Donald D. Foltz, Jr. v. Wyoming Department of Corrections Medium Correctional Institution Warden

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
DONALD D. FOLTZ, JR.,
Petitioner - Appellant,
v.
WYOMING DEPARTMENT OF
CORRECTIONS MEDIUM
CORRECTIONAL INSTITUTION
WARDEN, in his official capacity,
a/k/a Eddie Wilson; WYOMING
ATTORNEY GENERAL,
Respondents - Appellees.
No. 20-8063
(D.C. No. 2:19-CV-00195-SWS)
(D. Wyo.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HOLMES, BACHARACH, and MORITZ, Circuit Judges.
_________________________________
This matter arose from the death of a two-year-old boy, BB. For
roughly a day and a half, BB stayed home with his mother, his four-year-
old sister, and Mr. Foltz. According to an autopsy, BB died from blunt
* We conclude that oral argument would not materially help us to
decide the appeal, so we have decided the appeal based on the record and
the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
FILED
United States Court of Appeals
Tenth Circuit
July 28, 2021
Christopher M. Wolpert
Clerk of Court
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force trauma inflicted within the last 24 hours. Mr. Foltz was convicted in
state court of first-degree murder.
After unsuccessfully appealing in state court, Mr. Foltz brought a
federal habeas action. The federal district court denied relief, and Mr.
Foltz wants to appeal. To do so, he needs a certificate of appealability. 28
U.S.C. § 2253(c)(1)(A). We can issue this certificate only upon “a
substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). Mr. Foltz would meet this standard only if reasonable jurists
“could disagree with the district court’s resolution of his constitutional
claims or . . . jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.
322, 327 (2003). Mr. Foltz has not met this standard.
1. Claims that the State Court Did Not Decide on the Merits
Mr. Foltz addresses two claims that the state supreme court did not
decide on the merits: (1) prosecutorial misconduct and (2) jury bias. The
state district court treated these as part of Mr. Foltz’s claim of ineffective
assistance of counsel (rather than as stand-alone claims for habeas relief),
and the state supreme court denied certiorari without identifying the claims
at issue. Mr. Foltz lacks a reasonably debatable argument on these claims.
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A. A certificate of appealability is unwarranted on Mr. Foltz’s
claim involving prosecutorial misconduct.
Mr. Foltz claims improper comment on his decision not to testify. In
closing argument, the prosecutor summarized the testimony of three
individuals who had accompanied BB shortly before he died. Each
individual denied harming BB. The prosecutor then added that this “just
leaves Mr. Foltz.” R. vol. 2, at 1853–54. Mr. Foltz asserts that this
statement implicitly referred to his decision not to testify.
In post-conviction proceedings, the state district court rejected this
claim as it related to defense counsel’s failure to raise the issue on appeal.
The state district court found that the prosecutor had not commented on
Mr. Foltz’s silence, finding instead that the prosecution was suggesting
that Mr. Foltz had been the only adult who could have injured BB. R. vol.
1, at 287.
The federal district court agreed. The court explained that a
prosecutor cannot comment on a defendant’s refusal to testify but can
comment on the trial evidence. See Griffin v. California, 380 U.S. 609, 614
(1965) (“What the jury may infer, given no help from the court, is one
thing. What it may infer when the court solemnizes the silence of the
accused into evidence against him is quite another.”). In our view, the
federal district court’s reasoning was unassailable.
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B. A certificate of appealability is unwarranted on Mr. Foltz’s
claim involving jury bias.
Mr. Foltz claims that Juror 1301 had implied bias from his marriage
to a legal secretary at the prosecutor’s office. In voir dire, Juror 1301
disclosed his wife’s employment. But he added that he had not discussed
the case with his wife, had no relationship with the prosecutor, and
believed that his spousal relationship would not affect his consideration of
the evidence. R. vol. 2, at 57–58.
In state post-conviction proceedings, Mr. Foltz claimed that his
counsel should have challenged the inclusion of Juror 1301. The state
district court made three pertinent findings:
1. Juror 1301 had no implied bias.
2. A challenge for cause would not have been granted based on
Juror 1301’s responses in voir dire.
3. Trial counsel had appropriately exercised strategic discretion
when declining to strike Juror 1301.
R. vol. 1, at 288–89, 374. Based on these findings, the state district court
rejected Mr. Foltz’s claim.
In his federal habeas petition, Mr. Foltz reasserted implied bias as a
stand-alone claim. The federal district court rejected the claim, relying on
opinions involving jurors employed by the government, not spouses of
governmental employees. See, e.g., United States v. Wood, 299 U.S. 123,
137, 141, 150 (1936) (concluding that governmental employees are not
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automatically disqualified from jury service in criminal cases); Dennis v.
United States, 339 U.S. 162, 171–72 (1950) (rejecting a claim of implied
bias based on a juror’s employment with the government). But Juror 1301
was not just married to a government employee; he was married to a legal
secretary employed by the prosecutor’s office. That relationship could
implicate different concerns than government employment in general.
Nonetheless, neither the Supreme Court nor our court has ever
 held that jurors are biased whenever their spouses work for the
prosecutor’s office or
 recognized implied bias without a connection between the juror
and a trial participant or involvement in the underlying matter.
We have said that implied bias can be found when the juror has a
personal connection to the case or has had experiences similar to the issues
being litigated. Skaggs v. Otis Elevator Co., 164 F.3d 511, 517 (10th Cir.
1998). We have also emphasized that a finding of implied bias must be
reserved for especially extreme or unusual circumstances. United States v.
Powell, 226 F.3d 1181, 1188 (10th Cir. 2000).
Mr. Foltz asserts that Juror 1301’s wife was on the trial team. For
this assertion, however, Mr. Foltz cites no evidence and the record reflects
none. Juror 1301’s responses at voir dire reveal no awareness of a
connection between his wife’s work and Mr. Foltz’s case, and no other
evidence suggests that the wife participated in the trial. And neither the
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Supreme Court nor our court has suggested inherent bias whenever a juror
is married to someone working for the prosecutor’s office.
Mr. Foltz cites opinions involving jurors who were victims or family
members of victims of crimes similar to the cases at issue or who were
dishonest at voir dire. See, e.g., United States v. Powell, 226 F.3d 1181,
1189 (10th Cir. 2000) (juror’s daughter had been a victim); Skaggs, 164
F.3d at 518 (dishonesty); Gonzales v. Thomas, 99 F.3d 978, 991 (10th Cir.
1996) (juror had been a victim). These opinions do not guide the analysis
here, for Juror 1301 answered honestly at voir dire and hadn’t been
victimized or related to a victim.
Mr. Foltz presented no evidence that Juror 1301 or his wife had any
connection to his case, so no jurist could reasonably debate the
constitutionality of Juror 1301’s participation on the jury. We thus deny a
certificate of appealability on this claim.
2. Issues that the State Supreme Court Decided on the Merits
In deciding whether to grant a certificate of appealability on the
remaining claims, we consider Mr. Foltz’s rigorous burden for habeas
relief. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (stating that
when deciding whether to grant a certificate of appealability, the court
“look[s] to the District Court’s application of [the habeas statute] to
petitioner’s constitutional claims”). This burden is steep when the state
appeals court has rejected a petitioner’s claims on the merits. On appeal, a
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habeas petitioner would need to show that the state appellate court’s
decision was
 contrary to, or involved an unreasonable application of, clearly
established federal law as determined by the Supreme Court or
 based on an unreasonable factual determination.
28 U.S.C. § 2254(d)(1)–(2).
Mr. Foltz seeks a certificate of appealability on two claims that the
state appellate court rejected on the merits: (1) insufficiency of the
evidence of guilt and (2) ineffective assistance of trial and appellate
counsel. On these claims, reasonable jurists could not debate Mr. Foltz’s
constitutional challenges.
A. The state appeals court rejected these claims on the merits,
triggering deferential review in habeas proceedings.
In the direct appeal, the state appeals court rejected Mr. Foltz’s claim
involving sufficiency of the evidence. So we defer to the court’s decision
and reasoning. Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
In the post-conviction proceedings, the state district court rejected
Mr. Foltz’s characterization of his trial and appellate counsel as
ineffective. The state appeals court declined certiorari in the post-
conviction proceedings, but supplied no explanation.
Because the state appeals court did not provide an explanation, we
consider the state district court’s rationale and presume that the appeals
court adopted the same reasoning. Id. We then examine whether this
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reasoning constitutes an unreasonable application of clearly established
federal law as determined by the U.S. Supreme Court or is based on an
unreasonable factual determination. See pp. 6–7, above.
B. A certificate of appealability is unwarranted on Mr. Foltz’s
claim involving insufficiency of the evidence.
In the course of claiming prosecutorial misconduct, Mr. Foltz
questions the sufficiency of the evidence. The federal district court thus
interpreted sufficiency of the evidence as a distinct habeas claim.
On direct appeal, the state supreme court concluded that the evidence
had sufficed for the conviction. The federal district court concluded that
this determination was reasonable based on the evidence and federal law.
R. vol. 1, at 383. In our view, no jurist could reasonably question this
conclusion.
C. A certificate of appealability is unwarranted on Mr. Foltz’s
claims of ineffective assistance of counsel.
Mr. Foltz also claims ineffective assistance of counsel. For trial
counsel, Mr. Foltz bases this claim on his attorney’s failure to object to
Juror 1301 and the prosecutor’s alleged comment on the decision not to
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testify. Mr. Foltz also claims that his appellate counsel should have raised
the issue involving Juror 1301’s implied bias. 1
To establish ineffective assistance of counsel, Mr. Foltz must show
that
 his “counsel’s representation fell below an objective standard
of reasonableness” and
 “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, 687–88, 694 (1984).
The state appeals court declined to overturn the state district court’s
determinations that
 Mr. Foltz had not shown errors by his trial attorney and
 appellate counsel had not been ineffective for failing to raise
those supposed errors.
R. vol. 1, at 282–90. In rejecting the claim of ineffective assistance of
counsel, the state district court reasoned “that a for-cause challenge to
Juror 1301 would not have been granted based on the voir dire responses
1 Mr. Foltz also alleges that
 trial counsel failed to object to prejudicial and irrelevant
evidence, failed to call a material witness, and neglected to
refile a request for change of venue and
 appellate counsel failed to raise certain issues and presented
improper argument to the state supreme court.
But he does not elaborate on these allegations.
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from Juror 1301 on the record.” Id. at 288. The state district court also
reasoned that Mr. Foltz’s counsel would have been ineffective only if Juror
1301 had actually been impliedly biased. Id. at 289.
This reasoning is not subject to reasonable debate because Mr. Foltz
hasn’t presented any evidence of implied bias. For example, he has not
pointed to any evidence that Juror 1301’s wife had worked with the
prosecutor or had any involvement in the case. Juror 1301 was asked at
voir dire whether his wife had spoken about Mr. Foltz’s case, and he said
“no.”
Perhaps Mr. Foltz’s attorney could have
 asked if anyone else had told Juror 1301 whether his wife had
worked on Mr. Foltz’s case or
 further explored the possibility that Juror 1301’s wife had been
involved in the case.
Even if counsel should have done more, Mr. Foltz would have needed to
show prejudice. Strickland, 466 U.S. at 693. 2 But he presented no evidence
2 The state district court reasoned that
 “a for-cause challenge to Juror 1301 would not have been
granted based on the voir dire responses from Juror 1301 on the
record” and
 Mr. Foltz had needed to show that Juror 1301 was impliedly
biased in order to prevail on the claim of ineffective assistance
for failing to issue a peremptory challenge to Juror 1301.
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of prejudice. He instead speculated that Juror 1301’s wife had worked on
his case. But even now, Mr. Foltz presents no evidence of such
involvement. Without such evidence, Mr. Foltz couldn’t possibly show that
the state appeals court had unreasonably rejected the claim of ineffective
assistance.
Mr. Foltz also did not demonstrate any misconduct by the prosecutor.
See Part 1(A), above. So he cannot show that his trial attorney erred by
failing to object to the prosecutor’s comments. 3
3. Denial of an Evidentiary Hearing and Appointment of Counsel
In federal district court, Mr. Foltz requested an evidentiary hearing
and appointment of counsel. The federal district court denied both
requests, and Mr. Foltz challenges these rulings. We affirm these rulings. 4
R. Vol. 1, at 288–89. This reasoning suggests that the state district court
had rejected the claim of ineffective assistance based on a failure to show
prejudice. In reviewing this determination about prejudice, we consider the
reasonableness of the court’s factual determinations and application of
Supreme Court precedent. See pp. 7–8, above.
3 The state court ruled on the merits of this claim as it related to
ineffective assistance of appellate counsel. But even without deference as
to the conduct of trial counsel, Mr. Foltz lacks a reasonably debatable
argument because he cannot show any prosecutorial misconduct.
4 Mr. Foltz does not need a certificate of appealability to appeal the
denial of an evidentiary hearing or appointment of counsel. See Harbison
v. Bell, 556 U.S. 180, 183, 194 (2009) (appointment of counsel); Norman v.
Stephens, 817 F.3d 226, 234 (5th Cir. 2016) (evidentiary hearing).
.
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A. The federal district court didn’t err in denying an
evidentiary hearing.
In considering the denial of an evidentiary hearing, we apply the
abuse-of-discretion standard. Anderson v. Att’y Gen. of Kan., 425 F.3d
853, 858 (10th Cir. 2005). Under this standard, we consider the possible
effect of 28 U.S.C. § 2254(e)(2), which restricts the availability of an
evidentiary hearing if the petitioner “failed to develop the factual basis of
a claim in State court proceedings.” 5 Because Mr. Foltz requested an
evidentiary hearing in his state post-conviction proceedings, we will
assume for the sake of argument that § 2254(e)(2) does not apply.
When § 2254(e)(2) does not apply, petitioners are entitled to
evidentiary hearings when their allegations, if true, would justify habeas
relief. Anderson, 425 F.3d at 858. “[T]he factual allegations must be
‘specific and particularized, not general or conclusory.’” Id. at 858–59
(quoting Hatch v. Oklahoma, 58 F.3d 1447, 1471 (10th Cir. 1995)).
In district court, however, Mr. Foltz did not make specific
allegations when he moved for an evidentiary hearing. To the contrary, the
substance of the motion consisted of a single sentence: “Due to the
5 If § 2254(e)(2) does apply, Mr. Foltz would not be entitled to an
evidentiary hearing because his habeas claim does not rely on “a new rule
of constitutional law” or “a factual predicate that could not have been
previously discovered through the exercise of due diligence.” 28 U.S.C.
§ 2254(e)(2)(A)(i)–(ii).
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complexity of petitioner’s capital case of first degree murder and a
sentence of life without parole, he is requesting the Court for an
evidentiary hearing and appoint counsel in his behalf that his rights to due
process and a fair trial will not be violated.” Petitioner’s Response to
Respondents’ Response at 18, Foltz v. Wyo. Dep’t of Corr. Medium Corr.
Inst. Warden, No. 19-cv-00295-SWS (D. Wyo. Oct. 26, 2020). Given Mr.
Foltz’s failure to identify any specific facts to be proven, the district court
did not abuse its discretion in denying the request for an evidentiary
hearing.
B. The federal district court didn’t err in declining to appoint
counsel.
Nor did the district court err in declining to appoint counsel. “There
is no constitutional right to counsel beyond the direct appeal of a criminal
conviction . . . .” Coronado v. Ward, 517 F.3d 1212, 1218 (10th Cir. 2008).
Although a defendant is entitled to counsel when an evidentiary hearing is
required, Mr. Foltz had no right to an evidentiary hearing. See Part 3(A),
above; see also Swazo v. Wyo. Dep’t of Corr. State Penitentiary Warden,
23 F.3d 332, 333 (10th Cir. 1994) (recognizing a right to counsel in habeas
proceedings when the district court determines that an evidentiary hearing
is required). So he was not entitled to appointment of counsel.
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4. Disposition
Because Mr. Foltz failed to present reasonable debatable arguments
on prosecutorial misconduct, jury bias, insufficiency of the evidence, or
ineffective assistance of counsel, we decline to issue a certificate of
appealability. Given the absence of a certificate, we dismiss the matter as
to these issues. We also affirm the denial of an evidentiary hearing and
appointment of counsel.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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