UNITED STATES COURT OF APPEALS TENTH CIRCUIT

ROBERT E. BROMLEY, Petitioner - Appellant,

v. GREGORY A. PHILLIPS, Attorney General of the State of Wyoming, Respondent - Appellee. No. 13-8018 (D.C. No. 2:08- CV-00031-CAB) (D. Wyo.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before LUCERO , McKAY , and MURPHY , Circuit Judges.

Robert Bromley requests a certificate of appealability (“C OA”) to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas petition. We deny a COA and dismiss the appeal.
I Bromley was convicted in Wyoming st ate court of delivery of a controlled substance, possession of a cont rolled substance, and possession with intent to deliver a

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### July 10, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - controlled substance. He filed a direct a ppeal in the Wyoming Supreme Court, which affirmed his convictions and sentence. Brom ley then filed a § 2254 petition in federal district court asserting three claims: (1) violation of due proc ess; (2) ineffective assistance of trial counsel; and (3) ineffective a ssistance of appellate co unsel. The district court stayed proceedings to allow Bromley an opportunity to exhaust claims two and three. Bromley filed a petition for post-convi ction relief in state district court raising these two claims. The state court denied his petition, and the Wyoming Supreme Court denied review. Bromley then returned to federal district court, which granted the government’s motion to dismiss claim one as procedurally barred and granted summary judgment in favor of the government on claims two and three. The district court denied a COA. Bromley now seeks a COA from this court.
II A petitioner may not appeal the denial of habeas relief under § 2254 without a COA. § 2253(c)(1). We will issue a COA “onl y if the applicant has made a substantial showing of the denial of a constitutional right. ” § 2253(c)(2). To sa tisfy this standard, Bromley must demonstrate “that reasonable ju rists could debate whether (or, for that matter, agree that) the petition s hould have been reso lved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted).
A The district court conclude d that Bromley’s first claim is procedurally barred. A- 3 - § 2254 petitioner may not obtain relief in federal court unless he “has exhausted the remedies available in the courts of th e State.” § 2254(b)(1 )(A). The exhaustion requirement obliges a petitioner to “fairly pres ent[]” his federal constitutional claim to the state court. Bland v. Sirmons, 459 F.3d 999, 1011 (1 0th Cir. 2006) (quotation omitted). Fair presentation “requires more than presen ting all the facts necessary to support the federal claim to the state court or articulati ng a somewhat similar state-law claim.” Id. (quotation omitted). “Fair presentation means that the petitioner has raised the substance of the federal claim in state court.” Id. (quotation omitted). We agree with the district court that Br omley did not fairly present his due process claim to the state courts. On direct appeal, Bromley argued that the trial court erred in admitting certain evidence of uncharged misc onduct in violation of Wyo. R. Evid. 404(b). However, Bromley did not suggest that this claimed evidentiary error violated his federal constitutional rights. He did not use the words “due process” or discuss the elements of a due process claim. Although Bromley made two stray references to the denial of a “fair trial,” these references were made in the context of his state law claim. The Wyoming Supreme Court, in its detailed analysis of Bromley’s evidentiary error allegation, did not unde rstand him to be raising a due proc ess claim. Bromley’s failure to discuss due process with respect to the 404(b ) issue is particularly notable because he explicitly raised the due proce ss issue elsewhere in his briefing. See Duncan v. Henry, 513 U.S. 364, 366 (1995) (failu re to raise due process claim “is especially pronounced in that respondent did specifically raise a due process objection before the state court based- 4 - on a different claim”). And because Bromley is now proce durally barred from raising his due process claim in state court, see Wyo. Stat. § 7-14-103(a)(i), the district court properly dismissed it with prejudice.
B Bromley’s ineffective assistance of couns el claims were presented to and denied by the Wyoming state courts. To prevail on these claims, Bromley must show that the state courts’ adjudication either “resulted in a decision that was based on an unreasonable determination of the facts in light of the ev idence presented” or was “contrary to, or involved an unreasonable app lication of, clearly establishe d Federal law.” § 2254(d)(1), (2). A petitioner claiming ineffective assist ance of counsel must demonstrate “that counsel made errors so serious that c ounsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amen dment” and that “there is a reasonable probability that, but fo r counsel’s unprofessional errors , the result of the proceeding would have been different.” Strickland v. Wa shington, 466 U.S. 668, 687, 694 (1984). Bromley first argues that his trial coun sel was ineffective for failing to crossexamine a government witness as to allege d inconsistencies between her trial testimony and her prior statements to police. Bromley notes that this witness: (1) testified that she purchased methamphetamine from Bromley on June 9, 2004, but had previously identified the date as June 10; (2) testified th at she attempted to purchase half a gram of methamphetamine from Bromley for $60, but pr eviously stated she purchased one gram for $100; (3) testified that Bromley ke pt methamphetamine in a fanny pack but- 5 - previously stated that it was presented to her in a small cl ear jeweler-type bag; and (4) testified that she was twenty-five years old and had known Bromley since she was seventeen, but previously stat ed that she had known Bromle y for about four years. Bromley was charged with delivering me thamphetamine to this witness “on or about” June 9, and thus any confusion as to the specific date would be immaterial. Similarly, the witness’ statements regard ing the length of time she knew Bromley were barely relevant. The Wyoming courts’ conc lusion that Bromley has not shown prejudice as to these issues is entirely reasonable. We reach the same conclusion as to th e inconsistent statements regarding the amount of methamphetamine the witness sought to purchase. Trial counsel effectively undermined the credibility of this witness on cross-examina tion, eliciting an admission that the witness was “delusional at the time” as a result of her methamphetamine use and provoking the witness to provide contradictor y testimony on collateral issues. The state court reasonably concluded that the marg inal decrease in cr edibility that crossexamination on this issue woul d have provided would not ha ve affected the outcome of the proceeding. Further, the witness at i ssue was picked up near Bromley’s home under the influence of methamphetamine and identif ied a fanny pack in which Bromley kept methamphetamine and bundles of cash in $500 increments—details confirmed by a search of Bromley’s home just a few days late r. Thus, we conclude that Bromley has not shown prejudice as to these stat ements. We also agree with the state courts’ conclusion that the witness’ statements- 6 - regarding the location from which Bromley produced the methamphetamine were not inconsistent. At trial, the witness testifie d that Bromley “loaded a bowl” for her, but was not asked about the physical location from which Bromley produced the methamphetamine. The witness identified a fanny pack in which Bromley kept methamphetamine and cash, but this identific ation is not inconsistent with her prior statement that Bromley produced methamphetami ne in a small plastic bag on the night in question. Counsel was not ineffective for fa iling to raise this claimed inconsistency. Bromley also argues that his trial counse l was ineffective for failing to adequately investigate witnesses and for failing to adequately communi cate with him. However, Bromley does not specifically explain how these alleged failures caused him prejudice and thus does not state an ineffective assistan ce claim. See United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994 ) (ineffective assistance clai m fails “where [petitioner’s] allegations are merely conclusory in nature and without supporting factual averments”). 1 And we agree with the district court that Bromley has not demonstrated that the cumulative effect of his counsel’s claimed errors caused prejudice. See Hooper v. Mullin, 314 F.3d 1162, 1178 (10th Cir. 2002) (cumul ative error standard). Finally, Bromley argues that his appella te counsel was ineffective for failing to argue trial counsel’s ineffectiveness. Beca use we conclude that trial counsel was not

1 Bromley does not claim a “complete breakdown in communication” with his attorney, which can give rise to a presump tion of ineffectiveness. See Romero v. Furlong, 215 F.3d 1107, 11 11 (10th Cir. 2000).- 7 - ineffective, this clai m also fails. See United States v. Cook, 45 F.3d 388, 392-93 (10th Cir. 1995) (“When a defendant alleges hi s appellate counsel rendered ineffective assistance by failing to raise an issue on app eal, we examine the merits of the omitted issue. If the omitted issue is without merit, counsel’s failure to raise it does not constitute constitutionally ineffective assistance of counsel.” (quotation and citation omitted)).
III
We DENY Bromley’s request for a COA and DISMISS the appeal. Entered for the Court

Carlos F. Lucero Circuit Judge