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

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument. This order and judgment is

not binding precedent, except under the doctrines of law of the case, res judicata,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.

1This habeas petition is governed by the “old” provisions of the habeas

statute at 28 U.S.C. § 2254 (1994), i.e., the version prior to its amendment in

1996 by the Antiterrorism and Effective Death Penalty 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 State
1

(...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 hereby grant Talbott a certificate of

probable cause for this appeal under 28 U.S.C. § 2253 (1994).

- 2 -

Penitentiary challenges his 20- to 30-year sentence for second-degree murder on

the grounds that his conviction was obtained through 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 convicted 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 statements he had made to police

during an interview the day before at a motel. (See R., Doc. #1, “Petition for a

Writ of Habeas Corpus,” at 6.) Talbott contends that all of these statements were

obtained in violation of his right to counsel because Talbott initially told police

during his first contact with them -- one day before the police station

interrogation -- that he wished to deal with investigators “only” through his
2

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 communication, 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 questioning by law enforcement

officers must cease until an attorney is present.”).

3Our record in this appeal is not entirely clear, but it appears that although

the state trial court allowed the admission of Talbott’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 basis for the trial court’s

suppression of Talbott’s statements at the motel.

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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),2

 that absent

a clear and unambiguous waiver of the right to counsel, 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 rejected Talbott’s motion to

suppress the statements he made during his police station interview, ruling that

these statements were not fruits of any constitutional 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 prosecution did not seek to

introduce any evidence of Talbott’s incriminating statements during the

government’s case-in-chief. See id. Indeed, when the prosecution sought to
4Our record does not include a transcript of the prosecutor’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 you

that Betty Talbott was murdered by Tim Talbott, her

husband -- that man seated right there on the corner --

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 forehead to

shut her up, as he put it. As he held the pistol there with

his finger on the trigger, he will claim that the pistol

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 been 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 opening statement, the prosecutor

repeatedly stressed that the evidence of the defendant’s guilt would be provided

by the defendant’s own words.4 See Talbott, 902 P.2d at 721-22. Talbott’s
4

(...continued)

how for the next 12 hours after the shooting the

defendant left Betty Talbott’s lifeless body seated right

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.

5The three issues were:

1) The trial court erred in failing to suppress all of Talbott’s statements to

police because of violations of Miranda and Edwards.

2) The trial court erred in failing to find that the Talbott’s statements

during the police station interview were fruits of the poisonous tree

stemming from the unconstitutional interrogation the day before.

3) The trial court erred in rejecting Talbott’s proffered jury instruction on

the voluntariness of a confession.

(continued...)

- 5 -

counsel did not object to these references to Talbott’s “confession,” and at no

time did Talbott’s counsel ask for any specific limiting instruction with respect to

these comments. See id. at 722. The trial court provided a general limiting

instruction before opening statements were given, cautioning jurors that

statements by lawyers could not be considered evidence, and this instruction was

repeated in the written instructions given to the jury 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 obtained the
5

(...continued)

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

6The record before us does not indicate why the Wyoming 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 explicitly 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 petition” 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 claims. See Odum v. Boone, 62

F.3d 327, 332 n.2 (10th Cir. 1995) (holding that the exhaustion doctrine in habeas

proceedings is not jurisdictional and may be waived by the state).

- 6 -

confession in violation of Talbott’s right to counsel, he suffered no prejudice

from this violation because no evidence of the confession 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.6 See id. The court held that the prosecutor’s comments did not

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 court’s instructions to the jury. 

See id. at 722.

Talbott filed this habeas petition on January 17, 1996, contending that his

conviction was “obtained by use of illegally obtained statements (confession), in
7Talbott’s habeas petition states that he intends for 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 considered Talbott’s habeas

petition recommended that the district court dismiss 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 injuriously effected [sic] or influenced

the jury in determining their verdict against petitioner.” (R., Doc. #12, “Report &

Recommendation Dismissing Petitioner’s Petition for Writ of Habeas Corpus,” at

4.) The district court adopted the magistrate judge’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 the 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. See Summun v. Callaghan, 130

F.3d 906, 913 (10th Cir. 1997). 

Talbott’s habeas petition asserted three constitutional infirmities in his state

conviction, all relating to the legality of the government’s conduct in obtaining

his confession. (See R., Doc. #1, at 6(a).) The magistrate judge recommended

rejecting these claims on the grounds that there could be no prejudice from this

government conduct, even if it did violate the Constitution, because no evidence

of Talbott’s confession was introduced during Talbott’s trial. (See R., Doc. #12,

at 5.) Talbott has failed to contradict this finding with any evidence from the

record of his trial. Furthermore, the Wyoming Supreme Court found as a matter

of fact that no evidence of Talbott’s confession was 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 determinations by the state court are

entitled to a presumption of correctness where those findings are evidenced by a

written record and arrived at following a ‘full, fair and adequate hearing.’”)

(quoting 28 U.S.C. § 2254(d)(6)).

Contrary to Talbott’s implicit assertion in his habeas petition, a
8

In what may be an attempt to elaborate on this argument, Talbott asserts in

his appellate brief that the prosecutor’s references to his confession during the

government’s opening statement transformed the existence of his confession into

an element of the crime: “The State, through the prosecutor, 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 confession, 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 before 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 on appeal that was not raised

below).

9Whether the prosecutor’s opening remarks in Talbott’s trial were proper

(continued...)

- 9 -

prosecutor’s reference to a confession in an opening statement does not constitute

“use” of the confession for purposes of obtaining a conviction at trial.8

 As the

trial court instructed the jury, both orally and in writing, 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” for 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 in Talbott’s trial were

proper, when the prosecutor later failed to introduce 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 remarks.9

 The resolution of
9

(...continued)

involves an analysis of the legal standards for prosecutorial misconduct that

Talbott has utterly failed to raise in either his habeas 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 pro se litigant’s pleadings

liberally, the court “will not supply additional factual allegations to round out a

plaintiff’s complaint or construct a legal theory on a plaintiff’s behalf”).

- 10 -

Talbott’s habeas petition requires only that we determine whether his confession

was “used” in his state trial. We have found no indication in our record that the

confession was in fact “used” in any evidentiary sense, 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