreement with a
co-defendant offered in exchange for incriminating testimony against him.
W illiam s, 529 U.S. at 427. There was no occasion to consider whether deference
was due to a state determination about the adequacy of his application since no
application was made to a state court. The issue is squarely presented here, where
the W yoming Supreme Court considered and decided the issue.
The ultimate question is whether this Court is enforcing federally derived
rights or merely usurping state prerogatives. If this state decision is to be
overturned, the panel should clearly explain how the W yoming Supreme Court’s
decision is contrary to or an unreasonable application of federal law as
determined by the United States Supreme Court.

-3-
application of United States Supreme Court precedent. Indeed, no attempt is made

to do so.

I think the majority has miscast the issue. It confesses the obvious — the

W yoming Supreme Court is the final arbiter of W yoming law and procedure —

and it acknowledges that under W yoming law Barkell’s petition was insufficient

“because the W yoming Supreme Court said so.” (M ajority Op. at 21.) But then,

citing W illiam s, it says the issue here is not the sufficiency of the application, but

diligence in presenting it. It errs because in this case the issue of diligence is

subsumed in the sufficiency inquiry. 6 Diligence requires all available evidence be

discovered, marshaled and presented to the state tribunal. Id at 437. Barkell

presented to the W yoming Supreme Court such evidence as he thought sufficient

in support of his petition and he offered no new evidence to the district court. H e

does not claim the prosecution “hid the ball” or some other happenstance 7

prevented him from finding and presenting relevant material. But the majority

puts a new twist on the diligence test.

6
“Yet comity is not served by saying a prisoner ‘has failed to develop the
factual basis of a claim’ where he w as unable to develop his claim in state court
despite diligent effort.” Williams, 529 U.S. at 437 (emphasis added).
7
“To say a person has failed in a duty implies he did not take the necessary
steps to fulfill it. He is, as a consequence, at fault and bears responsibility for the
failure. In this sense, a person is not at fault when his diligent efforts to perform
an act are thwarted, for example, by the conduct of another or by happenstance.”
W illiam s, 529 U.S. at 432.

-4-
 It says Barkell exercised diligence in presenting his hearing request because

he followed established procedures (the Calene decision 8 ) when he requested an

evidentiary hearing. But the W yoming Supreme Court, relying on one of its

subsequent cases, held otherwise. Under W yoming case law Barkell’s petition was

insufficient because he failed to make the substantial factual showing required to

obtain such a hearing. 9

The majority clearly thinks he made an adequate showing, but rather than

face the issue head-on (with the attendant requirement of demonstrating the

W yoming decision was contrary to or an unreasonable application of United

States Supreme Court precedent) it disguises a substantive disagreement as a

diligence inquiry. 10 It is fair, then, to ask how diligence should be measured in

8
Calene v State, 846 P2d 679 (W yo. 1993).
9
The W yoming Supreme Court specifically refused to apply Calene to
Barkell’s claim, holding that the issue of sufficiency was controlled by its later
decision in Griswold v. State, 994 P.2d 920 (W yo. 1999). Barkell, 55 P.3d at
1245.
10
For state courts to have their rightful opportunity to
adjudicate federal rights, the prisoner must be diligent in
developing the record and presenting, if possible, all
claims of constitutional error. If the prisoner fails to do
so, himself or herself contributing to the absence of a
full and fair adjudication in state court. §2254(e)(2)
prohibits an evidentiary hearing to develop the relevant
claims in federal court, unless the statute’s other
stringent requirements [cause and prejudice] are met.

W illiams, 529 U.S. at 437.

-5-
this case. Barkell presented his supporting evidence (he has offered nothing new ),

so the question is procedural compliance. W hile conceding that “[n]ot complying

with established requirements w ould ordinarily constitute the fault necessary to

impose the strict limitations of § 2254(e)(2) on the opportunity for a federal

evidentiary hearing,” the majority concludes, “[i]n our view , M r. Barkell’s efforts

complied with a reasonable (although apparently incorrect) interpretation of the

mandates of W yoming law as it stood before his appeal.” (M ajority Op. at 20-21.)

In other words, the majority is free to decide, in spite of the W yoming Supreme

Court, what kind of showing W yoming procedure required for an evidentiary

hearing at the time Barkell made his request. I do not see how that is consonant

with W illiam s, 529 U.S. 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.” (emphasis added)).

Contrary to the majority’s suggestion, no procedural bar prevented or

discouraged Barkell from making a sufficient showing. He was free to present

whatever he thought appropriate. The question is not whether he was diligent in

identifying and presenting facts justifying an evidentiary hearing, but whether his

efforts were adequate. The W yoming Supreme Court said “no,” the majority says

“yes.” Assuming the majority is correct and the W yoming Supreme Court erred,

AEDPA deference is still required. The state decision must be unreasonable, not

merely incorrect. William s, 529 U.S. at 411 (“[A] federal habeas court may not

-6-
issue the writ simply because that court concludes in its independent judgment that

the relevant state-court decision applied clearly established federal law

erroneously or incorrectly. Rather, that application must also be unreasonable.”). 11

I am not prepared to say the W yoming Supreme Court was wrong, let alone

unreasonable.

The majority says Barkell’s efforts, while unsuccessful, were reasonable

under existing standards. It thus implies that the W yoming Supreme Court

changed the sufficient showing rules in this case and without adequate notice.

Specifically it says the Calene court relied upon an unsworn letter to justify a

remand for an evidentiary hearing but Barkell was denied a hearing because his

factual recitals were not sworn. The majority assumes that was the basis for

denying a hearing to Barkell (the W yoming Supreme Court said no such thing).

But crediting the majority’s assumption does not change the result. In Calene the

correct procedure for presenting ineffective assistance of counsel claims was

definitively explained for the first time. In that watershed decision the W yoming

Supreme Court ordered a remand for an evidentiary hearing based upon Calene’s

unsworn letter. But it also laid out for future cases the threshold requirement for

obtaining such a hearing saying, “a motion for remand should be made and

11
Barkell was represented by appellate counsel (who was not his trial
attorney). If a more robust showing was required (as the W yoming Supreme
Court held) his appellate counsel may have been inadequate. As I explain later,
that can be explored in state post conviction proceedings, which have not been
exhausted.

-7-
appropriately supported by contentions defining and supporting any

ineffectiveness claim in detail and supported, as may be appropriate, by affidavit

sufficient to establish substantially [sic].” Calene, 846 P.2d at 692. The Griswold

case, which the W yoming Supreme Court cited in denying Barkell’s request for a

remand, is no more or less demanding. In Griswold the court said:

W e denied his M otion for Partial Remand, finding that Grisw old
failed to provide a substantial factual basis for his claim. M oreover,
in his appellate brief, Grisw old provides no facts or arguments in
support of this assertion. W e have consistently held that we will not
consider claims unsupported by cogent argument or pertinent
authority. M adrid v. State, 910 P.2d 1340, 1347 (W yo.1996).

Griswold, 994 P.2d at 930-31.

The W yoming Supreme Court has not changed the rules, let alone done so

without notice. It gave Calene a break (ostensibly because he was a pioneer on the

issue) but, in doing so, it also announced a demanding rule for future cases

(detailed motion supported, as appropriate, by affidavit). Subsequent W yoming

decisions do not suggest the affidavit rule has been ignored or relaxed.

In his quest for a hearing on his claim of ineffectiveness of trial counsel

Barkell enjoyed the services of appellate counsel who was not involved in his trial.

Barkell’s appellate counsel is experienced and well aware of the showing required

for a remand to the state district court for an evidentiary hearing on trial counsel

ineffectiveness. The majority correctly observes that W yoming requires

ineffectiveness of trial counsel to be raised on direct appeal. (M ajority Op. at 18-

-8-
19.) But that rule does not apply to ineffective appellate counsel. If appellate

counsel was ineffective Barkell has another remedy. He can petition for post

conviction relief in the state district court. The relevant statute provides:

(a) A claim under this act is procedurally barred and no court has
jurisdiction to decide the claim if the claim:
(I) Could have been raised but was not raised in a direct appeal
from the proceeding which resulted in the petitioner's
conviction;

(ii) W as not raised in the original or an amendment to the
original petition under this act; or

(iii) W as decided on its merits or on procedural grounds in any
previous proceeding which has become final.

(b) Notwithstanding paragraph (a)(I) of this section, a court may hear
a petition if:

(I) The petitioner sets forth facts supported by affidavits or
other credible evidence which was not known or reasonably
available to him at the time of a direct appeal; or

(ii) The court makes a finding that the petitioner was
denied constitutionally effective assistance of counsel on
his direct appeal. This finding may be reviewed by the
supreme court together with any further action of the
district court taken on the petition.

(c) This act does not apply to claims of error or denial of rights in any
proceeding:

(I) For the revocation of probation or parole;

(ii) Provided by statute or court rule for new trial, sentence
reduction, sentence correction or other post-verdict motion.

-9-
 (d) No petition under this act shall be allowed if filed more than five
(5) years after the judgment of conviction was entered.

W yo. Stat. § 7-14-103 (1977) (emphasis added.)

Barkell has not exhausted his potential claim of ineffective assistance of appellate

counsel.

AEDPA requires deference to the W yoming Supreme Court in this case. Its

decision was not contrary to or an unreasonable application of federal law as

determined by the United States Supreme Court. W e should affirm the district

court in all respects.

-10-