* After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

1 This habeas petition is governed by the “old” provi sions of the habeas statute at 28 U.S.C. § 2254 (1994), i.e., the versi on prior to its amendment in 1996 by the Antiterrorism and Effective Death Penal ty Act (AEDPA), Pub. L. No. 104-332, 110 Stat. 1214 (1996) (codified at 28 U.S. C.A. § 2254), because (continued...) 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 4 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TIMOTHY LEE TALBOTT, Petitioner-Appellant, v. JIM FERGUSON, Warden, Wyoming State Penitentiary; and the WYOMING ATTORNEY GENERAL, Respondent-Appellee. No. 97-8091 (D.C. No. 96-CV-018B) (District of Wyoming)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL and MURPHY , Circuit Judges.

In this appeal of the district court’s dismissal of a state prisoner’s federal habeas petition under 28 U.S.C. § 2254 (1994), 1 an inmate at the Wyoming State1 (...continued)

Talbott’s petition was filed four months before the effective date of the AEDPA. See United States v. Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997) (footnote circulated en banc). As a result, we her eby grant Talbott a certificate of probable cause for this appeal under 28 U.S.C. § 22 53 (1994). - 2 - Penitentiary challenges his 20- to 30-year sentence for second-degree murder on the grounds that his conviction was obtained throug h the use of an illegally obtained confession. Because we conclude that the government’s references to this confession during its opening statement in the petitioner’s state trial do not constitute clear error, we affirm the dismissal of the petition.

I. Timothy Lee Talbott, petitioner-appellant, was conv icted of second-degree murder for the shooting death of his wife, Betty Jo Talbott. See Talbott v. State , 902 P.2d 719, 720 (Wyo. 1995) (affirming Talbott’s conviction). Talbott contends that investigators extracted a confession from him during a police station interrogation by improperly relying on stat ements he had made to police during an interview the day before at a motel. (Se e R., Doc. #1, “Petition for a Writ of Habeas Corpus,” at 6.) Talbott contends th at all of these statements were obtained in violation of his right to counsel becau se Talbott initially told police during his first contact with them -- one day befor e the police station interrogation -- that he wished to deal with invest igators “only” through his2 In Edwards , the Court held that an accused person, “having expressed his

desire to deal with the police only through counsel , is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further commun ication, exchanges, or conversations with the police.” Edwards v. Arizona , 451 U.S. 477, 484-85 (1981); see also United States v. Giles , 967 F.2d 382, 385 (10th Cir. 1992) (“Once an individual invokes his right to an attorney, all qu estioning by law enforcement officers must cease until an attorney is present.”)

.

3 Our record in this appeal is not entirely clear, but it appears that although the state trial court allowed the admission of Talb ott’s statements from his interrogation at the police station, the court did not allow the statements that Talbott made to police at the motel the day before. (See R., Doc. #6, at 660-61.) Our record does not indicate the precise legal basi s for the trial court’s suppression of Talbott’s statements at the motel. - 3 - counsel. (See id. ) Talbott contends that all subsequent questioning by police violated the rule in Edwards v. Arizona , 451 U.S. 477, 484-85 (1981), 2that absent a clear and unambiguous waiver of the right to coun sel, police may not reinitiate questioning once a person has invoked his right to counsel. (See R., Doc. #1, at 6.) Prior to Talbott’s state trial, the trial court rej ected Talbott’s motion to suppress the statements he made during his police s tation interview, ruling that these statements were not fruits of any constitutio nal violation and could be used in the government’s case-in-chief. 3 See Talbott , 902 P.2d at 721. However, for reasons that are not apparent in the record, the pr osecution did not seek to introduce any evidence of Talbott’s incriminating s tatements during the government’s case-in-chief. See id. Indeed, when the prosecution sought to4 Our record does not include a transcript of the pro secutor’s opening

statement. The report of Talbott’s direct appeal, however, provides the following recitation from the prosecutor:

May it please the Court, Counsel, ladies and gentlemen of the jury. The charge in this case is second degree murder, and the State’s evidence will show y ou that Betty Talbott was murdered by Tim Talbott, her husband -- that man seated right there on the corne r -- by his own confession given to law enforcement officers. He’ll describe how about 1:30 in the morning of September 25, 1993, at the parties’ home here in Gillette, after an alcohol fueled argument, he held a .25 caliber pistol to Betty Talbott’s head and fired a bullet into her brain. He’ll tell you in his confession how after the argument he retrieved the pistol from a closet in their home, how he pressed it to Betty Talbott’s foreheadto shut her up, as he put it. As he held the pistol t here with his finger on the trigger, he will claim that the p istol discharged by accident as he stumbled or staggered, and that it killed his wife. You’ll also learned from that same confession (continued...)

- 4 - admit the evidence during its rebuttal presentation , the trial court refused to allow the evidence on the grounds that it should have bee n offered during the case-inchief. (See R., Doc. #6, “Answer,” Ex. C., at 664-65.) The only reference to Talbott’s “confession” during Talbott’s trial came at the very beginning when, in the government’s openin g statement, the prosecutor repeatedly stressed that the evidence of the defend ant’s guilt would be provided by the defendant’s own words. 4See Talbott , 902 P.2d at 721-22. Talbott’s4 (...continued) how for the next 12 hours after the shooting the defendant left Betty Talbott’s lifeless body seatedright where she’d been killed while he drank, made a trip to a liquor store, and tried to decide what to do. His confession will show you that at last he decided to call his father and claim that Betty had committed suicide. Talbott , 902 P.2d at 721-22.

5 The three issues were: 1) The trial court erred in failing to suppress all of Talbott’s statements to police because of violations of Mirandaand Edwards

. 2) The trial court erred in failing to find that th e Talbott’s statements during the police station interview were fruits of the poisonous tree stemming from the unconstitutional interrogation th e day before. 3) The trial court erred in rejecting Talbott’s pr offered jury instruction on the voluntariness of a confession. (continued...) - 5 - counsel did not object to these references to Talbo tt’s “confession,” and at no time did Talbott’s counsel ask for any specific lim iting instruction with respect to these comments. See id. at 722. The trial court provided a general limiti ng instruction before opening statements were given, c autioning jurors that statements by lawyers could not be considered evide nce, and this instruction was repeated in the written instructions given to the j ury before it retired for deliberations. See id. Following Talbott’s conviction, he filed an appeal with the Wyoming Supreme Court raising three issues, all related to the government’s use of Talbott’s confession. 5 The court ruled, though, that even if police obta ined the5 (...continued)

See Talbott , 902 P.2d at 720-21.

6 The record before us does not indicate why the Wyom ing Supreme Court described the question of the prosecutor’s opening statement as only “considered peripherally by the appellant in his brief.” See Talbott , 902 P.2d at 721. Talbott has not provided us with a copy of his brief in that case, and we cannot determine whether the questions surrounding the prosecutor’s opening statement were raised in the context of a federal constitutional claims. Nevertheless, Talbott’s federal habeas petition exp licitly asserts only “the three issues which were raised within [the] direct appeal of his conviction.” (See R., Doc. #1, at 6(a).) In their answer to Talbott’ s petition, the respondents concede that “the three issues contained in the pet ition” were fairly presented to the state courts through Talbott’s direct appeal. (See R., Doc. #6, at 2, ¶ 5.) In light of this concession, we need not question whether Talbott has satisfied the requirements of full exhaustion of his federal clai ms. See Odum v. Boone , 62 F.3d 327, 332 n.2 (10th Cir. 1995) (holding that th e exhaustion doctrine in habeas proceedings is not jurisdictional and may be waivedby the state). - 6 - confession in violation of Talbott’s right to couns el, he suffered no prejudice from this violation because no evidence of the conf ession was admitted during the trial. See Talbott , 902 P.2d at 721. The Wyoming Supreme Court then went on to address what it described as the “peripheral” issue of the prosecutor’s opening

statement. 6See id. The court held that the prosecutor’s comments didnot constitute reversible error because the prosecutor had a good-faith belief that the evidence of Talbott’s confession was available and admissible and also because any error in the comments was cured by the trial co urt’s instructions to the jury.
See id. at 722. Talbott filed this habeas petition on January 17, 1 996, contending that his conviction was “obtained by use of illegally obtain ed statements (confession), in7 Talbott’s habeas petition states that he intends fo r his petition to

“incorporate all three issues which were raised within [his] direct appeal. . . .” (See R., Doc. #1, at 6(a).) - 7 - violation of the Fifth and Fourteenth Amendments to the U.S. Constitution. . . .” 7 (R., Doc. #1, at 6(a).) The magistrate judge who c onsidered Talbott’s habeas petition recommended that the district court dismis s the case on the state’s motion under Fed. R. Civ. P. 12(b)(6) because Talbott had failed to show that the prosecutor’s remarks “substantially and injuriouslyeffected [sic] or influenced the jury in determining their verdict against petit ioner.” (R., Doc. #12, “Report & Recommendation Dismissing Petitioner’s Petition forWrit of Habeas Corpus,” at 4.) The district court adopted the magistrate judg e’s recommendations without revision. (See R., Doc. #14, “Order Adopting Magistrate’s Report & Recommendation.”) Talbott now appeals.

II. In this habeas appeal, we must accept the district court’s factual findings unless they are clearly erroneous, but we review th e district court’s legal conclusions de novo. See Richmond v. Embry , 122 F.3d 866, 870 (10th Cir. 1997), cert. denied , __ S. Ct. __, 1998 WL 70556 (Feb. 23, 1998). In order to uphold the district court’s Rule 12(b)(6) dismissal , we must find that the petitioner can prove no set of facts in support of his claims that would entitle him- 8 -

to relief, accepting the factual allegations in his pleadings as true and construing them in the light most favorable to his claims. Se e Summun v. Callaghan , 130 F.3d 906, 913 (10th Cir. 1997). Talbott’s habeas petition asserted three constituti onal infirmities in his state conviction, all relating to the legality of the gov ernment’s conduct in obtaining his confession. (See R., Doc. #1, at 6(a).) The magistrate judge recom mended rejecting these claims on the grounds that there co uld be no prejudice from this government conduct, even if it did violate the Cons titution, because no evidence of Talbott’s confession was introduced during Talbo tt’s trial. (See R., Doc. #12, at 5.) Talbott has failed to contradict this findi ng with any evidence from the record of his trial. Furthermore, the Wyoming Supr eme Court found as a matter of fact that no evidence of Talbott’s confession wa s admitted during Talbott’s trial. See Talbott , 902 P.2d at 721. This factual finding by the state court is entitled to a presumption of correctness under 28 U .S.C. § 2254(d), and Talbott has failed to overcome that presumption. See Sena v. New Mexico State Prison , 109 F.3d 652, 655 (10th Cir. 1997) (“Factual determ inations by the state court are entitled to a presumption of correctness where thos e findings are evidenced by a written record and arrived at following a ‘full, fa ir and adequate hearing.’”) (quoting 28 U.S.C. § 2254(d)(6)). Contrary to Talbott’s implicit assertion in his hab eas petition, a8 In what may be an attempt to elaborate on this argu ment, Talbott asserts in

his appellate brief that the prosecutor’s reference s to his confession during the government’s opening statement transformed the exis tence of his confession into an element of the crime: “The State, through the p rosecutor, within his opening statement, promised the court and the jury that he would prove the State’s case against appellant by showing them appellant’s own c onfession, then chose not to enter this confession into evidence. Thus, failure to prove all the elements of the crime charged!” (See Aplt. Br., at 10.) However, we will not address Talbott’s novel -- to say the least -- argument because Talbott failed to raise this contention bef ore the district court. See Walker v. Mathers , 959 F.2d 894, 896 (10th Cir. 1992) (holding that as a general rule the court will not consider an issue raised onappeal that was not raised below).

9 Whether the prosecutor’s opening remarks in Talbott ’s trial were proper (continued...) - 9 - prosecutor’s reference to a confession in an openin g statement does not constitute “use” of the confession for purposes of obtaining aconviction at trial. 8 As the trial court instructed the jury, both orally and inwriting, a prosecutor’s opening statement is not to be treated as evidence. See Talbot , 902 P.2d at 722. The opening statement is useful only in the sense that it provides the jury with a preview of the evidence that later may be “used” fo r purposes of guilt or innocence. Only the evidence actually admitted at a trial has been “used” by the jury. The question of whether the prosecutor’s remarks inTalbott’s trial were proper, when the prosecutor later failed to introdu ce the confession, is quite a different matter from whether such comments constituted evidence for the jury, and we make no comment on the propriety of these re marks. 9The resolution of9 (...continued)

involves an analysis of the legal standards for pro secutorial misconduct that Talbott has utterly failed to raise in either his h abeas petition or his brief on appeal. See Whitney v. New Mexico , 113 F.3d 1170, 1173-74 (10th Cir. 1997) (holding that although the court must construe a pr o se litigant’s pleadings liberally, the court “will not supply additional fa ctual allegations to round out a plaintiff’s complaint or construct a legal theory o n a plaintiff’s behalf”). - 10 - Talbott’s habeas petition requires only that we det ermine whether his confession was “used” in his state trial. We have found no in dication in our record that the confession was in fact “used” in any evidentiary se nse, and thus, the district court did not clearly err in dismissing Talbott’s habeas claims. As a result, we AFFIRM the judgment of the district court.

The mandate shall issue forthwith.
ENTERED FOR THE COURT

David M. Ebel Circuit Judge