Moser v. Wyoming Attorney General

• Court: Court of Appeals for the Tenth Circuit
• Decided: September 6, 2022
• Docket: 21-8094
• Status: Unpublished

Opinion

Appellate Case: 21-8094 Document: 010110734010 Date Filed: 09/06/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT September 6, 2022 _________________________________ Christopher M. Wolpert Clerk of Court JONATHON KENT MOSER,

Petitioner - Appellant,

v. No. 21-8094 (D.C. No. 2:19-CV-00187-ABJ) WYOMING ATTORNEY GENERAL, (D. Wyo.)

Respondent - Appellee. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before HARTZ, HOLMES, and McHUGH, Circuit Judges. _________________________________

Jonathon Kent Moser, a Wyoming state prisoner proceeding pro se, seeks a

certificate of appealability (COA) to challenge the district court’s dismissal of his

application for relief under 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (requiring a

COA to appeal “the final order in a habeas corpus proceeding in which the detention

complained of arises out of process issued by a State court”). We deny Mr. Moser’s

request for a COA and dismiss this matter.

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 21-8094 Document: 010110734010 Date Filed: 09/06/2022 Page: 2

I. BACKGROUND

A. State court proceedings

A jury convicted Mr. Moser in Carbon County, Wyoming, on one count of sexual

assault of a minor in the first degree and three counts of sexual assault of a minor in the

second degree. The counts arose from Mr. Moser’s conduct with two female students at

the Rawlins Middle School, where he worked. One of the victims, A.C., testified that

Mr. Moser rubbed her leg and touched her hands on one occasion and had intercourse

with her on another occasion. The other victim, M.G., testified that Mr. Moser touched

her breasts and vagina over her clothing. Under Wyoming Rule of Evidence 404(b),1 the

trial court allowed testimony by four female witnesses (the Middle School witnesses),

who described being touched by Mr. Moser on their buttocks and upper thighs while

attending Rawlins Middle School, and by three other female witnesses (the Converse

County witnesses), who described being sexually assaulted by him when they were

students at a high school in Converse County, where he worked after Rawlins Middle

School.

1 Wyoming Rule of Evidence 404(b) provides:

Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

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The Wyoming Supreme Court affirmed. See Moser v. State, 409 P.3d 1236,

1243–51 (Wyo. 2018). Mr. Moser filed a petition for postconviction relief raising three

claims of ineffective assistance of appellate counsel. The postconviction court dismissed

the petition, concluding that the claims were procedurally barred. The Wyoming

Supreme Court summarily denied Mr. Moser’s Petition for Writ of Review.

B. Federal district-court proceedings

In his § 2254 application Mr. Moser advanced three grounds for relief. The first

and third grounds asserted ineffective assistance of appellate counsel for failing to

challenge the admission of the Converse County witnesses’ testimony and a limitation on

the cross-examination of A.C. In ground two Mr. Moser argued that the cumulative

nature of the Rule 404(b) witnesses’ testimony violated his Fourteenth Amendment

due-process rights.

The State filed a motion to dismiss the petition. The district court granted the

State’s motion, dismissed the petition with prejudice, and denied a COA. The court ruled

that grounds one and three were procedurally barred in federal court based on the

postconviction court’s finding that the corresponding claims were procedurally defaulted

in state court, and that Mr. Moser had not shown his appellate counsel had been

constitutionally ineffective regarding those claims so he could not demonstrate cause and

prejudice to overcome the bar. As for ground two’s due-process claim, the court held

that it amounted to a state-law Rule 404(b) claim not cognizable in habeas.

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II. COA STANDARD

We will issue a COA “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires the

applicant to 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). For claims the district court denied on a procedural ground

without reaching the merits, the applicant must also show that the district court’s

procedural ruling is debatable. Id.

III. ANALYSIS

A. Grounds one and three

Mr. Moser does not take issue with the district court’s application of procedural

bar to grounds one and three. Instead, he argues the merits of those grounds. But we do

not address the merits of a claim that was defaulted in state court on an independent and

adequate state procedural ground unless the petitioner can show cause and prejudice for

the default or that a fundamental miscarriage of justice will result from a failure to

consider the claim. See Thacker v. Workman, 678 F.3d 820, 835 (10th Cir. 2012). We

construe his arguments concerning appellate counsel’s ineffectiveness as a challenge to

the district court’s determination that he failed to demonstrate cause and prejudice to

overcome the procedural bar because “an attorney’s error can constitute cause to excuse a

procedural default if it satisfies both prongs of the test for [ineffective assistance of

counsel],” Davis v. Sharp, 943 F.3d 1290, 1298 (10th Cir. 2019). The two prongs are

(1) deficient performance, which occurs when “counsel’s representation fell below an

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objective standard of reasonableness,” and (2) resulting prejudice, which exists if “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, 688,

694 (1984).

1. Ground one

On ground one the district court determined that Mr. Moser had not shown that

appellate counsel would have been able to persuade the Wyoming Supreme Court that the

trial court abused its discretion in allowing the Rule 404(b) testimony of the three

Converse County witnesses. Mr. Moser has not shown that reasonable jurists would

debate the district court’s resolution of this issue. He points to the Wyoming Supreme

Court’s comment that “the prejudicial effect of [the four Middle School witnesses’]

testimony challenged on appeal was likely negligible” but, “[i]n terms of prejudice,” the

conduct testified to by the three Converse County witnesses “was much more

reprehensible than the uncharged misconduct testimony of [the four Middle School

witnesses].” Moser, 409 P.3d at 1248 n.5. But the relative reprehensibility of the two

sets of testimony is not dispositive. In concluding that admission of the Middle School

witnesses’ testimony was not unfairly prejudicial, the Wyoming Supreme Court focused

on the trial court’s observation that the conduct to which those “witnesses testified was

not more serious or reprehensible than the charged conduct.” Id. at 1248 (emphasis

added). Similarly, the conduct described in the testimony by the Converse County

witnesses was not more serious or reprehensible than the conduct Mr. Moser was charged

with, which included intercourse with A.C. and touching M.G.’s breast. In light of the

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thorough, well-reasoned opinion of the Wyoming Supreme Court explaining why the

state trial court had not abused its discretion in admitting the testimony by the Middle

School witnesses, we do not think that reasonable jurists could debate whether the

Wyoming Supreme Court would have determined that the trial court abused its discretion

by admitting the Converse County witnesses’ testimony. We therefore deny a COA on

ground one.2

2. Ground three

Ground three concerned defense counsel’s request to cross-examine A.C. about

her testimony that Mr. Moser had intercourse with her and that she waited a year before

reporting it because she was afraid. Defense counsel sought to impeach her by eliciting

testimony about her prompt reporting of a sexual assault in an unrelated case to show she

was not afraid of law enforcement. The trial court’s sole restriction on cross-examination

was that defense counsel could not elicit that A.C. had been the victim of a prior sexual

assault.

In denying relief the federal district court explained that the only “fact omitted

from the cross-examination was A.C.’s status as a prior sexual assault victim” and

defense counsel was able to elicit “substantially the same testimony on cross-examination

2 Mr. Moser also argues that because he was acquitted of the conduct about which the Converse County witnesses testified, their testimony could not provide “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,” Wyo. R. Evid. 404(b). But Mr. Moser acknowledges that he was acquitted on those charges more than a year after the Carbon County trial concluded. Hence, the acquittal has no bearing on the admissibility of the testimony at the time of the Carbon County trial. 6 Appellate Case: 21-8094 Document: 010110734010 Date Filed: 09/06/2022 Page: 7

that Mr. Moser claims was necessary to impeach the witness,” namely, that A.C. “ had

talked to law enforcement in the past, she was not afraid of law enforcement, she knew

law enforcement would protect her, and she knew Mr. Moser would likely be arrested if

she reported a sexual assault.” R., Vol. I at 57. Because the claim lacked merit, the court

concluded that Mr. Moser could not show ineffective assistance of appellate counsel and

therefore could not establish cause and prejudice to overcome the procedural bar.

Mr. Moser has not shown that reasonable jurists could debate the correctness of

the district court’s conclusion that the prohibition on referring to A.C.’s “status as a

victim” in the other case, R., Vol. II at 466:4, did not prevent Mr. Moser from presenting

a complete defense, particularly in light of A.C.’s repeated insistence that she delayed

reporting because she was afraid of Mr. Moser, not law enforcement, and her testimony

that her continued delay in reporting after Mr. Moser left the middle school was because

she was “afraid of what everyone would think of me if I did [report],” id. at 548:25 to

549:1. We deny a COA on ground three.

B. Ground two

In denying relief on the due-process claim, the district court rejected Mr. Moser’s

argument that the trial court placed no restrictions on the jury’s consideration of the

Rule 404(b) witnesses’ testimony, pointing out that the trial court gave a detailed limiting

instruction before each such witness. The instruction stated that the jury could not

consider the evidence to suggest Mr. Moser had a propensity or was predisposed to

commit the crimes he was charged with or as evidence of his guilt for those charged

crimes. The district court concluded that because the record did not support Mr. Moser’s

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constitutional claim, the claim was merely a complaint that the trial court wrongly

decided an issue of state evidence law that was not cognizable in habeas.

In his COA application Mr. Moser argues that he was prejudiced by the admission

of testimony by one of the Converse County witnesses because it exceeded the scope of

the Rule 404(b) notice. But this argument is not preserved because he did not raise it in

his § 2254 application. See Heard v. Addison, 728 F.3d 1170, 1175 (10th Cir. 2013).

Accordingly, we limit our COA consideration to his argument that the admission of the

Rule 404(b) witnesses’ testimony violated due process. He can establish a violation of

due process only if the alleged error caused his trial to be fundamentally unfair. See

Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir. 2002) (“We may not provide habeas

corpus relief on the basis of state court evidentiary rulings unless they rendered the trial

so fundamentally unfair that a denial of constitutional rights results.” (internal quotation

marks omitted)). This, he has failed to do. He has not shown that reasonable jurists

could debate the district court’s resolution of his due-process issue. We therefore deny a

COA on ground two.

IV. CONCLUSION

We deny a certificate of appealability and dismiss this matter.

Entered for the Court

Harris L Hartz Circuit Judge