PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

STEVEN D. BONNEY, 

 Petitioner-Appellant, 

v. 

EDDIE WILSON, Warden, 

Wyoming State Penitentiary; 

ROBERT LAMPERT, Director, 

Wyoming Department of 

Corrections; PETER K. MICHAEL, 

Wyoming Attorney General, 

 Respondents-Appellees. 

No. 15-8010 

_________________________________ 

Appeal from the United States District Court 

for the District of Wyoming 

(D.C. No. 2:11-CV-00345-NDF)

_________________________________ 

Diane E. Courselle, Laramie, Wyoming, University of Wyoming College of Law, 

for Petitioner-Appellant. 

David L. Delicath, Deputy Attorney General, (Peter K. Michael, Attorney 

General, with him on the brief) Office of the Attorney General for the State of 

Wyoming, Cheyenne, Wyoming, for Respondents-Appellees. 

_________________________________ 

Before GORSUCH, BACHARACH, and McHUGH, Circuit Judges. 

_________________________________ 

BACHARACH, Circuit Judge. 

 _________________________________ 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 29, 2016 

Elisabeth A. Shumaker 

Clerk of Court
2 

 This appeal involves a habeas action brought by Mr. Steven Bonney. 

When Mr. Bonney was 17, five of his child relatives accused him of sexual 

abuse. Mr. Bonney entered into a plea agreement with the State of 

Wyoming and pleaded guilty to charges involving two of the children. The 

state district court accepted the plea, entering a judgment of conviction and 

sentencing Mr. Bonney to two consecutive terms of 15-20 years’ 

imprisonment (with the second term suspended in favor of probation for 15 

years). Mr. Bonney soon regretted his plea and sought post-conviction 

relief, arguing that his trial counsel had been ineffective. The state district 

court denied relief on some claims and granted summary judgment to the 

State on other claims. Mr. Bonney then brought this federal habeas action. 

The federal district court granted habeas relief, but we reversed.1

 On 

remand the district court granted summary judgment to the respondents, 

and Mr. Bonney appeals. We reverse in part and affirm in part. 

 

1

 In granting habeas relief, the district court held that Mr. Bonney’s 

attorney had provided ineffective assistance by failing to inform Mr. 

Bonney of a letter from one of the alleged victims (K.S.). We reversed, 

holding that the state court “reasonably could have concluded that defense 

counsel’s failure to disclose K.S.’s letter in a timely fashion was not 

sufficient to undermine confidence in the outcome of the prosecution and 

that a rational defendant would not have sought to withdraw his guilty plea 

despite K.S.’s partial recantation.” Bonney v. Wilson, 754 F.3d 872, 886 

(10th Cir. 2014) (emphasis in original). 
3 

I. Mr. Bonney did not commit a procedural default on his habeas 

claim involving trial counsel’s failure to adequately investigate 

the children’s accounts. 

 In the habeas petition, Mr. Bonney claimed in part that his trial 

counsel had failed to adequately investigate the children’s accounts. The 

state district court declined to consider the merits of this claim, reasoning 

that Mr. Bonney had not raised the claim through a direct appeal. As a 

result, the federal district court considered the habeas claim procedurally 

defaulted. 

 But a direct appeal would have required Mr. Bonney’s trial counsel 

to allege his own ineffectiveness, and the Wyoming courts have not 

evenhandedly required attorneys to raise their own ineffectiveness on 

direct appeal. For this reason, the procedural requirement, as applied by 

the state district court, did not constitute an adequate basis for procedural 

default. In these circumstances, the federal district court should have 

considered the merits of the habeas claim. 

A. We do not address issues defaulted in state court based on a 

state procedural ground that is independent and adequate. 

 On habeas review, we do not address issues that were decided in state 

court on an independent and adequate state procedural ground. English v. 

Cody, 146 F.3d 1257, 1259 (10th Cir. 1998). The issue here is whether the 
4 

state procedural ground is “adequate.”2

 A state procedural ground is 

adequate only if it has been applied “evenhandedly to all similar claims.” 

Hathorn v. Lovorn, 457 U.S. 255, 263 (1982). 

B. The state district court concluded that Mr. Bonney should 

have filed a direct appeal to assert this claim. 

 The state procedural ground at issue here is based on Wyo. Stat. Ann. 

§ 7-14-103(a)(i), which states that post-conviction relief is ordinarily 

unavailable if the claim could have been raised on direct appeal but wasn’t. 

This statute is implicated because Mr. Bonney did not file a direct appeal; 

he instead asserted this claim for the first time in a post-conviction 

application. The state district court disapproved of this tactic, concluding 

that Mr. Bonney could have raised the claim on direct appeal but had failed 

to do so. Thus, relying on Wyo. Stat. Ann. § 7-14-103(a)(i), the state 

district court granted summary judgment to the State on Mr. Bonney’s 

claim. 

C. We apply de novo review of the federal district court’s 

 ruling. 

 On habeas review, the federal district court concluded that the state 

procedural ground was adequate for purposes of procedural default. We 

review this conclusion de novo. See Anderson v. Att’y Gen., 342 F.3d 1140, 

 

2

 In his reply brief, Mr. Bonney also argues that the state procedural 

ground is not independent. We need not address this argument. 
5 

1143 (10th Cir. 2003) (“This court reviews de novo whether claims are 

procedurally barred.”). 

D. The respondents bore the burden of proving that the state 

procedural ground was adequate even though Mr. Bonney 

lacked separate appellate counsel. 

 In conducting this review, we note that the respondents bear the 

burden of proof because procedural default is an affirmative defense. 

Hooks v. Ward, 184 F.3d 1206, 1216-17 (10th Cir. 1999). Thus, the 

respondents had to prove in federal district court that the State of 

Wyoming had evenhandedly applied § 7-14-103(a)(i) to all similar claims. 

See Part I(A), above. 

E. The state procedural ground is inadequate here because 

Wyoming courts have not evenhandedly required trial 

attorneys to allege their own ineffectiveness in a direct 

appeal. 

 Mr. Bonney argues that the state procedural ground is not adequate 

because his only attorney during the period for an appeal was the attorney 

who had handled the trial. In Mr. Bonney’s view, Wyoming courts have not 

evenhandedly required trial attorneys to assert their own ineffectiveness in 

a direct appeal. We agree. 

 The Wyoming Supreme Court has considered it “questionable” for 

attorneys to allege their own ineffectiveness. Keats v. State, 115 P.3d 

1110, 1117 (Wyo. 2005). The court has also expressed skepticism about 

such an allegation when the defendant’s trial and appellate attorneys are 
6 

not independent from one another. Id. For example, in Keats v. State, the 

defendant’s appellate counsel considered herself a subordinate of the 

defendant’s trial counsel. Id. In light of this relationship between the 

attorneys, the Wyoming Supreme Court applied cases stating “that it is not 

appropriate or expected for one to raise one’s own ineffectiveness.” Id.3

 Against this backdrop, the respondents have not identified a single 

case in which Wyoming courts applied § 7-14-103(a)(i) when 

 the defendant’s appellate counsel also served as trial counsel or 

 the defendant’s only attorney during the appeal period also 

handled the trial. 

See Oral Arg. 31:41-32:03 (concession by the respondents that the 

Wyoming Supreme Court has never applied § 7-14-103(a)(i) when the same 

attorney represented the defendant at trial and in the direct appeal). Thus, 

§ 7-14-103(a)(i) cannot serve as an adequate basis for a procedural default. 

See Neill v. Gibson, 263 F.3d 1184, 1193 (10th Cir. 2001) (stating that 

Oklahoma’s “procedural bar . . . is not adequate to preclude habeas review 

of [the habeas petitioner’s] ineffective-assistance claim because the same 

attorney represented [the petitioner] both at trial and on direct appeal”); 

 

3

 Our circumstances differ because Mr. Bonney never filed a direct 

appeal. But the Wyoming Supreme Court applies § 7-14-103(a)(i) when the 

defendant bypasses a direct appeal to assert a claim for the first time in a 

post-conviction application. Hauck v. State, 162 P.3d 512, 515 (Wyo. 

2007). Thus, the federal district court applied § 7-14-103(a)(i), reasoning 

that Mr. Bonney’s attorney could have appealed based on ineffectiveness 

of trial counsel. 
7 

Walker v. Gibson, 228 F.3d 1217, 1231-32 (10th Cir. 2000) (“[T]he claim 

is not procedurally barred because [the habeas petitioner] had the same 

counsel at trial and on appeal.”).

 The respondents argue that in our unpublished opinion in Teniente v. 

Wyoming Attorney General, we held that the procedural requirements in 

§ 7-14-103(a)(i) are considered adequate for procedural default. 412 F. 

App’x 96 (10th Cir. 2011) (unpublished). Indeed, they ordinarily are. But 

Teniente involved claims of prosecutorial misconduct and evidentiary 

error, not ineffective assistance. 412 F. App’x at 101. As a result, we did 

not address the adequacy of the procedural requirements in § 7-14-

103(a)(i) when the habeas claim would involve an attorney’s allegation of 

his own ineffectiveness. See id. Thus, Teniente did not involve our issue.4

F. The alleged procedural default cannot be based on Mr. 

Bonney’s appeal waiver. 

In concluding that the habeas claim was procedurally defaulted, the 

federal district court pointed to Mr. Bonney’s waiver of his right to appeal. 

But for two reasons, the appeal waiver cannot serve as the basis for a 

procedural default: (1) the waiver was not invoked in state court, and (2) 

Wyoming courts have not evenhandedly enforced appeal waivers when 

defendants attribute their guilty pleas to ineffective legal representation. 

 

4

 Because Teniente was unpublished, it would not constitute precedent 

even if the opinion had addressed our issue. 10th Cir. R. 32.1(A). 
8 

 First, the state district court did not mention the appeal waiver. Even 

here, the respondents do not argue that the appeal waiver would support a 

procedural default. See, e.g., Appellees’ Resp. Br. at 13-15; Oral Arg. at 

24:47-24:54. That is understandable because § 7-14-103(a)(i) would not 

apply to an appeal waiver. This section expressly covers the failure to raise 

an argument in a direct appeal, but says nothing about the waiver of a right 

to appeal. Thus, in relying on § 7-14-103(a)(i), the state district court 

relied on the failure to assert the claim in a direct appeal, not Mr. 

Bonney’s waiver of his right to appeal. 

Second, Wyoming courts have not evenhandedly enforced appeal 

waivers to preclude consideration of ineffective assistance claims. 

Wyoming courts apply a three-part test to determine the enforceability of 

an appeal waiver: 

1. Does the appeal fall within the scope of the appeal waiver? 

2. Did the defendant knowingly and voluntarily waive appellate 

rights? 

3. Would enforcement result in a miscarriage of justice? 

Henry v. State, 362 P.3d 785, 789 (Wyo. 2015). In determining whether 

enforcement would result in a miscarriage of justice, Wyoming courts 

consider whether the defendant lacked effective assistance of counsel in 

negotiating the waiver. Id. at 790. 
9 

 Mr. Bonney’s appeal waiver was contained in his plea agreement. Mr. 

Bonney attributes that plea agreement to ineffective assistance, claiming 

that his attorney exaggerated the benefits of the agreement and 

underestimated the potential for an acquittal. The Wyoming Supreme Court 

has never addressed the validity of an appeal waiver that was allegedly the 

product of ineffective assistance. As a result, the respondents have not 

shown evenhanded enforcement of appeal waivers in similar circumstances. 

For both reasons, the procedural default cannot be based on Mr. 

Bonney’s appeal waiver. 

G. We must remand rather than consider the possibility of 

affirming on alternative grounds involving the merits. 

 Because the federal district court erred in applying procedural 

default, we must decide whether to consider the possibility of affirming on 

alternative grounds involving the merits. We have declined to affirm a 

grant of summary judgment on alternative grounds when doing so would be 

unfair to the nonmovant. See Tavery v. United States, 32 F.3d 1423, 1427 

n.5 (10th Cir. 1994). Affirmance on alternative grounds would be unfair 

here. 

Mr. Bonney, as the nonmovant opposing summary judgment, was 

obligated only to present evidence opposing the arguments made in the 
10 

respondents’ summary judgment motion. See id.5

 In federal district court, 

the respondents sought summary judgment on this claim based solely on 

procedural default; they did not argue in the alternative that the habeas 

claim would fail on the merits. As a result, Mr. Bonney had no reason to 

respond to the summary judgment motion with evidence supporting the 

merits of his habeas claim. Even now, the respondents do not defend the 

summary judgment ruling on the merits of the claim. In these 

circumstances, it would be unfair to affirm based on the merits. See id.

(“We feel it would be unfair to affirm the summary judgment against Ms. 

Tavery [on the basis of an] argument . . . not made below.”); see also Fed. 

R. Civ. P. 56(f), (f)(2) (permitting entry of summary judgment on “grounds 

not raised by a party” only after the adverse party has obtained “notice and 

a reasonable time to respond”). Thus, we decline to consider the possibility 

of affirming based on alternative grounds involving the merits. See Evers 

v. Regents of the Univ. of Colo., 509 F.3d 1304, 1309-10 (10th Cir. 2007) 

(stating that the Court of Appeals could not affirm a summary judgment 

 

5

 The federal district court has discretion whether to apply the Federal 

Rules of Civil Procedure in habeas cases. See Rule 12, Rules Governing 

Section 2254 Cases in the United States District Courts; see also Fed. R. 

Civ. P. 81(a)(4) (stating that in habeas cases, the applicability of the 

Federal Rules of Civil Procedure is governed by the Rules Governing 

Section 2254 Cases). In the summary judgment proceedings, the federal 

district court and the parties relied on Rule 56 of the Federal Rules of Civil 

Procedure. As a result, we apply our case law involving a party’s duty 

under Rule 56 to respond to the grounds raised in the summary judgment 

motion. 
11 

award on alternative grounds because the nonmoving party had no notice of 

the need to present argument and all his evidence on the issue). 

II. The federal district court properly rejected Mr. Bonney’s other 

habeas claims on substantive grounds. 

In claiming ineffective assistance, Mr. Bonney also complained about 

his attorney’s portrayal of the benefits from the plea agreement. On appeal, 

Mr. Bonney claims that his attorney exaggerated 

 the benefits from dismissal of one count (Count V), 

 the value of the prosecutor’s promise to make a favorable 

recommendation to a prosecutor in another county (Pueblo 

County) about the possible filing of additional charges, and 

 the significance of one child’s (P.M.’s) statement to 

prosecutors. 

 On these claims, the state district court granted an evidentiary 

hearing and 

 granted summary judgment to the State on the claim involving 

failure to seek dismissal of Count V, 

 granted summary judgment to the State on the claim involving 

exaggeration of the value of a recommendation not to pursue 

charges in Pueblo County, and 

 denied habeas relief on the claim involving exaggeration about 

P.M.’s interview with prosecutors. 

Mr. Bonney renewed these claims in the habeas petition, and the federal 

district court granted summary judgment to the respondents on each claim. 

We agree with these rulings. 
12 

A. Our review is limited under federal law.

 The threshold issue is our standard of review. Because the federal 

district court granted summary judgment, we apply de novo review. 

Timmons v. White, 314 F.3d 1229, 1232 (10th Cir. 2003). Thus, we must 

apply the standard that applied in federal district court. See Sperry v. 

McKune, 445 F.3d 1268, 1271 (10th Cir. 2006) (stating that in considering 

a summary judgment motion on a habeas claim, we “apply[] the same 

standards used by the district court”). 

 That standard had two components: 

 Federal Rule of Civil Procedure 56, which governs the award 

of summary judgment, and 

 28 U.S.C. § 2254(d), which governs the award of habeas relief. 

The federal district court applied both components when awarding 

summary judgment to the respondents. Thus, we must consider the 

interplay between 

 the standard for summary judgment in Federal Rule of Civil 

Procedure 56 and 

 the restrictions in 28 U.S.C. § 2254(d) for a grant of federal 

habeas relief. 

See Cummings v. Polk, 475 F.3d 230, 237 (4th Cir. 2007) (“We review de 

novo a district court’s award of summary judgment, applying [the 

Antiterrorism and Effective Death Penalty Act’s] deferential standard of 
13 

review to the state court’s adjudication of a petitioner’s claims on the 

merits.”). 

 The standard in federal district court was established in a federal 

statute, 28 U.S.C. § 2254(d). Under that statute, the federal district court 

cannot engage in de novo review of legal conclusions adjudicated on the 

merits in state court. See 28 U.S.C. § 2254(d). Instead, the scope of the 

federal district court’s review turns on whether the state court adjudicated 

the merits. See id.6

 The state district court rejected two of the constitutional claims by 

awarding summary judgment to the State, and these rulings constituted 

adjudications on the merits. See Goichman v. City of Aspen, 859 F.2d 

1466, 1471 n.13 (10th Cir. 1988) (“We recognize that summary judgment 

operates as an adjudication on the merits.”). As a result, the federal 

district court had to apply 28 U.S.C. § 2254(d)(1) on each of the three 

claims. This section allows consideration of the underlying habeas claim 

only if the state district court 

 acted contrary to a Supreme Court decision or 

 unreasonably applied a Supreme Court decision. 

 

6

 In post-conviction proceedings, the Wyoming Supreme Court denied 

certiorari. But there the court did not provide analysis. As a result, we 

review only the last reasoned court decision. Ylst v. Nunnemaker, 501 U.S. 

797, 803 (1991); see Brecheen v. Reynolds, 41 F.3d 1343, 1358 (10th Cir. 

1994) (“In practice, the look-through rule tells a federal habeas court to 

ignore the unexplained order and focus upon the last reasoned state court 

decision.”). 
14 

28 U.S.C. § 2254(d)(1).7

B. We apply a two-part test in addressing Mr. Bonney’s claim 

of ineffective assistance. 

In applying the standard under § 2254(d)(1),8

 we consider Mr. 

Bonney’s ineffectiveness claims under the two-part test in Strickland v. 

Washington, 466 U.S. 668 (1984). Under Strickland, Mr. Bonney had to 

show that 

 counsel’s performance was objectively unreasonable and 

 there was a reasonable probability that but for counsel’s 

deficient performance, the result of the proceeding would have 

been different. 

466 U.S. at 687-88, 694. To show prejudice (the second prong) in the 

context of a plea agreement, Mr. Bonney had to “convince the court that a 

decision to reject the plea bargain would have been rational under the 

circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372 (2010); accord 

Bonney v. Wilson, 754 F.3d 872, 884 (10th Cir. 2014). In applying this 

 

7

 Rule 56 and 28 U.S.C. § 2254(d) differ in how the federal district 

court is to view the evidence. Under Rule 56, the federal district court 

must view the evidence in the light most favorable to the nonmovant (Mr. 

Bonney). Bertsch v. Overstock.com, 684 F.3d 1023, 1027 (10th Cir. 2012). 

Under § 2254(d)(2), however, the federal district court must view the 

evidence in a light reasonably supportive of the state district court’s 

findings. See Part II(D), below. 

 The difference between Rule 56 and § 2254(d)(2) does not affect our 

consideration of this issue because Mr. Bonney has declined to invoke 

§ 2254(d)(2) on this habeas claim. 

8 See Part II(A), above. 
15 

test, the federal district court concluded that the alleged deficiencies in the 

representation would not have been prejudicial. 

C. The federal district court did not err in granting summary 

judgment to the respondents on the habeas claim involving 

failure of Mr. Bonney’s attorney to seek dismissal of Count 

V. 

 In the habeas petition, Mr. Bonney alleged that his trial counsel was 

ineffective in failing to seek dismissal of Count V, which charged thirddegree sexual assault of V.B. Under state law, a third-degree sexual 

assault took place only if the perpetrator was an adult and the victim was 

13 or younger. Wyo. Stat. Ann. § 6-2-304(a)(ii) (repealed 2007).9

 Mr. 

Bonney was only 17 at the time, not yet an adult, and V.B. was 14. The 

state district court granted summary judgment to the State, reasoning that 

counsel’s alleged failure to seek dismissal was not prejudicial. The federal 

district court concluded that this ruling does not entitle Mr. Bonney to 

federal habeas relief. We agree. 

 

9

 Under Wyoming law, the prosecution is governed by the law in effect 

when the alleged crime took place. See Wyo. Stat. Ann. § 6-1-101(b). 

(stating that “[p]rosecutions for a crime shall be governed by the law in 

effect on the date when the crime occurred”). Thus, the 2007 repeal of the 

statute does not affect this appeal. See Wyo. Stat. Ann. § 8-1-107 (“[N]or 

shall any repeal or amendment affect . . . prosecutions or proceedings 

existing at the time of the . . . repeal, unless otherwise expressly provided 

in the amending or repealing act.”). The conduct that was previously 

outlawed by Wyo. Stat. Ann. § 6-2-304(a)(ii) is now outlawed by §§ 6-2-

315(a)(ii) and 6-2-316(a)(i). 
16 

 The plea agreement required the State to dismiss Count V. Thus, Mr. 

Bonney obtained the benefit of dismissal even though it came as part of a 

plea agreement rather than an order on a motion to dismiss. 

 Mr. Bonney argues that he signed the plea agreement partly because 

his attorney had exaggerated the value of the State’s promise to dismiss 

Count V. According to Mr. Bonney, the State’s promise was meaningless 

because he was too young and the alleged victim (V.B.) was too old for a 

third-degree sexual assault. Even if Mr. Bonney is correct, the prosecutors 

could have amended the charges. For example, prosecutors could have 

invoked Wyo. Stat. Ann. § 14-3-105(a) (repealed 2007),10 which prohibited 

Mr. Bonney from “knowingly taking immodest, immoral or indecent 

liberties with any child or knowingly causing or encouraging any child to 

cause or encourage another child to commit with him any immoral or 

indecent act.” 

The opportunity to amend the charge is fatal to this habeas claim 

because even if Count V were facially invalid, the attorney’s alleged 

failure to file a motion to dismiss did not affect the likelihood that a 

rational defendant would accept the plea agreement. In these 

circumstances, Mr. Bonney suffered no prejudice. As a result, the 

respondents were entitled to summary judgment on this habeas claim. 

 

10 This statute was repealed in 2007. See note 8, above. 
17 

D. We affirm the grant of summary judgment to the 

respondents on the ineffective assistance claim involving 

counsel’s exaggeration of the value of a recommendation 

that Pueblo County drop its charges. 

Mr. Bonney faced potential charges in two jurisdictions: 

1. Pueblo County, Colorado and 

2. Laramie County, Wyoming. 

These potential charges were based on reports that Mr. Bonney had 

engaged in sexual misconduct with five child relatives of Mr. Bonney: 

P.M., K.S., K.B., T.N., and V.B. By the time Mr. Bonney pleaded guilty, 

the prosecutors had narrowed the charges to be filed. In Laramie County, 

the charges involved sexual misconduct against only T.N. and V.B. In 

Pueblo County, Mr. Bonney faced the possibility of charges involving 

another child: K.B. 

Mr. Bonney pleaded guilty to the Laramie County charges. In return, 

the Laramie County prosecutors agreed to recommend to prosecutors in 

Pueblo County that they not pursue any charges involving K.B. According 

to Mr. Bonney, his attorney overstated the risk of additional charges 

involving K.B. Mr. Bonney downplays the risk, insisting that Pueblo 

County prosecutors had already decided not to pursue the charges by the 

time he signed an amended plea agreement. 

 On this claim, the state district court granted summary judgment to 

the State based on a lack of prejudice. Based on this ruling, the federal 
18 

district court awarded summary judgment to the respondents. In reviewing 

this grant of summary judgment, we apply the dual standards under 

 Federal Rule of Civil Procedure 56 and 

 28 U.S.C. § 2254(d). 

See Part II(A), above. Applying these standards, we agree that this habeas 

claim fails for lack of prejudice. 

 To prevail on this habeas claim, Mr. Bonney must show that an 

objectively reasonable defendant would not have accepted the amended 

plea agreement if trial counsel had taken further steps to learn the status of 

the case in Pueblo County. See Part II(A), above. Mr. Bonney cannot 

prevail under this standard. When he signed the initial plea agreement, 

promising to plead guilty, Pueblo County prosecutors were still 

considering whether to pursue the charges involving K.B. Mr. Bonney later 

signed an amended plea agreement; by that time, Pueblo County 

prosecutors had decided not to pursue the additional charges. 

According to Mr. Bonney, he would not have signed the amended 

plea agreement if he had known of the decision by Pueblo County 

prosecutors. But if Mr. Bonney had refused to sign the amended plea 

agreement, the original plea agreement would have applied. The original 

agreement was virtually identical to the amended plea agreement, for both 

versions 
19 

 required Mr. Bonney to plead guilty to two counts of seconddegree sexual assault and 

 required the prosecutors to recommend consecutive sentences 

of 15-20 years on the two counts. 

Mr. Bonney acknowledges one difference, but this difference benefited 

him: Without the amendment, prosecutors could have brought new charges 

involving sexual misconduct against K.S. This possibility was eliminated 

in the amended plea agreement.11

Having already committed to plead guilty under the initial plea 

agreement, no rational defendant would have refused to enter the amended 

plea agreement even if he or she had greater information about the status 

of the Pueblo County charges. In these circumstances, Mr. Bonney was not 

prejudiced by his attorney’s alleged failure to learn the current status of 

the Pueblo County investigation. As a result, the respondents were entitled 

to summary judgment on this claim. 

 

11 The amended plea agreement also expressly allowed K.S. and P.M. to 

testify at the sentencing. But the original plea agreement did not prohibit 

that testimony. In the absence of such a prohibition, the state district court 

could have allowed testimony by K.S. and P.M. See Town v. State, 351 

P.3d 257, 262-64 (Wyo. 2015) (allowing testimony at sentencing); Magnus 

v. State, 293 P.3d 459, 468-69 (Wyo. 2013) (allowing consideration of 

other offenses at sentencing). 
20 

E. The federal district court did not err in rejecting Mr. 

Bonney’s habeas claim involving his attorney’s 

misrepresentation about P.M.’s statements to prosecutors. 

P.M. told prosecutors that he had been sexually abused by Mr. 

Bonney. Under the amended plea agreement, prosecutors agreed not to 

charge Mr. Bonney with abuse of P.M. According to Mr. Bonney, his 

attorney exaggerated the value of this promise, stating falsely that P.M. 

had given a video recording lasting 31⁄2 hours, had appeared to be a 

compelling witness, and had told prosecutors about 8 separate acts that 

could result in 8 additional charges. The state district court conducted an 

evidentiary hearing and rejected the habeas claim on the merits. In doing 

so, the court found that 

 Mr. Bonney’s version of events was that his attorney had told 

Mr. Bonney’s family about the P.M. video before the video 

could have been made, 

 there was some doubt regarding the veracity of Mr. Bonney’s 

version, 

 P.M.’s testimony could have created problems for Mr. Bonney 

at trial, and 

 P.M.’s testimony could have resulted in additional charges. 

Mr. Bonney argues that his counsel 

 failed to independently evaluate the prosecutor’s 

representations about P.M.’s testimony and 

 exaggerated the importance of P.M.’s expected testimony. 
21 

But in light of the state district court’s factual findings, we conclude that 

Mr. Bonney was not prejudiced by his counsel’s alleged deficiencies. 

The state district court found that it was “true” that “P.M.’s 

testimony could cause problems if allowed to be presented as 404(b) 

evidence [‘proof of motive, opportunity, intent, preparation, plan, 

knowledge, identity, or absence of mistake or accident’] in this case” and 

that “additional charges could be filed.” Appellant’s App’x at 682. 

Mr. Bonney does not challenge the reasonableness of this finding, 

and that omission is fatal. Even if Mr. Bonney’s counsel had investigated 

further, he would have found that “P.M.’s testimony could cause problems” 

with respect to the existing charges and that the State could have filed 

additional charges. Id. The agreement allowed Mr. Bonney to 

 avoid additional charges related to P.M. and 

 reduce the risk that P.M. would be allowed to testify. 

Thus, Mr. Bonney has not shown that further investigation would have led 

a reasonable person to reject the plea agreement. See Part II(A), above. 

Because the state district court reasonably applied Supreme Court 

precedent, we uphold the denial of habeas relief on the claim involving 

P.M.’s statement to prosecutors. 

III. Disposition 

We reverse the award of summary judgment to the respondents 

on the habeas claim involving a failure to adequately investigate 
22 

discrepancies in the children’s accounts. We affirm the rulings on the 

other habeas claims.