UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

CHESTER L. BIRD, 

 Petitioner - Appellant, 

v. 

WYOMING DEPARTMENT OF 

CORRECTIONS STATE 

PENITENITARY WARDEN; WYOMING 

ATTORNEY GENERAL, 

 Respondents - Appellees. 

No. 17-8034 

(D.C. No. 2:17-CV-00027-NDF) 

(D. Wyo.) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

_________________________________ 

Before LUCERO, McHUGH, and MORITZ, Circuit Judges. 

_________________________________ 

Chester L. Bird is a Wyoming habitual offender serving concurrent life sentences 

for kidnapping and sexual assault, to which he pleaded guilty. After prior unsuccessful 

collateral attacks, he filed the habeas petition underlying this appeal. He alleged he has 

been denied direct review of his conviction by the Wyoming Supreme Court because it 

treated an appeal challenging the validity of his plea as an appeal from the denial of 

collateral review. The district court dismissed the petition without prejudice for lack of 

jurisdiction, holding that it was second or successive and that a transfer to this court for 

 *

 This order is not binding precedent except under the doctrines of law of the case, 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

June 5, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

potential authorization under 28 U.S.C. § 2244(b)(3) would be futile. See In re Cline, 

531 F.3d 1249, 1252 (10th Cir. 2008). Bird requests a certificate of appealability (COA) 

to permit review of the district court’s decision. Because “reasonable jurists could [not] 

debate whether (or, for that matter, agree that) the petition should have been resolved in a 

different manner,” Slack v. McDaniel, 529 U.S. 473, 484 (2000), we deny a COA and 

dismiss the appeal. 

Bird’s habeas petition claims he has been “deprived of a speedy direct appeal in 

violation of his constitutional right under the Sixth and Fourteenth Amendment[s].” R. at 

19. Some background will clarify the thrust—and successive nature—of that claim. 

Shortly after he was convicted and sentenced, Bird sought to withdraw his plea on 

the ground that he had been misinformed about the maximum sentence he faced for the 

offenses of conviction. Before accepting the plea, the state trial court had overstated the 

sentence, saying Bird faced the possibility of three consecutive life terms, two for the 

substantive offenses of kidnapping and sexual assault and one for his habitual-offender 

status. The latter is not a separate crime but merely the basis for enhancing sentence on 

the substantive offenses, so Bird faced at most two life terms. See Bird v. State, 901 P.2d 

1123, 1127-28 (Wyo. 1995). Counsel filed an appeal from the judgment of conviction, 

while Bird sent a pro se letter to the trial court seeking to withdraw his plea, citing a 

violation of Wyo. R. Crim. P. 11(b)(1) (before accepting a guilty plea, the trial court must 

ensure the defendant understands “the maximum possible penalty provided by law”). 

Although the trial court simply forwarded the letter to counsel, the Wyoming Supreme 

Court construed its action as “the automatic denial of [the] request” and reviewed that 
3 

constructive denial in Bird’s appeal from his conviction. Bird, 901 P.2d at 1128. It 

affirmed on the basis that Bird had not shown the erroneous statement of the maximum 

sentence was sufficiently prejudicial to warrant relief: 

We cannot discern how Bird was prejudiced in any way by the initial 

misstatement of the maximum sentence. That misstatement was corrected 

in Bird’s presence prior to sentencing and Bird, in fact, was sentenced to 

only two, not three, life sentences which were made to run concurrently. 

Bird had an opportunity to comment with respect to sentencing, and another 

opportunity to inform the court of any reason why it should not pronounce 

sentence. He declined each offer. 

Bird does not claim, nor can he, that he was threatened, directly or 

indirectly, with three consecutive life sentences should he not plead guilty. 

The misstatement occurred after Bird had advised the court through counsel 

of his desire to enter pleas of guilty. The erroneous statement did not 

induce Bird to change his plea from not guilty to guilty. . . . We are 

satisfied no substantial right held by Bird was affected, and he was not 

prejudiced in any respect. No miscarriage of justice occurred. 

Id. at 1130 (footnote omitted). 

As alluded to above, Bird’s objection to this analysis is that it was predicated on 

the supreme court’s characterization of the posture of the matter as “not a direct appeal 

from a plea of guilty but, instead, . . . an appeal from the denial of a motion to withdraw a 

plea of guilty (essentially a collateral attack).” Id. Given that characterization, the court 

required Bird to demonstrate that the error entailed a miscarriage of justice affecting 

substantial rights, rather than requiring the State to show that the error was harmless. Id.

at 1130 (analogizing Bird’s burden to that of a federal defendant seeking collateral relief 

for trial error under 28 U.S.C. § 2255). By contrast, in other appeals from plea-based 

convictions, both before and after Bird’s, the court has reviewed similar plea challenges 

under a constitutional harmless error standard requiring the State to show harmlessness 
4 

beyond a reasonable doubt. See, e.g., Ingalls v. State, 46 P.3d 856, 863 (Wyo. 2002) 

(following Stice v. State, 799 P.2d 1204, 1208 (Wyo. 1990)). Bird’s habeas petition 

claims this divergent treatment has deprived him of the direct appeal to which Wyoming 

law entitles criminal defendants. See R. at 25 (“Although properly presented with a 

[Rule] 11 violation in [Bird v. State], at no time has the Wyoming Supreme Court 

afforded Bird a direct appeal from his pleas of guilty, wherein the Wyoming Supreme 

Court has not required the State of Wyoming to prove that [the error] . . . was harmless 

beyond a reasonable doubt[.]” (internal quotation marks omitted)). 

The district court held that Bird was pursuing a second or successive habeas 

petition for which he had not obtained circuit authorization under 28 U.S.C. § 2244(b). 

And, noting that Bird had recently sought and been denied such authorization for the 

same claim, it concluded dismissal rather than transfer was appropriate. We agree on 

both points. 

Bird’s objection to the Wyoming Supreme Court’s analysis and disposition of his 

challenge to his plea has been available to him ever since Bird v. State was decided some 

22 years ago—well before he filed his first habeas petition in 1998. The instant petition 

is therefore facially second or successive. See United States v. Williams, 790 F.3d 1059, 

1069 (10th Cir.) (claim is second or successive if it “existed at the time of [an] initial 

habeas petition”), cert. denied, 136 S. Ct. 604 (2015). 

Bird seeks to avoid this conclusion by framing his petition as objecting not to the 

Wyoming Supreme Court’s adjudication of his appeal in Bird v. State but to the supreme 

court’s ongoing “delay in adjudicating [that] direct criminal appeal,” Opening Br. at 5 
5 

(emphasis added), which he insists is “in appellate limbo . . . and remains alive and 

unconcluded,” id. at 8 (citations and internal quotation marks omitted). This distinction 

serves as the premise for his reliance on case law indicating that a petition seeking to 

remedy a lost (or unreasonably delayed) direct appeal is not deemed successive to a prior 

petition challenging the underlying conviction. See Carranza v. United States, 794 F.3d 

237, 239-42 (2d Cir. 2015). We need not consider whether to follow Carranza, because 

Bird’s premise is spurious: the Wyoming Supreme Court’s decision in Bird v. State

formally disposed of the only appeal perfected by Bird following his conviction (he does 

not claim that he filed separate appeals from his conviction and the denial of his request 

to withdraw his plea). While he objects to the manner and substance of the court’s 

disposition,1

 his objections do not alter the basic fact that his appeal from the judgment of 

conviction was conclusively resolved in 1995, years before he pursued his first habeas 

petition. This is not a case involving delay in the disposition of a pending appeal. 

It is also beyond debate that the district court properly exercised its discretion to 

dismiss the habeas petition, rather than transfer it to this court to consider authorization of 

Bird’s successive claim, in light of our recent denial of authorization for another version 

of the same claim. We held: 

Mr. Bird’s . . . claim is that the Wyoming Supreme Court committed a 

procedural error by applying the wrong standard of review during his first 

appeal. Mr. Bird has not established that he could not have discovered the 

factual predicate for this claim previously through the exercise of due 

 1

 Bird contends, for example, that the supreme court erred in treating as a formal 

ruling the trial court’s action forwarding to counsel his pro se request to withdraw his 

plea and in reviewing that ruling (under a collateral review standard) instead of the 

validity of his plea-based conviction itself (under a direct review standard). 
6 

diligence. Nor would the facts underlying the claim be sufficient, in light 

of the evidence as a whole, to establish by clear and convincing evidence 

that, but for constitutional error, no reasonable factfinder would have found 

him guilty of the underlying offense. See 28 U.S.C. § 2244(b)(2)(B). 

In re Bird, No. 16-8076, Order at 3 (10th Cir. July 28, 2016) (brackets and internal 

quotation marks omitted). Bird contends his claim here is different, but that contention is 

based on the spurious distinction discussed above. Stripped of its contrived guise as a 

challenge to delay in the disposition of an appeal actually resolved 22 years ago, the 

claim Bird wishes to pursue is just another variant of his objection to the standard of 

review applied by the Wyoming Supreme Court in Bird v. State. 

 The application for a COA is denied and the appeal is dismissed. 

Entered for the Court 

ELISABETH A. SHUMAKER, Clerk