UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ CLINT RAYMOND WEBB, Petitioner - Appellant,

v. WYOMING DEPARTMENT OF CORRECTIONS MEDIUM CORRECTIONAL INSTITUTION WARDEN; WYOMING ATTORNEY GENERAL, Respondents - Appellees. No. 20-8023 (D.C. No. 1:19-CV-00039-ABJ) (D. Wyo.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY 

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

________________ _________________ Pro se prisoner Clint Raymond Webb wa s convicted in Wyoming state court of multiple offenses against his estranged wife, including atte mpted second-degree murder. He seeks a certificate of appeal ability (“COA”) to challenge the district court’s denial of his 28 U.S.C. § 2254 ha beas petition. Exercising jurisdic tion under 28 U.S.C. § 1291, we deny a COA and dismiss this matter. 1

 This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Webb is pro se, we construe his filings liberally, but we do not act as his advocate. Yang v. Archuleta , 525 F.3d 925, 927 n.1 (10th Cir. 2008). FILED United States Court of Appeals Tenth Circuit 

### March 15, 2021 Christopher M. Wolpert Clerk of Court2 I. BACKGROUND
A. Factual Background In June 2014, Mr. Webb’s estranged wi fe, Julie Webb, was driving her SUV in Casper, Wyoming. While stopped at an inte rsection, she saw Mr. Webb in his pickup truck. He drove by and yelled profanity at he r. At another intersect ion, he crashed his truck into her SUV “with enough force that the airbags deployed and a number of car parts scattered across the road.” Webb v. State , 401 P.3d 914, 919 (Wyo. 2017). He drove away. Ms. Webb exited her car and attempted to call 911. Before she was able to reach an operator, “she heard ‘car engines revvi ng up’” and saw Mr. Webb’s truck turn the

corner. Id. She ran into a nearby yard as “Mr. Webb drove hi s vehicle quickly from the roadway, onto a sidewalk, and toward [her].” Id. She jumped out of the truck’s path “and, with the help of a Good Sa maritan, sought refuge in the . . . Samaritan’s [home].” Id. Mr. Webb drove off, collided with a parked minivan, and fled to Las Vegas, Nevada, where he surrendered to authorities.
B. Procedural History On July 1, 2014, th e State charged Mr. Webb in an information with one count of aggravated assault and battery with a deadly weapon. On July 31 , the State dismissed that information and filed a new one, adding counts of aggravated assault and battery and felony property destruction. On August 15, Mr. Webb demanded a speedy trial. On October 23, the State voluntarily dismissed th e July 31 information and filed a new one, adding a count of attempte d second-degree murder.3 On October 29, 2014, defense counsel sought and received a competency evaluation for Mr. Webb, which “delayed [his trial for] seventy-five days.” Id. at 923. Mr. Webb was deemed competent. Mr. Webb filed another demand for a speedy trial and unsuccessfully moved to dismiss for lack of a speedy trial. Trial began on July 27, 2015 . On July 31, th e jury returned gu ilty verdicts on all counts. The trial court sentenced Mr. Webb to concurrent terms of five to seven years for each count of aggravated assau lt and battery with a deadly we apon, a concurrent term of one to three years for property destruction, an d a consecutive term of 30 to 45 years for attempted second -degree murder. Mr. Webb began several attempts to ove rturn his convictions. Appealing to the Wyoming Supreme Court, he raised speedy tr ial, prosecutorial misconduct, ineffective assistance of trial counsel, jury instructi on, and double jeopard y issues. The court affirmed. Mr. Webb then filed a pro se state postconviction petition asserting speedy trial and ineffective assistance of appellate c ounsel claims. The postconviction court dismissed the petition, reasoning that most of Mr. Webb’s claims were procedurally barred and that others were not legally cognizable. Mr. Webb sought review in the Wyoming Supreme Court, whic h summarily denied review. Mr. Webb next filed the instant habeas petition in federal district court. He alleged a violation of his speedy trial rights, a conflict of interest between trial and appellate counsel, improper use of a priv ileged attorney-client communication, and ineffective assistance of trial counsel. The State filed a response and moved to dismiss4 parts of the petition due to procedural bar an d non-cognizable state law issues. Mr. Webb moved to vacate the State’s accompanying memora ndum because it was two pages over the page limit. The district court denied the motion to vacate 2 and Mr. Webb’s request for an evidentiary hearing. It then dismissed the habeas petition with prejudice and denied a COA. Mr. Webb now seeks a COA from this c ourt on his claims regarding speedy trial (two claims), conflict of interest, and ine ffective assistance of appellate counsel.
C. COA Requirements and AEDPA To appeal the denial of a § 2254 pe tition, a petitioner 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) (quotations omitted). When the district cour t has rejected a habeas claim on procedural grounds, the petitioner must show both (1) “tha t jurists of reason would find it debatable whether the petition states a valid claim of th e denial of a constitutional right,” and (2)

2 Mr. Webb argues the district court viol ated due process by accepting the State’s memorandum. We reject this argument. The district court explained that the memorandum addressed numerous and comple x issues. Mr. Webb’s argument here does not affect whether “he is in cu stody in violation of the Constitu tion or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Nor does he provide any authority that a district court’s application of its local rules to permit the filing of an overlength document violates due process. See Bunn v. Perdue , 966 F.3d 1094, 1100 (10th Cir. 2020) (providing that “a district cour t’s application of its local ru les [is reviewed] for abuse of discretion” (quotations omitted)); Lassiter v. Dep’t of Soc. Servs. of Durham Cnty. , 452 U.S. 18, 24 (1981) (explaining that due process “expresses the requirement of fundamental fairness” (quotations omitted)).5 “that jurists of reason would fi nd it debatable whether the district court was correct in its procedural ruling.” Id. Our consideration of a habeas petitioner’s request for a COA must account for the Antiterrorism and Effective Death Penalty Ac t’s (“AEDPA”) “deferential treatment of state court decisions.” Dockins v. Hines , 374 F.3d 935, 938 (10th Cir. 2004). Under AEDPA, when a state court has adjudicated th e merits of a claim, a federal court may grant habeas relief only if the state court decision “was contrary to, or involved an unreasonable application of, clearly estab lished Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in li ght of the evidence presented in the State court proceeding,” id. § 2254(d)(2). We therefore “look to the District Court’s application of AEDPA to [Mr. Webb’s] co nstitutional claims and ask whether that resolution was debatable amongst jurists of reason.” Miller-El v. Cockrell , 537 U.S. 322, 336 (2003). In addition to these demanding AEDPA st andards, federal habeas petitioners face procedural hurdles. “Federal habeas revi ew is generally barred where the prisoner defaulted his federal claims in state court pu rsuant to an independent and adequate state procedural rule . . . .” Smith v. Duckworth , 824 F.3d 1233, 1242 (10th Cir. 2016) (quotations omitted). And when a habeas petition contains unexhausted claims, 3 a federal

3 To fairly present a claim, and therefore to exhaust it, state prisoners “must give the state courts one full opportunity to re solve any constitutional issues by invoking one complete round of the State’s established appellate review process.” O’Sullivan v. Boerckel , 526 U.S. 838, 845 (1999). “The exhaus tion requirement is satisfied if the6 court may apply an anticipatory procedural bar to those claims if “the court to which the petitioner would be requi red to present his claims in order to meet the exhaustion requirement would now find the cl aims procedurally barred.” Thomas v. Gibson , 218 F.3d 1213, 1221 (10th Cir. 2000) (quotations omitted). A prisoner may overcome procedural bar in federal court “(1) if the prisoner has alleged sufficient cause for failing to raise the claim and resulting prejudice or (2) if denying review would result in a fundamental miscarriage of justice because th e petitioner has made a credible showing of actual innocence.” Frost v. Pryor , 749 F.3d 1212, 1231 (10th Cir. 2014) (quotations omitted).
II. DISCUSSION In his brief to this court, Mr. Webb seeks a COA on his claims regarding speedy trial, conflict of interest, and ineffe ctive assistance of appellate counsel.
A. Speedy Trial
1. Additional Procedural Background on Speedy Trial

a. State court proceedings On direct appeal to the Wyoming Suprem e Court, Mr. Webb argued he suffered a speedy trial violation under (1) Wyom ing Rule of Criminal Procedure 48 4 and (2) the Sixth Amendment.

issues have been properly pres ented to the highest state court, either by direct review of the conviction or in a po stconviction attack.” Brown v. Shanks , 185 F.3d 1122, 1124 (10th Cir. 1999) (quotations omitted).

4 Wyoming Rule of Crimin al Procedure 48, entitled, “Dismissal; Speedy Trial,” provided at the times releva nt to Mr. Webb’s case:7 i. Rule 48 Mr. Webb argued that, under Rule 48, “so long as a defendant has filed a demand for a speedy trial, the State is barred from re filing charges after the original charges are dismissed for any reason .” Webb , 401 P.3d at 920 (emphasis added). The Wyoming Supreme Court disagreed, stating that “Rul e 48(b)(7) makes it clear that Mr. Webb’s speedy trial demand could affect the re-filing of charges only if the previous charges were dismissed due to a lack of speedy trial .” Id. (emphasis added). And that did not happen, the court said, because the State dismissed the July 31 information just 92 days after its filing. Id. 5

(a) . . . The attorney for the state may, by leave of court, file a dismissal of an indictment, information or citation, and the prosecution shall thereupon terminate. . . . (b) Speedy trial.—

. . . . (2) A criminal charge shall be br ought to trial w ithin 180 days following arraignment unless cont inued as provided in this rule.

. . . . (5) Any criminal case not trie d or continued as provided in this rule shall be dismissed 180 days after arraignment.

. . . . (7) A dismissal for lack of a speedy trial under this rule shall not bar the state from again prosecuting the defendant for the same offense unless the defenda nt made a written demand for a speedy trial or can demonstrate prejudice from the delay. Wyo. R. Crim. P. 48 (emphasis added).

5 Two justices dissented, stating that wh ile the majority’s view was “technically correct,” “acquiescence in the State’s repeat ed circumvention of the speedy trial rule by dismissing and refiling to start the clock anew has the effect of eviscerating” the rule. Id. at 929-30 (footnote omitted) (JJ. Fox and Burke, concurring in part and dissenting in part).8 In his state postconviction petition, M r. Webb argued the Wyoming Supreme Court “appl[ied] two conflicting interpretations to W.R.Cr.P . 48(b)(7)” and “reward[ed] the prosecution for a[n] unnecessary dela y [ ]through dismissing and re-filing” the charges. ROA, Vol. I at 529, 536. Th e postconviction court said his claim was procedurally barred by Wyo. Stat. Ann. § 7-14-103(a)(iii) because the claim was decided earlier on the merits: 6 “Although Webb phrases the cl aims as something new, the substance is still his assertion that his spee dy trial rights were violated. The [Wyoming] Supreme Court has already determined those ri ghts were not violated.” ROA, Vol. I at 1126 (citation omitted). 7 Mr. Webb advanced his postco nviction claim in the Wyoming Supreme Court, which denied relief without comment. ii. Sixth Amendment Addressing the Sixth Amendment claim on direct appeal, the Wyoming Supreme Court analyzed the factors in Barker v. Wingo , 407 U.S. 514, 530 (1 972) (length of the

6 Wyoming Statute § 7-14-103 governs the do ctrine of procedural bar in Wyoming courts regarding petitions fo r postconviction relief: (a) A claim under this act is proc edurally barred and no court has jurisdiction to decide th e 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) Was not raised in the original or an amendment to the original petition under this act; or (iii) Was decided on its merits or on procedural grounds in any previous proceeding which has become final.

7 Further, the postconviction court said, “Mr. Webb wrongly treats this petition as an appeal, arguing that the Wyoming Suprem e Court erred in applying the law to his case[,] and arguing the s ubstance of his speedy trial claims.” Id.9 delay, reason for the delay, the defendant’s a ssertion of his right, and resulting prejudice), and held that the 396-day pe riod from the first informa tion’s filing to Mr. Webb’s conviction did not result in a speedy trial violation. Webb , 401 P.3d at 924-25. The court found the first Barker factor, length of the delay, did not favor Mr. Webb because he “was convicted of multiple serious felony offenses, and the trial concluded only thirty-one days after the one-year anniversary of the State filing the first Information.” Id. at 922. As for the second factor, reason for the de lay, the court found it was neutral. It said the 75-day delay caused by the competen cy evaluation did not count against either side. And while the State caused delay by twice dismissing and refiling the charges, there were no facts to “support a finding that the State dismissed the first two Informations in an attempt to thwart Mr. Webb’s defense.” Id. at 923. Finally, the court observed that Mr. Webb had delayed the proc eedings by fleeing to Nevada and later selecting a trial date three weeks af ter the first available start date. Turning to the third Barker factor, the defendant’s asse rtion of his speedy trial right, the court determined it only “slightly ” weighed in Mr. Webb’s favor because, shortly before trial, he re quested a second competency ev aluation, new counsel, and a continuance. Id. On the last Barker factor, prejudice, the court said it did not weigh in Mr. Webb’s favor because the “defense was not hindered by the” 396-day peri od from the filing of charges to conviction. Id. at 924. The court rejected Mr. Webb’s assertion that “the delay prevented his attorneys from inspectin g Ms. Webb’s [SUV],” as the police never10 took it into eviden ce and simply released it to her. Id. Nor did the court discern any prejudice from the delay’s imp act on witness recollections gi ven Mr. Webb’s opportunity to cross-examine witnesses about inconsistent statements and testimony. Finally, the court found no “extraordinary or unusual pretrial anxiety” caused by the delay that would have been prejudicial. Id. 8 Thus, “balanc[ing] all of the Barker factors, [the Wyom ing Supreme Court] conclude[d] that Mr. Webb’s right to a speedy trial was not violated.” Id. b. Federal district court proceedings The district court said th at insofar as Mr. Webb’s claim “allege[d] constitutional violations arising from the Wy oming Supreme Court’s analysis of the Wyoming Rules of Criminal Procedure,” the claim presented a non -reviewable state law issue. ROA, Vol. II at 143. As to the Sixth Amendment speedy tr ial issue, the district court “deemed [it] exhausted but procedurally defaulted” because Mr. Webb’ s postconviction petition did not contain “one word about the Sixth Amendment.” Id.

8 “The fourth factor, prejudice to the defend ant, should be assesse d . . . in the light of the interests of defendants which the speedy trial right was designed to protect, i.e., (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Lott v. Trammell , 705 F.3d 1167, 1174 ( 10th Cir. 2013) (quotations omitted). Mr. Webb does not address the Wyoming Supreme Court’s analysis of prejudice in his COA application. The issue is therefore waived. See United States v. Springfield , 337 F.3d 1175, 1178 (10th Cir. 2003) (concluding that the applican t waived his claim on appeal “because he failed to address that claim in either his a pplication for a COA or his brief on appeal”). Moreover, even if he had addressed the issue, it would, in part, be anticipatorily barred because his appellate counsel raised on di rect appeal only the anxiety and defenseimpairment elements of prejudice. See Lott , 705 F.3d at 1179 (applying anticipatory bar to two of the petitioner’s Barker prejudice arguments).11 2. Analysis To the extent our analysis of these claims varies from the district court’s, we may deny a COA on a ground that is supported by the record even if the district court did not rely on it. See Davis v. Roberts , 425 F.3d 830, 834 (10th Cir. 2005).

a. Wyoming Rule of Criminal Procedure 48 claim In his brief to this court, Mr. Webb clai ms his due process rights were violated by the “state courts unfairly applying two conf licting meanings” to the word “dismissal” in Wyoming’s speedy trial rule, Wyo. R. Crim. P. 48 . Pet. Br. at 21. He contends that “[b]y applying two competing meanings to ‘dismissal[,]’ the state is able to continually dismiss charges within 180 days and re file the charges to start th e speedy trial time clock anew for years and years without ever br inging a defendant to trial.” Id. at 24. Mr. Webb’s arguments in the Wy oming Supreme Court and the state postconviction court complained about the interpretation and application of Rule 48. He did not explicitly assert a federal constitutio nal claim. Federal habeas relief is not available to correct errors of state law. “[I]t is not the province of a federal habeas court to reexamine state-court determin ations on state-law questions.’’ Estelle v. McGuire , 502 U.S. 62, 67-68 (1991). If Mr. Webb implicitly alleged a due proc ess violation in the state courts and attempts to advance that argument in his fede ral habeas proceedings, “a habeas applicant cannot transform a state law claim into a fe deral one merely by attaching a due process label.” Leatherwood v. Allbaugh , 861 F.3d 1034, 1043 (10th Cir. 2017). He has done12 little more than that. 9 Indeed, his due process theory in this court rests on the same argument his appellate counsel made in st ate court—that Rule 48(b)(7) prohibits the re-filing of charges if the defendant ha s demanded a speedy trial and there is any dismissal under the rule. The Wyoming Supreme Court’s resolution of this issue presents a non-reviewable determination of state law. b. Sixth Amendment claim The federal district court did not address the Wyoming Supreme Court’s application of Barker . Instead, it said Mr. Webb’s Barker claim was unexhausted and procedurally defaulted in state court. Bu t the claim was exhausted, as Mr. Webb had raised it on direct appeal, so we address it under AEDPA review. Mr. Webb claims the Wyoming Supreme Court’s decision rejecti ng his Sixth Amendment speedy trial claim was contrary to, or an unr easonable application of, Barker v. Wingo . Reasonable jurists would not debate the district court’s denial of this claim, so we deny a COA. In his request for a COA, Mr. Webb cont ests the weight assigned by the Wyoming Supreme Court to the Barker factors. He contends the factors weigh in his favor because he merely committed “an ordinary street cr ime,” the court’s “ove rcrowded docket” was attributable to the State, the State was more to blame for the delay, and he had vigorously asserted his speedy trial right. Pet. Br. at 47-48. But Mr. Barker has not shown that attempted second-degree murder is an ordinary street crime or that an overcrowded

9 The same analysis applies to Mr. Webb ’s argument that the Wyoming Supreme Court’s speedy trial decision on direct appe al violated “his equal protection right” because it “treated [him] differe ntly than those similarly situ ated.” Pet. Br. at 46.13 docket delayed his trial. And he has not addressed the delays from his fleeing to Nevada (23 days), rejecting an earlier trial date (21 days), and seek ing a competency evaluation (75 days). It was not unreasonable for the Wyoming Supreme Court to deduct these time periods from the 396 days it took to try a nd convict Mr. Webb. Finally, Mr. Webb has not shown the court unreasonabl y discounted his assertions of the speedy trial right in light of his requests for a second competen cy evaluation, new counsel, and a trial continuance. Mr. Webb’s “arguments . . . do nothing to establish that the [Wyoming Supreme Court’s] determination was an unreasonable a pplication of clearly established federal law.” Lott v. Trammell , 705 F.3d 1167, 1177 (10th Cir. 2013); see also Jackson v. Ray , 390 F.3d 1254, 1267 (10th Cir. 2004) (“In order to grant habeas relief [on a speedy trial claim], . . . we must find purs uant to clearly established S upreme Court law that there is no possible balancing of these factors that is c onsistent with the [state appellate court’s] decision.” Jackson v. Ray , 390 F.3d 1254, 1267 (10th Cir. 2004)

. 10
* * * * Mr. Webb has not shown that reasonable ju rists could debate the district court’s denial of his speedy trial claims.

10 See also Davis v. Kelly , 316 F.3d 125, 127 (2d Cir. 2003) (“Balancing the Barker factors necessarily requires a court to make discretionary judgments.”); Rashad v. Walsh , 300 F.3d 27, 45 (1st Cir. 2002) (suggesting that AEDPA “deference is heightened in a Barker -type case, because constructing a balance among the four factors is more judicial art than scien ce” (quotations omitted)).14 B. Conflict of Interest In the state postconviction proceedings, M r. Webb claimed his appointed appellate counsel was ineffective due to a conflict of interest with appointed trial counsel. He argued that because both sets of attorneys were from th e Wyoming Public Defender’s Office, appellate counsel “chose to protect th e interests of her fellow attorneys from her office by omitting issues that have merit on the claim of ineffective assistance of [trial] counsel.” ROA, Vol. I at 1150. The postco nviction court rejected the claim on separate procedural grounds, reasoning that (1) “appellat e counsel raised ineffective assistance of trial counsel on direct appeal, ineffective assist ance of counsel is a single claim or issue, and claims already addressed on the merits are procedurally barred”; 11 and (2) Wyoming’s postconviction statute “provides re lief only for errors in the proceedings which resulted in [the defendant’s] conviction or sentence.” Id. at 1125-26 (quotations omitted).

11 On direct appeal, appellate counsel ra ised one ineffective assistance claim, which targeted trial counsel’s failure to “r equest a jury instruction on accident.” Webb , 401 P.3d at 926. The Wyoming Supreme C ourt held that Mr. Webb was not prejudiced because “Mr. Webb was not precluded from argui ng the events at issu e were the product of an accident” based on the othe r instructions on intent. Id. at 927. Wyoming sets an expansive bar in pos tconviction proceedings for ineffective assistance of appellate counsel claims if there was a claim of ineffectiv e assistance of trial counsel on direct appeal. See Schreibvogel v. State , 269 P.3d 1098, 1103 (Wyo. 2012) (“Where the appellant has raised the claim of in effective assistance of trial counsel in his direct appeal,” he may not “raise the clai m again, on different factual grounds, in a petition for post-conviction relief by arguing th at appellate counsel was ineffective for not raising those differe nt factual grounds[.]”).15 In his request for a COA, Mr. Webb comp lains he “has been procedurally barred from having his ‘fundamental’ claim of ineff ective assistance of appellate counsel heard in any court.” Pet. Br. at 35. But, even if th is claim of conflict of in terest is procedurally barred, we exercise our discreti on to address it on the merits. See Smith , 824 F.3d at 1242 (observing that where a “claim may be di sposed of in a straightforward fashion on substantive grounds, this court retains discre tion to bypass the procedural bar and reject the claim on the merits” (quotations omitted)); cf. Cone v. Bell , 556 U.S. 449, 466 (2009) (“When a state court declines to review th e merits of a petitioner’s claim on the ground that it has done so already, it creates no bar to federal habeas review.”). Our case law recognizes no inherent conf lict when the same public defender’s office employs appellate and trial counsel. See Smallwood v. Gibson , 191 F.3d 1257, 1270 (10th Cir. 1999) (rejecting conflict of interest argument where appellate counsel from same public defender’s office “raised ove r twenty issues on direct appeal, including an ineffective assistance of counsel claim”). Mr. Webb speculates that appellate counsel chose to protect trial counsel by omitting the ineffective assist ance claims he requested. But this does not show “that a relationshi p to trial counsel hindered his appellate counsel.” Cuesta-Rodriguez v. Carpenter , 916 F.3d 885, 902 (10th Cir. 2019) (rejecting habeas petitioner’s “infer[ence] [of] potential ba ses for conflicts” and “invit[ation] . . . to imagine the dilemma appellate counsel migh t be placed in” (brackets and quotations omitted)), cert. denied , 140 S. Ct. 844 (2020). 12

12 See also Keats v. State , 115 P.3d 1110, 1113, 1117 (Wyo. 2005) (concluding that petitioner’s ineffective trial counsel cl aim was not subject to the § 7–14–103(a)(i)16 Reasonable jurists could not debate the dist rict court’s denial of this claim. A COA is thus not warranted.
C. Ineffective Assistance of Appellate Counsel
1. Procedural Background In his state postconviction petition, Mr. Webb claimed that appellate counsel should have argued (1) trial counsel’s in effectiveness in inte rviewing witnesses, presenting evidence, impeaching witnesses, investigating tir e marks, and not compelling the prosecution to produce Ms. Webb’s SUV; (2) Brady violations; and (3) prosecutorial misconduct. The postconviction court found the firs t ground procedurally defaulted by Wyo. Stat. Ann. § 7-14-103(a)(iii) be cause Mr. Webb had already clai med on direct appeal that trial counsel was ineffective. See supra note 11. The second ground concerned alleged Brady violations arising from the State’s releasing the SUV to Ms. Webb and not disclosing evid ence of witness perjury. 13 The

procedural bar where petitioner’s “direct ap peal was handled by trial counsel’s law office, and trial counsel’s employee,” felt “ it would have been [in]appropriate to” claim her “boss” was ineffective (quotations omitted)).

13 Regarding witness perjury, Mr. Webb “complain[ed] about the difference between witnesses’ statements at trial compared to the polic e reports . . . disclosed in discovery.” ROA, Vol. I at 1128. For inst ance, he noted that w itness DeGraeve testified at trial she was “standing with Ms. Webb near the back of her Honda Odyssey when Mr. Webb cut across the corner of her yard,” despite earlier sta ting in a video disclosed by the prosecution that “she [Ms. DeGraeve] was in front of her Honda Odyssey.” Id. at 671-72. Similarly, Mr. Webb complained that witness Holley testified at trial he was standing outside on his father’s driveway an d could see there was on ly one person in Mr. Webb’s truck when it “cut acro ss the corner yard,” despite earlier stating in a video17 postconviction court resolved the claim on th e merits, finding no in effective appellate assistance because there was no evidence the State prevented Mr. Webb from inspecting Ms. Webb’s SUV or withheld evidence of w itnesses’ prior inconsistent statements. Mr. Webb based his third ground, prosec utorial misconduct, on his allegation that the State obtained a letter he wrote to defe nse counsel while in ja il. The postconviction court found no ineffective assistance because Mr. Webb (a) only speculated that the State obtained the letter and (b) waived the attorney -client privilege by sending the letter to his mother for copyin g and forwarding. The Wyoming Supreme Court summarily denied review of the postconviction court’s decision. In his federal habeas petition, Mr. Webb asserted numerous claims of ineffective assistance of trial counsel, some of which appear to correspond to the claims he raised in the postconviction proceedings and some of which do not. Regarding his exhausted claims, we proceed to the merits. 14

disclosed by the prosecution that he witnesse d the incident from inside his father’s house and could not see if anyone else was in the truck. Id. at 674.

14 Regarding any unexhausted claims, we apply anticipatory procedural bar because Mr. Webb would be ba rred from returning to the Wyoming postconviction court to exhaust them. See Wyo. Stat. Ann. § 7-14-103(a)(ii) (“A claim under this act is procedurally barred and no court has jurisdic tion to decide the claim if the claim . . . [w]as not raised in the orig inal or an amendment to th e original petition . . . .”); see also Bland v. Sirmons , 459 F.3d 999, 1012 (1 0th Cir. 2006) (stating that “[g]enerally, a federal court should dismiss unexhausted claims wi thout prejudice so that the petitioner can pursue available state-court remedies,” but “i f the court to which Petitioner must present his claims in order to meet the exhaustio n requirement would no w find those claims procedurally barred, there is a procedural default for the purposes of federal habeas review” (quotations omitted)).18 2. Legal Background The Supreme Court established the ineffec tive assistance of counsel standard in Strickland v. Washington , 466 U.S. 668 (1984). Under Strickland , a defendant is entitled to relief if (1) counsel’s performance was de ficient, and (2) the defendant was thereby prejudiced. Id. at 687-88. A defendant establishes the first Strickland requirement by showing counsel’s performance “fell below an objective standard of reasonableness.” Id. To meet this requirement, the defendant must overcome a “strong presumption that counsel’s conduct [fell] within the wide range of reasonable professional assistance . . . [and] might be considered sound trial strategy.” Id. at 689 (quotations omitted). “A

Anticipatory procedural bar can be ove rcome only by establishing cause and prejudice or a fundamental miscarriage of justice. Frost , 749 F.3d at 1231. Mr. Webb argues that he has cause for not exhaustin g ineffective-assistance claims because appellate counsel “acted to protect trial counsel [ ] that were in their office.” Pet. Br. at 37. We have already rejected this argument. He also alleges actual innocence. He mu st identify new evidence “sufficient to show that it is more likely th an not that no reasonable juror would have convicted [him] in the light of th e new evidence.” Frost , 749 F.3d at 1232. As new evidence, he cites (1) the “analyses” of “four automotive body and collision experts” w ho purported ly opined that his vehicle was damaged by a side imp act; and (2) tire marks allegedly showing he “decelerated in order to avoi d hitting Ms. Webb.” Pet. Br. at 41-42. Mr. Webb discussed this evidence in his postconviction petition as showing that “Ms. Webb was the one who hit Mr. Webb’s [truck],” ROA, Vol. I at 429, and he “let off the gas pedal,” leaving tire marks on a driveway, “when she ran out [on foot] from in front of [a parked car] and across his path of travel,” id. at 430. Even if this is new ev idence, it hardly proves that he “had no intention to cause any type of harm.” Id. at 428. The Wyoming Supreme Court’s recitation of the facts, which Mr. Webb has not demonstrat ed is unreasonable, indicates that he purposefully collided with Ms. Webb’s SUV and th en tried to run her down as she was on foot. He has not shown that “in light of the new evidence, no juror, acting reasonably, woul d have voted to find him guilty beyond a reasonable doubt.” McQuiggin v. Perkins , 569 U.S. 383, 386 ( 2013) (quotations omitted) (“caution[ing] . . . that tenable actual-innocence gateway pleas are rare”).19 claim of appellate ineffectiveness can be base d on counsel’s failure to raise a particular issue on appeal, although it is difficult to show deficient performance under those circumstances because counsel need not (and shou ld not) raise ever y nonfrivolous claim
. . . .” Cargle v. Mullin , 317 F.3d 1196, 1202 (10th Cir. 2003) (quotations omitted). A defendant establishes the second requireme nt of prejudice by showing “there is a reasonable probability that, but for counsel’s unprofessiona l errors, the result of the proceeding would have been different.” Id. at 694.
3. Analysis

a. Trial counsel’s performance in interv iewing witnesses, presenting evidence, impeaching witnesses, investigating tire marks, and not compelling the production of Ms. Webb’s SUV In his COA application, Mr. Webb ar gues that “[a]ppellate counsel omitted the many issues of ineffective assistance of [trial ] counsel that [he wanted] asserted [on direct appeal].” Pet. Br. at 37. He complains th at trial counsel failed to proffer evidence to “corroborate [his] testimony that Ms . Webb drove into [his truck],” id. at 38; failed to investigate the tire marks from his truck to show he “took actions to avoid hitting Ms. Webb,” id. ; and failed to investigate a rock on the roadway to show he “accidentally sideswipe[d] the [minivan],” id. at 39. According to Mr. Webb, had trial counsel offered this evidence, the result of his trial would likely have been differe nt. As previously noted, these issues were not raised on dir ect appeal, and the state postconviction court held they were procedurally defaulted. We nonetheless, as with the conflict-of-interest claim, review this ineffective assi stance claim on the merits de novo.20 Mr. Webb does not address the State’s evid ence against him. At most, he asserts that Ms. Webb and three other prosecutio n witnesses “gave perjured testimonies regarding the location of Ms. Webb.” Id. at 43. Strickland requires more. Even assuming trial counsel’s performance was defi cient, “the defendant [must] affirmatively prove prejudice” by “show[ing] that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland , 466 U.S. at 693, 694. The prej udice analysis necessarily requires “consider[ation] [of] the totality of the ev idence before the judge or jury.” Id. at 695. Because Mr. Webb does not address the tota lity of the evidence against him, he has not shown prejudice from trial counsel’s representation. And by extension, he has not shown that appellate counsel perfo rmed deficiently by omitting Mr. Webb’s ineffective trial counsel claims. See Cargle , 317 F.3d at 1202 (explaining that when analyzing appellate counsel’s performance, we “look to the merits of the omitted issue,” and “if the issue is meritless, its omission will not constitute deficient performance” (quotations omitted)). 15

15 Mr. Webb argues the district court viol ated his constitutiona l rights by denying him an evidentiary hearing to present the evidence omitted by trial counsel. He maintains he “has presented critical physical evidence that was not presented at trial,” Pet. Br. at 49, and that such evidence is consistent with the post trial opinions of “four different automotive body and collision e xperts” who “explained that th e damage to [his] vehicle occurred from a side impact and therefore co uld not have happened from [him] hitting or ‘ramming’ Ms. Webb’s [SUV],” id. at 41. The district court denied Mr. Webb’s ev identiary hearing request as premature because it had neither completed reviewing the nearly 1,600 page s of documents the parties had submitted nor rule d on Respondents’ motion to di smiss. The court did not expressly revisit the issue of an evidentiary hearing. Whet her to conduct an evidentiary hearing in habeas proceedings is within the discretion of the district court. See Fairchild21 b. Brady Because the state postconviction court ad dressed this part of the ineffective assistance claim on the merits, finding no in effective assistance of appellate counsel, Mr. Webb’s claim is subject to AEDPA review. A Brady violation requires proof that “(1) the prosecution suppressed evidence; (2) the evidence was favorab le to the accused; and (3) the evidence was ma terial to the defense.” Becker v. Kroll , 494 F.3d 904, 924 (10th Cir. 2007) (quotations omitted). The po stconviction court’s fi nding of no appellate ineffectiveness in omitting a Brady claim was reasonable because the State did not prevent Mr. Webb from inspecting Ms. Webb’s SUV. Brady also protects a defendant from the improper suppression of impeachment evidence. United States v. Torres , 569 F.3d 1277, 1282 (10th Cir. 2009). The postconviction court’s determination of no ineffectiveness of appellate counsel in omitting this type of Brady claim was reasonable because there was no indication the State failed to disclose impeachment evidence.

c. Prosecutorial misconduct The postconviction court also reviewed this claim on the merits, again limiting federal court review of that court’s decisi on to reasonableness under AEDPA. The state court reasonably concluded that appellate counsel was not ineffective for omitting a misconduct claim premised on a violation of the attorney-client privilege given that

v. Workman , 579 F.3d 1134, 1147 (10t h Cir. 2009). And where, as here, a petitioner’s habeas claims are capable of being resolved on the existing record, there is no entitlement to an evidentiary hearing. Torres v. Mullin , 317 F.3d 1145, 1161 (10th Cir. 2003).22 Mr. Webb had waived the privilege. See United States v. Ary , 518 F.3d 775, 782 (10th Cir. 2008) (“Because confidentiality is critical to the privilege, it will be lost if the client discloses the substance of an otherwise pr ivileged communication to a third party.” (quotations omitted)).
* * * * Reasonable jurists could not debate the di strict court’s denial of the ineffective assistance of appellate counsel claims.
III. CONCLUSION We deny a COA and dismiss this matter.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge