UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

JONATHON KENT MOSER, 

 Petitioner - Appellant, 

v. 

WYOMING ATTORNEY GENERAL, 

 Respondent - Appellee. 

No. 21-8094 

(D.C. No. 2:19-CV-00187-ABJ) 

(D. Wyo.) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

_________________________________ 

Before HARTZ, HOLMES, and McHUGH, Circuit Judges. 

_________________________________ 

Jonathon Kent Moser, a Wyoming state prisoner proceeding pro se, seeks a 

certificate of appealability (COA) to challenge the district court’s dismissal of his 

application for relief under 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (requiring a 

COA to appeal “the final order in a habeas corpus proceeding in which the detention 

complained of arises out of process issued by a State court”). We deny Mr. Moser’s 

request for a COA and dismiss this matter. 

*

 This order is not binding precedent except under the doctrines of law of the case, 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 

September 6, 2022

Christopher M. Wolpert 

Clerk of Court

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I. BACKGROUND

A. State court proceedings 

A jury convicted Mr. Moser in Carbon County, Wyoming, on one count of sexual 

assault of a minor in the first degree and three counts of sexual assault of a minor in the 

second degree. The counts arose from Mr. Moser’s conduct with two female students at 

the Rawlins Middle School, where he worked. One of the victims, A.C., testified that 

Mr. Moser rubbed her leg and touched her hands on one occasion and had intercourse 

with her on another occasion. The other victim, M.G., testified that Mr. Moser touched 

her breasts and vagina over her clothing. Under Wyoming Rule of Evidence 404(b),1

 the 

trial court allowed testimony by four female witnesses (the Middle School witnesses), 

who described being touched by Mr. Moser on their buttocks and upper thighs while 

attending Rawlins Middle School, and by three other female witnesses (the Converse 

County witnesses), who described being sexually assaulted by him when they were 

students at a high school in Converse County, where he worked after Rawlins Middle 

School. 

1

 Wyoming Rule of Evidence 404(b) provides: 

Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts 

is not admissible to prove the character of a person in order to show that he 

acted in conformity therewith. It may, however, be admissible for other 

purposes, such as proof of motive, opportunity, intent, preparation, plan, 

knowledge, identity, or absence of mistake or accident, provided that upon 

request by the accused, the prosecution in a criminal case shall provide 

reasonable notice in advance of trial, or during trial if the court excuses 

pretrial notice on good cause shown, of the general nature of any such 

evidence it intends to introduce at trial. 

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The Wyoming Supreme Court affirmed. See Moser v. State, 409 P.3d 1236, 

1243–51 (Wyo. 2018). Mr. Moser filed a petition for postconviction relief raising three 

claims of ineffective assistance of appellate counsel. The postconviction court dismissed 

the petition, concluding that the claims were procedurally barred. The Wyoming 

Supreme Court summarily denied Mr. Moser’s Petition for Writ of Review. 

B. Federal district-court proceedings 

 In his § 2254 application Mr. Moser advanced three grounds for relief. The first 

and third grounds asserted ineffective assistance of appellate counsel for failing to 

challenge the admission of the Converse County witnesses’ testimony and a limitation on 

the cross-examination of A.C. In ground two Mr. Moser argued that the cumulative 

nature of the Rule 404(b) witnesses’ testimony violated his Fourteenth Amendment 

due-process rights. 

The State filed a motion to dismiss the petition. The district court granted the 

State’s motion, dismissed the petition with prejudice, and denied a COA. The court ruled 

that grounds one and three were procedurally barred in federal court based on the 

postconviction court’s finding that the corresponding claims were procedurally defaulted 

in state court, and that Mr. Moser had not shown his appellate counsel had been 

constitutionally ineffective regarding those claims so he could not demonstrate cause and 

prejudice to overcome the bar. As for ground two’s due-process claim, the court held 

that it amounted to a state-law Rule 404(b) claim not cognizable in habeas. 

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II. COA STANDARD

We will issue a COA “only if the applicant has made a substantial showing of the 

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires the 

applicant to demonstrate that “reasonable jurists would find the district court’s 

assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 

529 U.S. 473, 484 (2000). For claims the district court denied on a procedural ground 

without reaching the merits, the applicant must also show that the district court’s 

procedural ruling is debatable. Id.

III. ANALYSIS

A. Grounds one and three 

Mr. Moser does not take issue with the district court’s application of procedural 

bar to grounds one and three. Instead, he argues the merits of those grounds. But we do 

not address the merits of a claim that was defaulted in state court on an independent and 

adequate state procedural ground unless the petitioner can show cause and prejudice for 

the default or that a fundamental miscarriage of justice will result from a failure to 

consider the claim. See Thacker v. Workman, 678 F.3d 820, 835 (10th Cir. 2012). We 

construe his arguments concerning appellate counsel’s ineffectiveness as a challenge to 

the district court’s determination that he failed to demonstrate cause and prejudice to 

overcome the procedural bar because “an attorney’s error can constitute cause to excuse a 

procedural default if it satisfies both prongs of the test for [ineffective assistance of 

counsel],” Davis v. Sharp, 943 F.3d 1290, 1298 (10th Cir. 2019). The two prongs are 

(1) deficient performance, which occurs when “counsel’s representation fell below an 

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objective standard of reasonableness,” and (2) resulting prejudice, which exists if “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, 688, 

694 (1984). 

1. Ground one

 On ground one the district court determined that Mr. Moser had not shown that 

appellate counsel would have been able to persuade the Wyoming Supreme Court that the 

trial court abused its discretion in allowing the Rule 404(b) testimony of the three 

Converse County witnesses. Mr. Moser has not shown that reasonable jurists would 

debate the district court’s resolution of this issue. He points to the Wyoming Supreme 

Court’s comment that “the prejudicial effect of [the four Middle School witnesses’] 

testimony challenged on appeal was likely negligible” but, “[i]n terms of prejudice,” the 

conduct testified to by the three Converse County witnesses “was much more 

reprehensible than the uncharged misconduct testimony of [the four Middle School 

witnesses].” Moser, 409 P.3d at 1248 n.5. But the relative reprehensibility of the two 

sets of testimony is not dispositive. In concluding that admission of the Middle School 

witnesses’ testimony was not unfairly prejudicial, the Wyoming Supreme Court focused 

on the trial court’s observation that the conduct to which those “witnesses testified was 

not more serious or reprehensible than the charged conduct.” Id. at 1248 (emphasis 

added). Similarly, the conduct described in the testimony by the Converse County 

witnesses was not more serious or reprehensible than the conduct Mr. Moser was charged 

with, which included intercourse with A.C. and touching M.G.’s breast. In light of the 

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thorough, well-reasoned opinion of the Wyoming Supreme Court explaining why the 

state trial court had not abused its discretion in admitting the testimony by the Middle 

School witnesses, we do not think that reasonable jurists could debate whether the 

Wyoming Supreme Court would have determined that the trial court abused its discretion 

by admitting the Converse County witnesses’ testimony. We therefore deny a COA on 

ground one.2

2. Ground three

 Ground three concerned defense counsel’s request to cross-examine A.C. about 

her testimony that Mr. Moser had intercourse with her and that she waited a year before 

reporting it because she was afraid. Defense counsel sought to impeach her by eliciting 

testimony about her prompt reporting of a sexual assault in an unrelated case to show she 

was not afraid of law enforcement. The trial court’s sole restriction on cross-examination 

was that defense counsel could not elicit that A.C. had been the victim of a prior sexual 

assault. 

In denying relief the federal district court explained that the only “fact omitted 

from the cross-examination was A.C.’s status as a prior sexual assault victim” and 

defense counsel was able to elicit “substantially the same testimony on cross-examination 

2

 Mr. Moser also argues that because he was acquitted of the conduct about which 

the Converse County witnesses testified, their testimony could not provide “proof of 

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake 

or accident,” Wyo. R. Evid. 404(b). But Mr. Moser acknowledges that he was acquitted 

on those charges more than a year after the Carbon County trial concluded. Hence, the 

acquittal has no bearing on the admissibility of the testimony at the time of the Carbon 

County trial. 

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that Mr. Moser claims was necessary to impeach the witness,” namely, that A.C. “ had 

talked to law enforcement in the past, she was not afraid of law enforcement, she knew 

law enforcement would protect her, and she knew Mr. Moser would likely be arrested if 

she reported a sexual assault.” R., Vol. I at 57. Because the claim lacked merit, the court 

concluded that Mr. Moser could not show ineffective assistance of appellate counsel and 

therefore could not establish cause and prejudice to overcome the procedural bar. 

 Mr. Moser has not shown that reasonable jurists could debate the correctness of 

the district court’s conclusion that the prohibition on referring to A.C.’s “status as a 

victim” in the other case, R., Vol. II at 466:4, did not prevent Mr. Moser from presenting 

a complete defense, particularly in light of A.C.’s repeated insistence that she delayed 

reporting because she was afraid of Mr. Moser, not law enforcement, and her testimony 

that her continued delay in reporting after Mr. Moser left the middle school was because 

she was “afraid of what everyone would think of me if I did [report],” id. at 548:25 to 

549:1. We deny a COA on ground three. 

B. Ground two

In denying relief on the due-process claim, the district court rejected Mr. Moser’s 

argument that the trial court placed no restrictions on the jury’s consideration of the 

Rule 404(b) witnesses’ testimony, pointing out that the trial court gave a detailed limiting 

instruction before each such witness. The instruction stated that the jury could not 

consider the evidence to suggest Mr. Moser had a propensity or was predisposed to 

commit the crimes he was charged with or as evidence of his guilt for those charged 

crimes. The district court concluded that because the record did not support Mr. Moser’s 

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constitutional claim, the claim was merely a complaint that the trial court wrongly 

decided an issue of state evidence law that was not cognizable in habeas. 

In his COA application Mr. Moser argues that he was prejudiced by the admission 

of testimony by one of the Converse County witnesses because it exceeded the scope of 

the Rule 404(b) notice. But this argument is not preserved because he did not raise it in 

his § 2254 application. See Heard v. Addison, 728 F.3d 1170, 1175 (10th Cir. 2013). 

Accordingly, we limit our COA consideration to his argument that the admission of the 

Rule 404(b) witnesses’ testimony violated due process. He can establish a violation of 

due process only if the alleged error caused his trial to be fundamentally unfair. See 

Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir. 2002) (“We may not provide habeas 

corpus relief on the basis of state court evidentiary rulings unless they rendered the trial 

so fundamentally unfair that a denial of constitutional rights results.” (internal quotation 

marks omitted)). This, he has failed to do. He has not shown that reasonable jurists 

could debate the district court’s resolution of his due-process issue. We therefore deny a 

COA on ground two. 

IV. CONCLUSION

 We deny a certificate of appealability and dismiss this matter. 

Entered for the Court 

Harris L Hartz 

Circuit Judge 

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