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 CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before LUCERO , McHUGH , and MORITZ , Circuit Judges.

________________ _________________ Chester L. Bird is a Wyoming habitual o ffender serving concurrent life sentences for kidnapping and sexual assau lt, to which he pleaded guilty . After prior unsuccessful collateral attacks, he filed th e habeas petition underl ying this appeal. He alleged he has been denied direct review of his convic tion by the Wyoming Supreme Court because it treated an appeal challenging th e validity of his plea as an appeal from the denial of collateral review. The district court dismis sed the petition without pr ejudice 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* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Court2 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 ce rtificate of appealability (COA) to permit review of the district court’s deci sion. Because “reasonable jurists could [not] debate whether (or, for that ma tter, agree that) the petition shoul d 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 ri ght under the Sixth a nd Fourteenth Amendm ent[s].” R. at 19. Some background will clarify the thrust—a nd successive nature —of that claim. Shortly after he was convicted and senten ced, Bird sought to withdraw his plea on the ground that he had been misinformed a bout the maximum senten ce he faced for the offenses of conviction. Befo re accepting the plea, the state trial court had overstated the sentence, saying Bird faced the possibility of three consecu tive life terms, two for the substantive offenses of kidnapping and se xual 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 gu ilty plea, the trial court must ensure the defendant unders tands “the maximum possible penalty provided by law”). Although the trial court simply forwarded th e letter to counsel, the Wyoming Supreme Court construed its action as “the automatic denial of [the] request” and reviewed that3 constructive denial in Bird’s appeal from his conviction. Bird , 901 P.2d at 1128. It affirmed on the basis that Bird had not sh own the erroneous statement of the maximum sentence was sufficiently prejudicial to warrant relief: We cannot discern how Bird was pr ejudiced 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 whic h were made to run concurrently. Bird had an opportunity to comment w ith respect to sentencing, and another opportunity to inform th e court of any reason why it should not pronounce sentence. He dec lined each offer. Bird does not claim, nor can he, th at he was threatened, directly or indirectly, with three consecutive life sentences should he not plead guilty. The misstatement occurred after Bird ha d advised the court through counsel of his desire to enter pleas of gu ilty. 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 mi scarriage of justice occurred. Id. at 1130 (footnote omitted). As alluded to above, Bird’s objection to th is analysis is that it was predicated on the supreme court’s characterizat ion of the posture of the matt er as “not a direct appeal from a plea of guilty but, instead , . . . an appeal from the deni al 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 harmlessness4 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. 19 90)). Bird’s habeas petition claims this divergent treatment has deprived him of the direct appe al to which Wyoming law entitles criminal defendants. See R. at 25 (“Although prop erly 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 pl eas 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[.]” (inter nal quotation marks omitted)). The district court held that Bird was pursuing a second or successive habeas petition for which he had not ob tained circuit authorization under 28 U.S.C. § 2244(b). And, noting that Bird had recently sought an d been denied such authorization for the same claim, it concluded dismissal rather th an transfer was appropriate. We agree on both points. Bird’s objection to the Wyoming Supreme Court’s analysis a nd 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 fra ming his petition as objecting not to the Wyoming Supreme Court’s adju dication of his appeal in Bird v. State but to the supreme court’s ongoing “ delay in adjudicating [that] direct cr iminal appeal,” Opening Br. at 55 (emphasis added), which he insists is “in appellate limbo . . . and remains alive and unconcluded,” id. at 8 (citations and internal quotatio n marks omitted). This distinction serves as the premise for his reliance on ca se law indicating that a petition seeking to remedy a lost (or unreasonably delayed) direct a ppeal is not deemed su ccessive to a prior petition challenging the un derlying conviction. See Carranza v. United States , 794 F.3d 237, 239-42 (2d Cir. 2015). We need not consider wh ether 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 perfect ed 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 reso lved 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 exerci sed its discretion to dismiss the habeas petition, rather than transfer it to this cour t to consider authorization of Bird’s successive claim, in light of our recen t denial of authoriza tion for another version of the same claim. We held: Mr. Bird’s . . . claim is that th e Wyoming Supreme Court committed a procedural error by applying the wrong st andard of review during his first appeal. Mr. Bird has not established th at he could not have discovered the factual predicate for this claim prev iously through the exercise of due

1 Bird contends, for example, that the s upreme 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 estab lish by clear and convincing evidence that, but for constitutional error, no re asonable factfinder would have found him guilty of the und erlying offense. See 28 U.S.C. § 2244(b)(2)(B). In re Bird , No. 16-8076, Order at 3 (10th Cir. Ju ly 28, 2016) (brackets and internal quotation marks omitted). Bird contends his cl aim here is different, but that contention is based on the spurious distinc tion 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 anothe r 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