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 (“COA”) 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 state court of delivery of a controlled 

substance, possession of a controlled 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 This order is not binding precedent except under the doctrines of law of the case, 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
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controlled substance. He filed a direct appeal in the Wyoming Supreme Court, which 

affirmed his convictions and sentence. Bromley then filed a § 2254 petition in federal 

district court asserting three claims: (1) violation of due process; (2) ineffective 

assistance of trial counsel; and (3) ineffective assistance of appellate counsel. The district 

court stayed proceedings to allow Bromley an opportunity to exhaust claims two and 

three. Bromley filed a petition for post-conviction 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 “only if the applicant has made a substantial 

showing of the denial of a constitutional right.” § 2253(c)(2). To satisfy this standard, 

Bromley must demonstrate “that reasonable jurists could debate whether (or, for that 

matter, agree that) the petition should have been resolved 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 concluded that Bromley’s first claim is procedurally barred. A 
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§ 2254 petitioner may not obtain relief in federal court unless he “has exhausted the 

remedies available in the courts of the State.” § 2254(b)(1)(A). The exhaustion 

requirement obliges a petitioner to “fairly present[]” his federal constitutional claim to the 

state court. Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 2006) (quotation omitted). 

Fair presentation “requires more than presenting all the facts necessary to support the 

federal claim to the state court or articulating 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 Bromley 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 misconduct 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 understand him to be raising a due process claim. Bromley’s failure to 

discuss due process with respect to the 404(b) issue is particularly notable because he 

explicitly raised the due process issue elsewhere in his briefing. See Duncan v. Henry, 

513 U.S. 364, 366 (1995) (failure to raise due process claim “is especially pronounced in 

that respondent did specifically raise a due process objection before the state court based 
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on a different claim”). And because Bromley is now procedurally 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 counsel 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 evidence presented” or was “contrary to, or 

involved an unreasonable application of, clearly established Federal law.” § 2254(d)(1), 

(2). A petitioner claiming ineffective assistance of counsel must demonstrate “that 

counsel made errors so serious that counsel was not functioning as the ‘counsel’ 

guaranteed the defendant by the Sixth Amendment” and that “there is a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different.” Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). 

 Bromley first argues that his trial counsel was ineffective for failing to crossexamine a government witness as to alleged 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 that she attempted to purchase half a gram of 

methamphetamine from Bromley for $60, but previously stated she purchased one gram 

for $100; (3) testified that Bromley kept methamphetamine in a fanny pack but 
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previously stated that it was presented to her in a small clear jeweler-type bag; and (4) 

testified that she was twenty-five years old and had known Bromley since she was 

seventeen, but previously stated that she had known Bromley for about four years. 

 Bromley was charged with delivering methamphetamine to this witness “on or 

about” June 9, and thus any confusion as to the specific date would be immaterial. 

Similarly, the witness’ statements regarding the length of time she knew Bromley were 

barely relevant. The Wyoming courts’ conclusion that Bromley has not shown prejudice 

as to these issues is entirely reasonable. 

 We reach the same conclusion as to the inconsistent statements regarding the 

amount of methamphetamine the witness sought to purchase. Trial counsel effectively 

undermined the credibility of this witness on cross-examination, eliciting an admission 

that the witness was “delusional at the time” as a result of her methamphetamine use and 

provoking the witness to provide contradictory testimony on collateral issues. The state 

court reasonably concluded that the marginal decrease in credibility that crossexamination on this issue would have provided would not have affected the outcome of 

the proceeding. Further, the witness at issue was picked up near Bromley’s home under 

the influence of methamphetamine and identified 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 later. Thus, we conclude that Bromley has not 

shown prejudice as to these statements. 

 We also agree with the state courts’ conclusion that the witness’ statements 
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regarding the location from which Bromley produced the methamphetamine were not 

inconsistent. At trial, the witness testified 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 identification is not inconsistent with her prior 

statement that Bromley produced methamphetamine in a small plastic bag on the night in 

question. Counsel was not ineffective for failing to raise this claimed inconsistency. 

 Bromley also argues that his trial counsel was ineffective for failing to adequately 

investigate witnesses and for failing to adequately communicate with him. However, 

Bromley does not specifically explain how these alleged failures caused him prejudice 

and thus does not state an ineffective assistance claim. See United States v. Fisher, 38 

F.3d 1144, 1147 (10th Cir. 1994) (ineffective assistance claim 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) (cumulative error standard). 

 Finally, Bromley argues that his appellate counsel was ineffective for failing to 

argue trial counsel’s ineffectiveness. Because 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 presumption of ineffectiveness. See Romero v. 

Furlong, 215 F.3d 1107, 1111 (10th Cir. 2000). 
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ineffective, this claim also fails. See United States v. Cook, 45 F.3d 388, 392-93 (10th 

Cir. 1995) (“When a defendant alleges his appellate counsel rendered ineffective 

assistance by failing to raise an issue on appeal, 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