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 CERTIFIC ATE 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 unde r 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 issu ed 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* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Appellate Case: 21-8094 Document: 010110734010 Date Filed: 09/06/2022 Page: 12 I. BACKGROUND A. State court proceedings A jury convicted Mr. Moser in Carbon County, Wyomi ng, on one count of sexual assault of a minor in the first degree and thre e counts of sexual assa ult of a minor in the second degree. The counts arose from Mr. Mose r’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 Wyom ing Rule of Evidence 404(b), 1 the trial court allowed testimony by four female witnesses (the Middle School witnesses), who described being t ouched by Mr. Moser on their but tocks and upper thighs while attending Rawlins Middle School, and by thr ee other female witnesses (the Converse County witnesses), who described being sexu ally assaulted by him when they were students at a high school in Converse Coun ty, 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, o pportunity, intent, preparation, plan, knowledge, identity, or ab sence of mistake or accident, provided that upon request by the accused, the prosecutio n in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good caus e shown, of the general nature of any such evidence it intends to introduce at trial. Appellate Case: 21-8094 Document: 010110734010 Date Filed: 09/06/2022 Page: 23 The Wyoming Supreme Court affirmed. See Moser v. State , 409 P.3d 1236, 1243–51 (Wyo. 2018). Mr. Moser filed a pe tition 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 assi stance of appellate counsel for failing to challenge the admission of the Converse Co unty 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’ te stimony violated his Fourteenth Amendment due-process rights. The State filed a motion to dismiss the pe tition. The district court granted the State’s motion, dismissed the petition with prej udice, and denied a CO A. The court ruled that grounds one and three were procedura lly barred in federal court based on the postconviction court’s finding that the correspon ding claims were procedurally defaulted in state court, and that Mr. Moser had not shown his appellate counsel had been constitutionally ineffective regarding those clai ms so he could not demonstrate cause and prejudice to overcome the bar. As for grou nd two’s due-process claim, the court held that it amounted to a state-law Rule 404(b) claim not cognizable in habeas. Appellate Case: 21-8094 Document: 010110734010 Date Filed: 09/06/2022 Page: 34 II. COA STANDARD We will issue a COA “only if the applican t 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). Fo r claims the district court de nied on a procedural ground without reaching the merits, th e 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 dist rict court’s application of procedural bar to grounds one and three. Instead, he argu es the merits of those grounds. But we do not address the merits of a claim that was de faulted in state court on an independent and adequate state procedural ground unless th e petitioner can show cause and prejudice for the default or that a fundamental miscarriag e 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 concerni ng appellate counsel’s ineff ectiveness as a challenge to the district court’s determination that he failed to demonstrate cause and prejudice to overcome the procedural bar because “an attorn ey’s error can constitute cause to excuse a procedural default if it satisfi es both prongs of the test for [ineffective assistance of counsel],” Davis v. Sharp , 943 F.3d 1290, 1298 (10th Ci r. 2019). The two prongs are (1) deficient performance, which occurs wh en “counsel’s representation fell below an Appellate Case: 21-8094 Document: 010110734010 Date Filed: 09/06/2022 Page: 45 objective standard of reasonableness,” and (2) resulting prejudice, which exists if “there is a reasonable probability that, but for counse l’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 Su preme 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 th at 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 neglig ible” but, “[i]n terms of prejudice,” the conduct testified to by th e three Converse County w itnesses “was much more reprehensible than the uncharged misconduc t 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 c oncluding that admission of the Middle School witnesses’ testimony was not unfairly prej udicial, the Wyoming Supreme Court focused on the trial court’s observation that the cond uct 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 reprehensi ble than the conduct Mr. Moser was charged with, which included intercourse with A.C. an d touching M.G.’s breast. In light of the Appellate Case: 21-8094 Document: 010110734010 Date Filed: 09/06/2022 Page: 56 thorough, well-reasoned opinion of the Wy oming Supreme Court explaining why the state trial court had not abus ed its discretion in admitting the testimony by the Middle School witnesses, we do not think that re asonable jurists could debate whether the Wyoming Supreme Court would ha ve determined that the tria l 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 de fense counsel’s request to cross-examine A.C. about her testimony that Mr. Moser had intercourse w ith 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 reporti ng of a sexual assault in an unrelated case to show she was not afraid of law enforcement. The tria l court’s sole restric tion 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 stat us as a prior sexual assault victim” and defense counsel was able to elicit “substan tially the same testimony on cross-examination

2 Mr. Moser also argues that because he was acquitted of the conduct about which the Converse County w itnesses testified, their testimon y 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. Appellate Case: 21-8094 Document: 010110734010 Date Filed: 09/06/2022 Page: 67 that Mr. Moser claims was necessary to impe ach the witness,” namely, that A.C. “ had talked to law enforcem ent in the past, she was not afra id of law enforcement, she knew law enforcement would protect her, and she kn ew 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 ine ffective assistance of appellate counsel and therefore could not establish cause and pr ejudice 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 proh ibition 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. Mose r, not law enforcement, and her testimony that her continued delay in re porting after Mr. Moser left the middle school was because she was “afraid of what everyone wo uld 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, th e district court rejected Mr. Moser’s argument that the trial court placed no rest rictions on the jury’s consideration of the Rule 404(b) witnesses’ testim ony, pointing out that the tria l court gave a detailed limiting instruction before each such w itness. The instruction stat ed that the jury could not consider the evidence to suggest Mr. Moser had a prop ensity or was predisposed to commit the crimes he was char ged with or as evidence of his guilt for those charged crimes. The district court concluded that be cause the record did not support Mr. Moser’s Appellate Case: 21-8094 Document: 010110734010 Date Filed: 09/06/2022 Page: 78 constitutional claim, the claim was merely a complaint that the trial court wrongly decided an issue of stat e 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 th is 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 esta blish a violation of due process only if the alleged error cause d his trial to be fundamentally unfair. See Duckett v. Mullin , 306 F.3d 982, 999 (10th Cir. 2 002) (“We may not provide habeas corpus relief on the basis of state court eviden tiary rulings unless they rendered the trial so fundamentally unfair that a denial of c onstitutional rights results.” (internal quotation marks omitted)). This, he has failed to do. He has not shown that reasonable jurists could debate the district cour t’s resolution of his due-process issue. We therefore deny a COA on ground two.
IV. CONCLUSION We deny a certificate of appeal ability and dismiss this matter.

Entered for the Court

Harris L Hartz Circuit Judge Appellate Case: 21-8094 Document: 010110734010 Date Filed: 09/06/2022 Page: 8