UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ CHARLES ALFRED ARMAJO, JR., Petitioner - Appellant,

v. WYOMING ATTORNEY GENERAL; STATE OF WYOMING; NEICOLE MOLDEN, Warden of WSP, Respondents - Appellees. No. 22-8049 (D.C. No. 2:21- CV-00184-NDF) (D. Wyo.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before BACHARACH , BALDOCK , and CARSON , Circuit Judges.

________________ _________________ Charles Armajo, Jr., proceeding pro se, 1 seeks a Certificate of Appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2254 petition challenging his conviction in Wyoming state court for se cond-degree sexual abuse of a minor. We deny 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* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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.

1 Because Mr. Armajo proceeds pro se, we construe his arguments liberally, but we “cannot take on the responsibility of se rving as [his] attorney in constructing arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840 (10th Cir. 2005). FILED United States Court of Appeals Tenth Circuit 

### February 16, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 22-8049 Document: 010110813811 Date Filed: 02/16/2023 Page: 12 BACKGROUND A Wyoming jury convicted Mr. Armajo of sexual abuse of a child in the second degree. The victim, ZL, was his fifteen-year-o ld stepdaughter. Mr. Armajo is a Native American. The state alleged Mr. Armajo in appropriately touched ZL in October 2018 when he performed a ce remony in connection w ith ZL’s first hunting trip. ZL informed a school counselor the day after the ceremony that Mr. Armajo touched her inappropriately. The school counselor reported th is information to law enfo rcement, which opened an investigation ultimately leading to the criminal proceedings against Mr. Armajo. At trial, the state’s evidence included testimony from ZL, her mother, the school counselor, and the investigating officers. The Wyoming Supreme Court affirmed Mr. Ar majo’s conviction on direct appeal. See Armajo v. State , 478 P.3d 184, 196 (Wyo. 2020). Mr. Armajo pursued state habeas relief before the Wyoming Supreme Court, whic h denied his petition. He filed his § 2254 petition in the District of Wyoming and amended that petition twice. In his second amended petition, Mr. Armajo brought four claims: (1) violation of his First Amendment rights to practice his religion (i.e., ceremonial/healing rites), (2) ineffective assistance of co unsel (IAC) at trial, (3) IAC on appeal, and (4) denial of his right to exercise his religion under th e American Indian Religious Freedom Act (AIRFA), 42 U.S.C. § 1996. The district court concluded a state procedural bar— Wyo. Stat. Ann. § 7-14-103—applied to clai ms (1), (2), and (4) because Mr. Armajo did not raise them on direct appeal in his stat e appellate proceedings. The district court Appellate Case: 22-8049 Document: 010110813811 Date Filed: 02/16/2023 Page: 23 further concluded the bar was adequate and i ndependent because it wa s firmly established and regularly followed. As to claim (3)—ineffective assistance of state appellate counsel—the court analyzed it both as a freestandi ng habeas claim and as a potential basis to overcome the state procedural bar to his other three clai ms. But the court concluded the claim failed because Mr. Armajo did not allege any suffi ciently prejudicial errors by counsel. Although Mr. Armajo asserted his state appe llate counsel was ineffective for failing to “present four specific errors th at should have been raised,” R. at 109, he never articulated what those errors were. This foreclos ed him from showing that his counsel’s performance was constitutionally deficient or that it resulted in prejudice. The court concluded the detailed testimony of ZL and her mother, alone, was more than sufficient fo r a jury to find . . . beyond a reasonable doubt that [Mr. Armajo] was guilty of seco nd-degree sexual abuse of a minor under Wyoming law. This is true re gardless of whether his trial counsel failed to raise a Brady violation, the privilege against evidence of spousal communications, other allegedly excu lpatory evidence from a cell phone that was not made available for tr ial, and inconsistencies among the testimony and police reports. R. at 210. The court further rejected a ny IAC claims in connection with appellate counsel’s failure to raise i ssues related to either the First Amendment or AIRFA. As the court noted, “[s]tate ‘laws burdening religion are ordinarily not subject to strict scrutiny under the Fr ee Exercise Clause so long as they are neutral and generally applicable.’” R. at 211 (quoting Fulton v. City of Philadelphia , 141 S. Ct. 1868, 1876 (2021)). And it expl ained Mr. Armajo failed to “point to any lack of neutrality, lack of general application, or lack of rational relationship Appellate Case: 22-8049 Document: 010110813811 Date Filed: 02/16/2023 Page: 34 to a legitimate government interest in pr otecting children” in Wyoming’s statute prohibiting sexual abuse of a child. Id . And the court further explained that AIRFA “is simply a policy statement and do es not create a cause of action or any judicially enforceable individual rights. ” R. at 212 (internal quotation marks omitted). Because the First Amendment and AIRFA claims failed as a matter of law, the district court concluded Mr. Arma jo’s counsel was not ineffective for not raising them on appeal. The district court therefore denied M r. Armajo’s petition with prejudice and denied a COA.
DISCUSSION To appeal the denial of his § 2254 petition, Mr. Arma jo must obtain a COA by “showing that reasonable jurist s could debate whether . . . the petition should have been resolved in a different manner or that the issues presente d were adequate to deserve encouragement to pr oceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (internal quotation marks omitte d). Mr. Armajo seeks a CO A to raise three issues on appeal. In the first issue, he presses his IA C claim as to state appellate counsel. In the second, he argues the trial court erroneously inst ructed the jury. In the third, he asserts the district court misapplied AIRFA. No reasonable jurist could debate the district court’s resolution of these issues. As to the first, although Mr. Armajo now appears to articulate the four issues he alleges his appellate counsel missed, he does not show where he did so before the district court. And ordinarily “we do not consider an issue that was not ade quately raised in the Appellate Case: 22-8049 Document: 010110813811 Date Filed: 02/16/2023 Page: 45 federal district court.” Goode v. Carpenter , 922 F.3d 1136, 1149 (10th Cir. 2019). Further, to establish IAC, Mr. Armajo must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, th e result of the proceeding would have been different.” Strickland v. Washington , 466 U.S. 668, 694 (1984). Here though, the district court concluded Mr. Armajo could not make this showing in light of the detailed testimony of ZL and her mother. Mr. Armajo offers no basis to reject this conclusion. Moreover, Mr. Armajo’s representations to the state habeas court indicate his state appellate counsel did raise issues related to his motion for acquittal, sufficiency of the evidence, and prosecutorial misconduct. The Wyoming Su preme Court rejected these arguments, but Mr. Armajo has not demonstrated that rejection was due to ineffectiveness of appellate counsel. We therefor e deny a COA as to this issue. The second issue for which Mr. Armajo seeks a COA—jury instructions—does not appear to bear any relation to the argument s he raised before the district court. We therefore do not consider it for the first time on appeal. See Goode , 922 F.3d at 1149. To the extent we could look past the preservation issue and c onstrue this argument as an extension of his IAC claim as to state appellate counsel, 2 it still fails for want of prejudice. To establish entitleme nt to habeas relief based on a jury instruction, “it must be established not merely that the instruc tion is undesirable, erroneous, or even universally condemned, but that it violated some right which was guaranteed to the

2 The district court considered the jury -instructions issue in connection with Mr. Armajo’s IAC claim as to state appellate counsel, noting also that Mr. Armajo failed to identify the allegedly erroneous inst ruction in his second amended petition. See R. at 212–13. Appellate Case: 22-8049 Document: 010110813811 Date Filed: 02/16/2023 Page: 56 defendant by the Four teenth Amendment.” Cupp v. Naughten , 414 U.S. 141, 146 (1973) (internal quotation marks omitte d). Mr. Armajo does not ev en identify the allegedly defective jury instruction, so he falls well short of showing a Fourteenth Amendment violation. We therefore deny a COA as to this issue. Finally, although Mr. Armajo includes a cha llenge to the district court’s rejection of his AIRFA argument in his listing of i ssues on appeal, he does not develop this argument in his brief. He has therefore waived it, and we deny a COA as to this issue. See Utahns for Better Transp. v. U.S. Dep’t of Transp. , 305 F.3d 1152, 1175 (10th Cir. 2002), as modified on reh’g , 319 F.3d 1207 (10th Cir. 2003) (“[I]ssues will be deemed waived if they are not adequately briefed. We do not consider merely including an issue within a list to be adeq uate briefing.” (citation omitted)).
CONCLUSION We deny a COA and dismiss this matte r. We deny Mr. Armajo’s motion to proceed in forma pauperis for failure to show “the existence of a reasoned, nonfrivolous argument on the law and facts in suppor t of the issues raised on appeal.” DeBardeleben v. Quinlan , 937 F.2d 502, 505 (1 0th Cir. 1991). We deny Mr. Armajo’s motion for discovery.

Entered for the Court

Joel M. Carson III Circuit Judge Appellate Case: 22-8049 Document: 010110813811 Date Filed: 02/16/2023 Page: 6