Appellate Case: 24-8008 Document: 83-1 Date Filed: 12/12/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 12, 2024 _________________________________ Christopher M. Wolpert Clerk of Court TIMOTHY D. LENERS,
Petitioner - Appellant,
v. No. 24-8008 (D.C. No. 1:23-CV-00121-SWS) WYOMING ATTORNEY GENERAL; (D. Wyo.) STATE OF WYOMING; WYOMING STATE PENITENTIARY WARDEN,*
Respondents - Appellees. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY** _________________________________
Before HARTZ, KELLY, and EID, Circuit Judges. _________________________________
Timothy D. Leners, a Wyoming state prisoner proceeding pro se, seeks a
certificate of appealability (COA) to appeal the district court’s denial of his 28 U.S.C.
§ 2254 habeas application. We deny his request for a COA and dismiss the matter.
* The Wyoming State Penitentiary Warden is substituted as a Respondent due to Mr. Leners’ transfer from the Wyoming Medium Correctional Institution to the Wyoming State Penitentiary. ** This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 24-8008 Document: 83-1 Date Filed: 12/12/2024 Page: 2
I. Background
For eight months in 2017, Mr. Leners lived with Joyce Trout and her daughter in
Nebraska. When Mrs. Trout ended her relationship with Mr. Leners in early December,
she and her daughter returned to live with her husband, Chris Trout, in an apartment in
Cheyenne, Wyoming. Mr. Leners remained in Nebraska with his wife and four children.
But on December 23, upon Mrs. Trout’s invitation, Mr. Leners packed his belongings and
drove to her apartment in Cheyenne. Mr. Leners
planned to oust Mr. Trout from the apartment, move in, and begin life anew with Mrs. Trout. The reunion did not go as planned. By the end of the day, Mr. Leners had shot Mr. Trout in the center of his chest. Mr. Leners, charged with attempted second-degree murder, claimed he shot in self-defense. Leners v. State, 486 P.3d 1013, 1015 & n.2 (Wyo. 2021).
At trial, the jury heard Mr. Leners’ and Mr. Trout’s conflicting versions of the
circumstances of the shooting through videos of Mr. Leners’ police interviews and
Mr. Trout’s trial testimony. In addition to physical evidence from the scene of the
shooting, the trial evidence included an audio recording from Mr. Leners’ cell phone of
his interactions with the Trouts beginning shortly after he arrived at the apartment in
Cheyenne and continuing through the shooting. The jury found Mr. Leners guilty of
attempted second-degree murder, rejecting his self-defense claim.
After the trial court denied Mr. Leners’ motion for a new trial, the Wyoming
Supreme Court (WSC) affirmed his conviction, holding that “[t]he evidence at trial
devastated Mr. Leners’ justification of self-defense.” Id. at 1020. The WSC concluded
the audio recording of the shooting “tracks Mr. Trout’s testimony but does not comport
2 Appellate Case: 24-8008 Document: 83-1 Date Filed: 12/12/2024 Page: 3
with any of Mr. Leners’ differing accounts of what occurred.” Id. at 1019-20. It held
Mr. Trout’s testimony was also corroborated by the lack of “physical signs that an
altercation occurred,” the “pool of blood in the snow,” and “an impact mark from a bullet
in the location where Mr. Trout said he fell and lay on his back.” Id. at 1020 (internal
quotation marks omitted).
After the WSC also affirmed the trial court’s denial of Mr. Leners’ motion for a
sentence reduction, he filed a pro se petition for post-conviction relief asserting eight
claims of ineffective assistance of counsel. The trial court held all claims were
procedurally barred, and the WSC denied review.
Mr. Leners filed a pro se § 2254 petition raising his post-conviction claims plus
one additional claim. The district court granted the Respondents’ motion to dismiss or
for summary judgment, holding that (1) Mr. Leners did not satisfy § 2254(d) as to claims
the state court decided on the merits, (2) portions of his claims were not cognizable in
habeas, and (3) he failed to overcome the state-court procedural default of his claims by
showing cause and prejudice or a fundamental miscarriage of justice.
II. Discussion
Where the district court denied Mr. Leners’ claims on the merits, to obtain a COA
he “must demonstrate that reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). As to claims denied on procedural grounds, he must show “that jurists of reason
would find it debatable” “whether the district court was correct in its procedural ruling”
and “whether the petition states a valid claim of the denial of a constitutional right.” Id.
3 Appellate Case: 24-8008 Document: 83-1 Date Filed: 12/12/2024 Page: 4
Although we liberally construe Mr. Leners’ pro se COA Application, we do not act as his
advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
A. Claims Decided on the Merits in State Court
Among other contentions, Claim Five asserted ineffective assistance of counsel
related to the admission of evidence and prosecutorial misconduct. Claim Six alleged the
trial court was biased in denying Mr. Leners’ new-trial motion. Concluding the WSC
adjudicated these claims on the merits, the district court held he did not demonstrate that
either adjudication “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.” § 2254(d)(1).
We deny a COA because Mr. Leners fails to show that reasonable jurists would
debate the district court’s assessment of these claims. First, he misunderstands the
meaning of “adjudicated on the merits” in § 2254(d), and he ignores the WSC’s rejection
of his bias claim in affirming the denial of his sentence-reduction motion. Moreover,
Mr. Leners cannot rely on evidence that was not before the state court to show error in
the WSC’s no-prejudice holding. See Grant v. Royal, 886 F.3d 874, 929 (10th Cir.
2018). He also cites no holding by the Supreme Court that the WSC either contradicted
or unreasonably applied in adjudicating these claims, as required by § 2254(d)(1). And to
the extent he challenges state-court factual determinations, he fails to demonstrate “an
unreasonable determination” under § 2254(d)(2), and he does not overcome the
presumption of correctness in § 2254(e)(1) with clear and convincing evidence.
4 Appellate Case: 24-8008 Document: 83-1 Date Filed: 12/12/2024 Page: 5
B. Claim Not Cognizable in Habeas
Citing Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998), the district court
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Appellate Case: 24-8008 Document: 83-1 Date Filed: 12/12/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 12, 2024 _________________________________ Christopher M. Wolpert Clerk of Court TIMOTHY D. LENERS,
Petitioner - Appellant,
v. No. 24-8008 (D.C. No. 1:23-CV-00121-SWS) WYOMING ATTORNEY GENERAL; (D. Wyo.) STATE OF WYOMING; WYOMING STATE PENITENTIARY WARDEN,*
Respondents - Appellees. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY** _________________________________
Before HARTZ, KELLY, and EID, Circuit Judges. _________________________________
Timothy D. Leners, a Wyoming state prisoner proceeding pro se, seeks a
certificate of appealability (COA) to appeal the district court’s denial of his 28 U.S.C.
§ 2254 habeas application. We deny his request for a COA and dismiss the matter.
* The Wyoming State Penitentiary Warden is substituted as a Respondent due to Mr. Leners’ transfer from the Wyoming Medium Correctional Institution to the Wyoming State Penitentiary. ** 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. Appellate Case: 24-8008 Document: 83-1 Date Filed: 12/12/2024 Page: 2
I. Background
For eight months in 2017, Mr. Leners lived with Joyce Trout and her daughter in
Nebraska. When Mrs. Trout ended her relationship with Mr. Leners in early December,
she and her daughter returned to live with her husband, Chris Trout, in an apartment in
Cheyenne, Wyoming. Mr. Leners remained in Nebraska with his wife and four children.
But on December 23, upon Mrs. Trout’s invitation, Mr. Leners packed his belongings and
drove to her apartment in Cheyenne. Mr. Leners
planned to oust Mr. Trout from the apartment, move in, and begin life anew with Mrs. Trout. The reunion did not go as planned. By the end of the day, Mr. Leners had shot Mr. Trout in the center of his chest. Mr. Leners, charged with attempted second-degree murder, claimed he shot in self-defense. Leners v. State, 486 P.3d 1013, 1015 & n.2 (Wyo. 2021).
At trial, the jury heard Mr. Leners’ and Mr. Trout’s conflicting versions of the
circumstances of the shooting through videos of Mr. Leners’ police interviews and
Mr. Trout’s trial testimony. In addition to physical evidence from the scene of the
shooting, the trial evidence included an audio recording from Mr. Leners’ cell phone of
his interactions with the Trouts beginning shortly after he arrived at the apartment in
Cheyenne and continuing through the shooting. The jury found Mr. Leners guilty of
attempted second-degree murder, rejecting his self-defense claim.
After the trial court denied Mr. Leners’ motion for a new trial, the Wyoming
Supreme Court (WSC) affirmed his conviction, holding that “[t]he evidence at trial
devastated Mr. Leners’ justification of self-defense.” Id. at 1020. The WSC concluded
the audio recording of the shooting “tracks Mr. Trout’s testimony but does not comport
2 Appellate Case: 24-8008 Document: 83-1 Date Filed: 12/12/2024 Page: 3
with any of Mr. Leners’ differing accounts of what occurred.” Id. at 1019-20. It held
Mr. Trout’s testimony was also corroborated by the lack of “physical signs that an
altercation occurred,” the “pool of blood in the snow,” and “an impact mark from a bullet
in the location where Mr. Trout said he fell and lay on his back.” Id. at 1020 (internal
quotation marks omitted).
After the WSC also affirmed the trial court’s denial of Mr. Leners’ motion for a
sentence reduction, he filed a pro se petition for post-conviction relief asserting eight
claims of ineffective assistance of counsel. The trial court held all claims were
procedurally barred, and the WSC denied review.
Mr. Leners filed a pro se § 2254 petition raising his post-conviction claims plus
one additional claim. The district court granted the Respondents’ motion to dismiss or
for summary judgment, holding that (1) Mr. Leners did not satisfy § 2254(d) as to claims
the state court decided on the merits, (2) portions of his claims were not cognizable in
habeas, and (3) he failed to overcome the state-court procedural default of his claims by
showing cause and prejudice or a fundamental miscarriage of justice.
II. Discussion
Where the district court denied Mr. Leners’ claims on the merits, to obtain a COA
he “must demonstrate that reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). As to claims denied on procedural grounds, he must show “that jurists of reason
would find it debatable” “whether the district court was correct in its procedural ruling”
and “whether the petition states a valid claim of the denial of a constitutional right.” Id.
3 Appellate Case: 24-8008 Document: 83-1 Date Filed: 12/12/2024 Page: 4
Although we liberally construe Mr. Leners’ pro se COA Application, we do not act as his
advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
A. Claims Decided on the Merits in State Court
Among other contentions, Claim Five asserted ineffective assistance of counsel
related to the admission of evidence and prosecutorial misconduct. Claim Six alleged the
trial court was biased in denying Mr. Leners’ new-trial motion. Concluding the WSC
adjudicated these claims on the merits, the district court held he did not demonstrate that
either adjudication “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.” § 2254(d)(1).
We deny a COA because Mr. Leners fails to show that reasonable jurists would
debate the district court’s assessment of these claims. First, he misunderstands the
meaning of “adjudicated on the merits” in § 2254(d), and he ignores the WSC’s rejection
of his bias claim in affirming the denial of his sentence-reduction motion. Moreover,
Mr. Leners cannot rely on evidence that was not before the state court to show error in
the WSC’s no-prejudice holding. See Grant v. Royal, 886 F.3d 874, 929 (10th Cir.
2018). He also cites no holding by the Supreme Court that the WSC either contradicted
or unreasonably applied in adjudicating these claims, as required by § 2254(d)(1). And to
the extent he challenges state-court factual determinations, he fails to demonstrate “an
unreasonable determination” under § 2254(d)(2), and he does not overcome the
presumption of correctness in § 2254(e)(1) with clear and convincing evidence.
4 Appellate Case: 24-8008 Document: 83-1 Date Filed: 12/12/2024 Page: 5
B. Claim Not Cognizable in Habeas
Citing Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998), the district court
held that Claim Nine, asserting trial-court bias in the state post-conviction proceedings,
was not cognizable in habeas. We deny a COA because this ruling is not reasonably
debatable. Contrary to Mr. Leners’ assertion, § 2254(b)(1)(B) does not define the scope
of habeas review. It provides exceptions to the exhaustion requirement in
§ 2254(b)(1)(A).
C. Insufficiently Briefed Claims
Claims Two, Four, and Five alleged ineffective assistance of counsel related to
(1) Mr. Leners’ theory that the Trouts lured him to Wyoming to rob and kill him,
(2) insufficient and unconstitutional jury instructions, and (3) violations of Brady v.
Maryland, 373 U.S. 83 (1963), involving gunshot residue lab reports and evidence from
his cell phone. Claim Seven challenged his exclusion from attending the oral argument
on his direct appeal. Rather than addressing the district court’s reasoning in ruling on
these claims, Mr. Leners simply repeats his previous contentions of error. We deny a
COA because he cannot show the rulings are reasonably debatable when he fails “to
explain what was wrong with the reasoning that the district court relied on in reaching its
decision.” Nixon v. City & Cnty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015).
D. Procedurally Defaulted Claims
Claims One, Three, and Five alleged ineffective assistance of counsel related to
(1) false statements in the affidavit of probable cause, (2) denial of Mr. Leners’ rights to
bear arms and to self-defense, (3) prosecutorial misconduct, and (4) Brady violations
5 Appellate Case: 24-8008 Document: 83-1 Date Filed: 12/12/2024 Page: 6
involving photographs of powder burns and the Trouts’ criminal records. Claim Eight
asserted appellate counsel was ineffective in failing to argue that trial counsel was
ineffective. The trial court concluded these claims were procedurally barred, and the
WSC denied review. The district court held Mr. Leners failed to overcome his
procedural default by showing cause and prejudice or a miscarriage of justice.
We deny a COA because Mr. Leners does not show that the district court’s rulings
on these claims are reasonably debatable. First, there is no debate that these claims were
procedurally defaulted in state court. Mr. Leners’ contention regarding § 2254(b)
confuses exhaustion with procedural default. And although he points to his unsuccessful
motion to file a pro se appeal brief raising these claims, we are bound by the state courts’
interpretation of state procedural requirements. See Bradshaw v. Richey, 546 U.S. 74, 76
(2005). Next, Mr. Leners cannot obtain a COA on his contention that the state procedural
ground was not independent when he failed to make that argument in the district court.
See United States v. Viera, 674 F.3d 1214, 1220 (10th Cir. 2012). Finally, as to his
failure to overcome the procedural default, Mr. Leners offers no clear and convincing
evidence rebutting the presumption that the WSC’s factual determinations based on the
trial record are correct. And reasonable jurists would not debate the district court’s
holding that he failed to demonstrate cause based on ineffective assistance of appellate
counsel or a fundamental miscarriage of justice based on factual innocence.
E. Pending Motions
We deny Mr. Leners’ seven pending motions. Regarding the contents of the
record on appeal and Mr. Leners’ COA Application: (1) the court has advised him that
6 Appellate Case: 24-8008 Document: 83-1 Date Filed: 12/12/2024 Page: 7
our review is limited to the record that was before the district court; (2) the word limit for
opening briefs applies to all parties, and the court permitted him to exceed that limit by
1,000 words; and (3) the court followed its local rules in receiving but not filing his other
submissions. Mr. Leners’ motions regarding current prison conditions are unrelated to
our consideration of his COA Application. And although we do not condone prison
officials’ violation of Federal Rule of Appellate Procedure 23(a), Mr. Leners fails to
show his transfer to a different facility prejudiced his ability to seek a COA. See
Hammer v. Meachum, 691 F.2d 958, 961 (10th Cir. 1982).
III. Conclusion
We deny a COA and dismiss this matter.
Entered for the Court
Paul J. Kelly, Jr. Circuit Judge