THOMAS, Justice.
In this appeal, taken from the denial of his efforts to obtain post-conviction relief, Cutbirth raises two primary questions. Initially, he asserts that the trial court erred in denying his motion for a new trial which was premised upon a ground of newly discovered evidence. He also claims that the trial court erred in denying his motion [1259]*1259for post-conviction relief in which he urged ineffective assistance of counsel in his direct appeal from his conviction. In support of this latter issue, he argues that the ineffective assistance is demonstrated by the failure to assert in the direct appeal two issues which he now contends established error in the trial proceedings: (1) the introduction into evidence at his trial of prior physical assaults which he committed upon his wife; and (2) the violation of his constitutional right not to be compelled to give evidence against himself. We conclude that there was no prejudicial error implicated in these proceedings, and we affirm the decision of the trial court.
In his brief, Cutbirth states the issues as:
“I. Whether the trial court erred in denying Appellant’s Motion for a New Trial which was based upon newly discovered evidence.
“II. Whether Appellant received ineffective assistance of counsel in the course of his appeal.
“III. Whether this Court erred in permitting the State to introduce evidence pursuant to Rule 404(b), W.R.E., that Appellant had previously hit his wife.
“IV. Whether Appellant’s conviction was obtained in violation of his constitutional right not to be compelled to give evidence against himself.”
The State of Wyoming sets forth this statement of the issues to be decided in this case:
“I. Whether appellant’s motion for new trial was properly denied because newly discovered evidence was presented?
“II. Whether appellant was afforded effective assistance of counsel?
“HI. Whether the issue of the admissibility of defendant’s prior treatment of the victim was properly brought to the attention of this court?
“IV. Whether appellant’s conviction was obtained in violation of his constitutional right against self-incrimination?
“V. Whether this entire appeal should even be entertained?”
The proceedings which are the subject of this appeal were initiated in the district court following this court’s affirmance of the judgment and sentence which formalized Cutbirth’s conviction of second degree murder. Cutbirth v. State, Wyo., 663 P.2d 888 (1983). The opinion in that case succinctly describes the circumstances surrounding the shooting of Cutbirth’s wife on April 4, 1982. The evidence which was submitted at the trial was held to be sufficient to justify the jury in concluding that, in the course of a quarrel, Cutbirth obtained his .357 Magnum pistol from a cabinet, removed it from its holster and shot his wife in the head with it. As soon as his conviction was affirmed, Cutbirth instituted collateral attacks upon that conviction. Those efforts resulted in a consideration of an appeal from a denial of photographs of all exhibits and a transcript of Cutbirth’s recorded statement to law enforcement officials. Cutbirth v. State, Wyo., 695 P.2d 156 (1985). Some of Cutbirth’s efforts to proceed with his collateral attacks are outlined in that opinion.
Cutbirth was successful in obtaining permission of the district court to have some of the evidence evaluated by an independent criminalist. That individual concluded in a report that the explanation of the irregular wound in the victim’s head, furnished at trial by the pathologist, was erroneous, and “ * * * [p]re-impact destabilization (e.g. — low angle ricochet) is, however, a possible cause of such an irregular entry wound.” The report went on to say, however, that “ * * * [tjhis could neither be confirmed or excluded from an examination of the recovered bullet due to the extensive terminal ballistic damage and deformation it incurred from penetration of bone.” The theory of ricochet was relied upon by Cut-birth in his Amended Petition for New Trial, and he claims that the new trial should have been granted on the ground of newly discovered evidence.
In Opie v. State, Wyo., 422 P.2d 84, 85 (1967), this court set forth those factors as to which a party seeking a new trial must satisfy the court:
“ * * * (1) That the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that it did not come sooner; (3) [1260]*1260that it is so material that it would probably produce a different verdict, if the new trial were granted; and (4) that it is not cumulative, viz, speaking to facts in relation to which there was evidence at the trial.” (Citations omitted.)
The issues in Opie v. State, supra, were similar to those presented in this case. Recently, we have reiterated the necessity for demonstrating to the satisfaction of the district court that each of these factors is present. Gist v. State, Wyo., 737 P.2d 336 (1987); Frias v. State, Wyo., 722 P.2d 135 (1986). Whether these factors are manifested sufficiently to justify the granting of a new trial is a matter within the discretion of the trial court, and we do not reverse the decision of the trial court unless an abuse of discretion is shown as a matter of law. Gist v. State, supra. This conclusion can only be justified on the basis of a determination that the trial court’s decision was unreasonable.
In this case, the trial judge, in his Order Denying New Trial, specifically addressed the issues in this way:
“Now, Petitioner attacks his conviction from the opposite direction. Specifically, Petitioner asserts that he has discovered new evidence which establishes the killing to be accidental. Petitioner offers the conclusions of Lucien C. Haag, a ballistics expert, who theorizes: ‘Pre-im-pact destabilization (e.g. — low angle ricochet) is, however, a possible cause of such an irregular entry wound.’
“Petitioner’s argument that the killing was accidental is not a new theory. Although the Court does not rely on the statement for its decision in this case, it is interesting to note that in a statement to police which was suppressed by the Court at the insistence of Petitioner, Mr. Cutbirth reported that he thought the gun was empty; that he wanted his wife to leave him alone; that he wanted her to know that he meant business; that he pointed the gun in her direction; and
‘I thought it would click, just snap. It went off. I heard a loud roar, and I jumped. It scared me and I looked back her way and I looked at the wall because I figured it (hit) the wall; and I seen a little trickle of blood coming down her forehead right here.’
“The theory of an accidental killing was submitted to the jury. The jury found the Defendant guilty.
“While the theories of Lucien Haag may have come to the attention of Petitioner since the trial, in the exercise of due diligence, there was, or is, no valid reason why these theories were not sooner discovered.
“Furthermore, the evidence from Lucien Haag is not so material that it would probably produce a different result. The premise of the evidence is an irregular entry wound. Petitioner, and Mr. Haag, theorize that because the gun ‘fully and properly stabilizes fired bullets’ an irregular entrance wound could have been caused only by a bullet destabilized by ricochet. However, at trial the pathologist testified that there was extensive fracturing of the skull by the bullet; that it is fairly normal for such bullets to be ‘incredibly flat’; that high velocity bullets may or may not exit; and that there are two possibilities for irregular entrance wounds: unstable bullets or as the bone fractured, it widened the wound. The testing of Mr. Haag would, at best, be contradictory or cumulative to the testimony elicited at trial. However, it would not conclusively establish that the killing was accidental; more importantly it would not make an accidental killing more probable than an intentional killing. A jury would still be left with the same conflict to resolve: was the killing intentional as claimed by the State or was it an accident as claimed by Defendant?”
In its order, the trial court applied the Opie criteria and found that due diligence would have disclosed the views of the criminalist prior to trial; that the testimony of the criminalist would be only contradictory or cumulative, i.e., addressing facts as to which there was evidence at the trial; and that it was not so material that it probably would produce a different verdict at another trial. In addition, to those matters discussed by the trial judge, it perhaps [1261]*1261is worthwhile to note that in one of his reports the criminalist also said:
“No evidence of ricochet was present on this bullet [the bullet removed from the victim’s head]; the substantial flattening and partial breakup of the bullet was due to terminal ballistic damage.”
Even if the subsequent report is read as an opinion of ricochet instead of a suggestion of another possibility, the opinions of the criminalist are conflicting.
Cutbirth urges the court to abandon the Opie test, but we are satisfied that the Opie case establishes an appropriate approach for analyzing claims such as Cutbirth’s. We affirm the denial of the motion for new trial which was based on the ground of newly discovered evidence. There is less justification for granting a new trial on this ground in this case than was present in Frias v. State, supra, in which this court affirmed the denial of a motion for a new trial also premised upon a claim of newly discovered evidence.
We turn then to the issue arising from the denial of Cutbirth’s petition for post-conviction relief. This contention is articulated in Issues II, III and IV of Cutbirth’s statement of the issues. The claims relating to the issues of the prior battery and the inadmissibility of Cutbirth’s statements come before us only out of an abundance of caution in honoring the right to effective assistance of counsel in connection with an appeal, suggested by Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821, reh. denied 470 U.S. 1065, 105 S.Ct. 1783, 84 L.Ed.2d 841 (1985). While counsel was appointed to represent Cutbirth in connection with the motion for new trial based upon newly discovered evidence, the appointed attorney apparently understood that his duties were limited to that purpose.1 For this reason, the notice of appeal in this case was filed by Cutbirth pro se, and the appeal was taken only from the Order Denying New Trial, without any reference being made in the notice of appeal to the order which denied Cutbirth’s petition for post-conviction relief. Consequently, upon application by counsel appointed to prosecute the appeal, this court entered an order expanding the scope of the appeal to include the question of adequate representation in the direct appeal and the collateral questions raised as justification for the contention of inadequate representation.
Under our usual rule, we would not consider the contention that the court erred at trial in permitting the introduction into evidence of prior bad acts pursuant to Rule 404(b), W.R.E., nor the claim that Gutbirth’s right not to be compelled to give evidence against himself had been violated. This court has taken a disciplined approach to post-conviction relief, pointing out that it is not a substitute for the right of review upon appeal from a conviction, nor is it to be treated as an appeal. Pote v. State, Wyo., 733 P.2d 1018 (1987); Hoggatt v. State, Wyo., 606 P.2d 718 (1980); Johnson v. State, Wyo., 592 P.2d 285, cert. denied 442 U.S. 932, 99 S.Ct. 2864, 61 L.Ed.2d 300 (1979); Munoz v. Maschner, Wyo., 590 P.2d 1352 (1979). Questions which may be raised by a motion for post-conviction relief are limited to those of constitutional magnitude which manifest a miscarriage of justice. Wright v. State, Wyo., 718 P.2d 35 (1986); Hoggatt v. State, supra. Those issues which could have been presented on appeal are not open to challenge by a motion for post-conviction relief because they are foreclosed by the doctrine of res judica-ta. Wright v. State, supra; Hoggatt v. State, supra; Munoz v. Maschner, supra.
Our rule is one of procedural waiver or default which is in accord with the rule invoked when a post-conviction review proceeding is pursued in the federal courts. If a person convicted in state court fails to assert a legal issue when an appropriate [1262]*1262opportunity exists, in accordance with state procedural rules, that person is foreclosed from relief in a federal post-conviction proceeding unless he can meet the dual requirements of showing cause for the failure and actual prejudice. Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984); Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783, reh. denied 456 U.S. 1001, 102 S.Ct. 2286, 73 L.Ed.2d 1296 (1982); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594, reh. denied 434 U.S. 880, 98 S.Ct. 241, 54 L.Ed.2d 163 (1977); Pierre v. Shulsen, 802 F.2d 1282 (10th Cir.1986), cert. denied — U.S. -, 107 S.Ct. 1964, 95 L.Ed.2d 536 (1987), reh. denied — U.S. -, 107 S.Ct. 3246, 97 L.Ed.2d 750 (1987); Andrews v. Shulsen, 802 F.2d 1256 (10th Cir.1986) cert. denied — U.S. -, 107 S.Ct. 1964, 95 L.Ed.2d 536, reh. denied — U.S. -, 107 S.Ct. 3246, 97 L.Ed.2d 750 (1987).2 Policy principles of finality and judicial economy demand that a state be allowed, as a matter of procedure, to compel a defendant to assert all claims of error in his direct appeal. Failure to do so justly results in a waiver of those issues in collateral proceedings. Wright v. State, supra. Our approach fits with the federal rule because in the courts of this state, a convicted person is foreclosed from raising in a post-conviction proceeding any claim of error which he could or should have presented on appeal unless he demonstrates good cause for not presenting the issue on appeal and actual prejudice arising from the failure to present it. This adoption of a rule parallel to the rule applied in the federal courts will facilitate in a material way the task of the federal courts in examining issues raised in federal post-conviction proceedings in which review is sought of a conviction in the State of Wyoming.
The waiver rule serves to foreclose those claims made in Cutbirth’s Petition for Post-Conviction Relief and his Amendment to the Original Petition for Post-Conviction Relief3 which we did not include in our order expanding the appeal. We reiterate that the courts of this state are not required to review issues which were raised or could have been raised on appeal when they are asserted in a motion for post-conviction relief. See Bryant v. State, Hawaii App., 720 P.2d 1015 (1986), citing Post Conviction Procedure A Suggested Solution, 2 HarvJ. on Legis. 189 (1965) (purpose of state post-conviction statutes is to afford relief similar to that of a federal writ of habeas corpus and to assure protection of constitutional rights in state courts).
We turn then to the claim that Cutbirth was denied effective assistance of counsel on his direct appeal. Cutbirth’s claim of ineffective assistance of counsel rests upon the failure to assert on appeal the two collateral issues identified as III and IV above. The claim that counsel on appeal did not raise every potential issue is a relatively new phenomenon. We have discovered only a few cases in which reversible error for ineffective assistance of appellate counsel was premised upon the failure to raise certain issues on appeal. Matire v. Wainwright, 811 F.2d 1430 (11th Cir.1987); Burton v. State, Ind., 455 N.E.2d 938 (1983); Shipley v. Cupp, 59 Or.App. 283, 650 P.2d 1032 (1982). While reaching the same result, cases in Pennsylvania are distinguishable because the Pennsylvania rule [1263]*1263requires that all issues of even arguable merit be raised, and there is no requirement of a finding of prejudice to the accused. E.g., Commonwealth v. Pfaff, 477 Pa. 461, 384 A.2d 1179 (1978); Commonwealth v. Carr, 320 Pa.Super. 1, 466 A.2d 1030 (1983); Commonwealth v. Broomell, 254 Pa.Super. 574, 386 A.2d 99 (1978). But see Commonwealth v. Dockins, 324 Pa.Super. 305, 471 A.2d 851 (1984). The plethora of precedent which over the years consistently has rejected claims of ineffective assistance of appellate counsel premised upon the failure to raise particular issues can be found in the cases cited in Annotation, Adequacy of Defense Counsel’s Representation of Criminal Client Regarding Appellate and Postconviction Remedies, 15 A.L.R.4th 582 (1982 and Supp.1987). Ineffective assistance of appellate counsel may justify review of a state court decision by a federal court, but the “cause and prejudice test” normally will be applied to such contentions. Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986). Generally, “ * * * the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default.” Murray v. Carrier, 477 U.S. 478, 486, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). In Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), the court pointed out that raising every issue on appeal can lessen the impact of specific issues which counsel feels offer a reasonable chance of success. It follows that the simple failure to raise certain issues on appeal, even if they were meritorious, does not require a conclusion of ineffective assistance of counsel. Emits v. Lu-cey, supra. The statement by the Supreme Court of the United States is that:
“ * * * A brief that raises every color-able issue runs the risk of burying good arguments — those that, in the words of the great advocate John W. Davis, ‘go for the jugular,’ Davis, The Argument of an Appeal, 26 A.B.A.J. 895, 897 (1940)— in a verbal mound made up of strong and weak contentions.” Jones v. Barnes, supra, 463 U.S. at 753, 103 S.Ct. at 3313.
In Smith v. Murray, supra, 477 U.S. at 536, 106 S.Ct. at 2667, the Supreme Court, quoting Jones v. Barnes, supra, said:
“ * * * This process of ‘winnowing out weaker arguments on appeal and focusing on’ those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.”
Tactical choices play a part in appeal as well as at the trial level.
The claim of ineffective assistance of appellate counsel is not an issue which can be foreclosed as a matter of waiver or default under Wyoming law because it is not an issue that could have been raised in the initial appeal. We must, therefore, consider that issue. The first task is to identify a standard by which effective assistance of counsel on appeal may be tested. With respect to the standard of effective assistance of counsel on appeal, we adopt the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984), which we have applied with respect to effective assistance of counsel in the trial courts. E.g., Frias v. State, supra; Munden v. State, Wyo., 698 P.2d 621 (1985). This approach is the one which the majority of the federal courts have adopted, although the Supreme Court of the United States has not addressed the issue specifically. Robison v. Maynard, 829 F.2d 1501 (10th Cir.1987); Gray v. Greer, 800 F.2d 644 (7th Cir.1986); Griffin v. Aiken, 775 F.2d 1226 (4th Cir.1985) cert. denied — U.S. -, 106 S.Ct. 3301, 92 L.Ed.2d 715 (1986); Bowen v. Foltz, 763 F.2d 191, (6th Cir.1985); Schwander v. Blackburn, 750 F.2d 494 (5th Cir.1985); Mitchell v. Scully, 746 F.2d 951 (2nd Cir. 1984), cert. denied 470 U.S. 1056, 105 S.Ct. 1765, 84 L.Ed.2d 826 (1985); Cape v. Francis, 741 F.2d 1287 (11th Cir.1984), reh. denied 760 F.2d 281 (11th Cir.), cert. denied 474 U.S. 911, 106 S.Ct. 281, 88 L.Ed.2d 245 (1985); Parton v. Wyrick, 704 F.2d 415 (8th Cir.1983). The same requirements are applicable that are set forth in Strickland v. Washington, supra. It must be demonstrated that counsel’s representation was [1264]*1264deficient by showing errors were made that were so serious that counsel was not functioning in accordance with the constitutional guarantee, and furthermore, the deficient performance prejudiced the appellant. Cutbirth urges us to adopt the test found in Watson v. United States, 508 A.2d 75 (D.C.App.1986). Watson v. United States, supra, was vacated by Watson v. United States, 514 A.2d 800 (D.C.App.1986), and the case then was heard en banc. In a plurality decision, the United States Court of Appeals for the District of Columbia followed the Strickland test for ineffective assistance of appellate counsel and found neither error nor prejudice. Watson v. United States, 536 A.2d 1056 (D.C.App.1987). We are satisfied that the Strickland test represents the better rule.
To paraphrase Strickland v. Washington, supra, as quoted in Gist v. State, supra, Campbell v. State, Wyo., 728 P.2d 628 (1986), and Frias v. State, supra, in analyzing the question of prejudice to Cut-birth, the failure to assert the claimed issues in his direct appeal must be found to have resulted in the denial to Cutbirth of a fair review, the result of which is not to be considered reliable, by showing an error of judgment on the part of counsel and resulting prejudice. In this instance, the district court held no hearing with respect to the issue of ineffective assistance of appellate counsel, and this makes the determination more difficult. Wicker v. McCotter, 783 F.2d 487 (5th Cir.1986), cert. denied — U.S. -, 106 S.Ct. 3310, 92 L.Ed.2d 723 (1986); Hamilton v. McCotter, 772 F.2d 171, reh. denied 777 F.2d 701 (5th Cir.1985); Griffin v. Aiken, supra. In Robison v. Maynard, supra, the Tenth Circuit Court of Appeals remanded the case to the district court for a factual inquiry with respect to the reasons that appellate counsel failed to raise certain issues on direct appeal. In Gray v. Greer, supra, the court alluded to the possibility of requiring a hearing to establish the facts with respect to the failure to raise issues on appeal and said at 800 F.2d 647:
“Petitioner further seeks an evidentiary hearing to resolve his claim of ineffective assistance of counsel. An evidentiary hearing is required only if a review of the record is not sufficient to resolve factual disputes regarding the choice of issues. Williams v. Owens, 731 F.2d 391 (7th Cir.1983). Given the nature of petitioner’s claims, it is difficult to envision the evidence of testimony which petitioner would present at such a hearing. When a claim of ineffective assistance of counsel is based on failure to raise issues on appeal, we note it is the exceptional case that could not be resolved on an examination of the record alone. We leave the determination of whether an evidentiary hearing is required to the discretion of the district court after review of the trial record.”
The Supreme Court of the United States in some of its decisions indicates that its analysis is based on a factual determination or finding made by the district court. See Burger v. Kemp, — U.S. -, 107 S.Ct. 3114, 97 L.Ed.2d 638, reh. denied — U.S. -, 108 S.Ct. 32, 97 L.Ed.2d 820 (1987); Smith v. Murray, supra. In this instance, in order to weigh either question of error, that is, deficient representation, or prejudice, we must turn to the record of the original trial.
The evidence which Cutbirth asserts violated Rule 404(b), W.R.E., is summarized in Cutbirth v. State, supra, 663 P.2d at 890. Essentially, it consisted of testimony of a battery committed upon the victim in the preceding year; instances in which Cutbirth was chasing his wife who was trying to escape; Cutbirth’s statements that he had given the victim a black eye; and two occasions of medical treatment of the victim for consequences of batteries by Cutbirth. The trial court entertained an offer of proof in chambers and then ruled that the evidence was admissible as bearing upon the issues of motive, malice, lack of accident and course of conduct. Without unwarranted detail, we hold that the trial court was correct in its ruling admitting the evidence of the prior bad acts pursuant to Rules 402, 408 and 404(b), W.R.E. There was no abuse of discretion in that decision. It was consistent with precedent in this state and elsewhere. [1265]*1265Coleman v. State, Wyo., 741 P.2d 99 (1987); Elliott v. State, Wyo., 600 P.2d 1044 (1979); Lonquest v. State, Wyo., 495 P.2d 575, cert. denied 409 U.S. 1006, 93 S.Ct. 432, 34 L.Ed.2d 299 (1972); Alcala v. State, Wyo., 487 P.2d 448 (1971), cert. denied 405 U.S. 997, 92 S.Ct. 1259, 31 L.Ed.2d 466, reh. denied 406 U.S. 911, 92 S.Ct. 1613, 31 L.Ed.2d 823 (1972); State v. Grider, 74 Wyo. 88, 284 P.2d 400, reh. denied 74 Wyo. 111, 288 P.2d 766 (1955); State v. Koch, 64 Wyo. 175, 189 P.2d 162 (1948). See also United States v. Naranjo, 710 F.2d 1465 (10th Cir.1983); United States v. Tsinnijinnie, 601 F.2d 1035 (9th Cir.1979), cert. denied 445 U.S. 966, 100 S.Ct. 1657, 64 L.Ed.2d 242 (1980); People v. Lazare, 189 Colo. 530, 542 P.2d 1290 (1975).
With respect to the contention that his constitutional protection against self-incrimination was infringed, Cutbirth relies upon both the Fifth Amendment to the Constitution of the United States of America and Art. 1, § 2 of the Wyoming Constitution. Prior to trial, a suppression hearing was conducted in the district court. At that juncture, the trial court limited the admissibility of statements made by Cut-birth to the investigating officers to those that were furnished prior to the advice that Cutbirth’s wife had died. The district judge found that the statements made prior to that time were free of coercive influence and were voluntary and admissible. He foreclosed the admission of other statements. Our review of the record persuades us that the ruling by the district court was within the totality of the circumstances test which we adopted in Frias v. State, supra. The statements which were admitted were the product of uncoerced choice and demonstrated sufficient comprehension to assure that the waiver of Cut-birth’s right to silence was made with full awareness of both the nature of his right and the consequences of his decision. This case is similar to Best v. State, Wyo., 736 P.2d 739 (1987), and Bueno-Hernandez v. State, Wyo., 724 P.2d 1132 (1986), cert. denied — U.S. -, 107 S.Ct. 1353, 94 L.Ed.2d 523 (1987), and we support the decision of the trial court as to the limited admissibility of Cutbirth’s statements. Cutbirth relies upon evidence that his blood alcohol content was more than .002. Other testimony, however, demonstrates the validity of the district court’s ruling that Cut-birth was in control of his faculties and aware of what he was doing at the time he made the statements to the officers. This determination also is consistent with Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985), cert. denied — U.S. -, 107 S.Ct. 585, 93 L.Ed.2d 587 (1986), upon which Cutbirth relies.
Although we would not be required to review the claims presented by the third and fourth issues, we have concluded that no error was made by the district court at trial in connection with those issues. Consequently, those claims cannot support a contention of ineffective assistance of counsel; no prejudice can be found with respect to them. Our conclusion that no prejudice can be found with respect to the failure to raise these issues on the appeal makes it unnecessary to compare them with other issues presented in Cut-birth’s appeal to determine if appellate counsel was guilty of deficient representation. It follows that Cutbirth, being unable to demonstrate prejudice, cannot claim inadequate representation of appellate counsel. His failure to satisfy the prejudice aspect of the test forecloses that claim.
This discussion resolves the issues in this case. We recognize, however, that approaching the task in this manner is antithetical to the strict application of the waiver rule. By agreeing to expand the scope of this appeal, we created a demand that we address the substantive claims which normally would be barred but which Cutbirth invoked by tying them to his claim of inadequate representation by appellate counsel. We should attempt to develop a concrete standard for adequate representation by appellate counsel so that we will not in every instance proceed contrary to the waiver rule and will not in every instance simply address the matter in an ad hoc way which inevitably finds counsel’s professional decisions tested by the collective determination of the members of the [1266]*1266appellate panel as to what they would have done given the same situation. We conclude that the issue of whether counsel’s performance was constitutionally deficient in light of Strickland v. Washington, supra, as invoked in Smith v. Murray, supra, and Murray v. Carrier, supra, should be analyzed in much the same way that this court has analyzed the concept of plain error.4 In submitting a claim of deficient representation by appellate counsel, the petitioner in the post-conviction proceeding must demonstrate to the district court, by reference to the record of the original trial without resort to speculation or equivocal inference, what occurred at that trial. The particular facts upon which the claim of inadequate representation by appellate counsel rests must be presented. The petitioner then must identify a clear and unequivocal rule of law which those facts demonstrate was transgressed in a clear and obvious, not merely arguable, way. Furthermore, the petitioner must show the adverse effect upon a substantial right in order to complete a claim that the performance of appellate counsel was constitutionally deficient because of a failure to raise the issue on appeal. See McDonald v. State, Wyo., 715 P.2d 209 (1986); Tompkins v. State, Wyo., 705 P.2d 836 (1985), cert. denied 475 U.S. 1052, 106 S.Ct. 1277, 89 L.Ed.2d 585 (1986); Munden v. State, Wyo., 698 P.2d 621 (1985); Westmark v. State, Wyo., 693 P.2d 220 (1984); Hamp[1267]*1267ton v. State, Wyo., 558 P.2d 504 (1977). The adverse effect upon a substantial right in the context of ineffective assistance of appellate counsel is shown by demonstrating a “ * * * reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, supra, 466 U.S. at 694, 104 S.Ct. at 2068. In this regard the test does address the fairness and integrity of the judicial proceedings. See Hopkinson v. State, Wyo., 632 P.2d 79 (1981), cert. denied 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed. 2d 463 (1982); Jones v. State, Wyo., 580 P.2d 1150 (1978). The reasonable probability must be one that demonstrates a more favorable result to the appellant if the omitted issue had been pursued. See Nimmo v. State, Wyo., 603 P.2d 386 (1979).
The application of these objective criteria will permit a trial court presented with a claim for post-conviction relief to decide whether a showing of cause has been made sufficient to avoid the waiver rule. The claim for relief attaching to inadequate representation by appellate counsel can be resolved without necessarily considering the substantive merit of the issues raised. If this process is followed, petitioners for post-conviction relief are not permitted to evade the waiver principle by the device of claiming inadequate representation by appellate counsel. Yet the petitioner who may have been denied adequate representation by appellate counsel is afforded a fair opportunity for potentially meritorious issues to be resolved.
In Cutbirth’s case, the process which we have described would have led to a correct result without any necessity for considering, in any substantive way, the issues which he claims appellate counsel failed to present. The claim of inadequate representation by appellate counsel could have been resolved by the application of the objective criteria set forth above rather than an examination of the merits of the claimed issues or simply an ad hoc analysis of them by the court to determine what its members might have done differently. When the objective criteria are invoked and the district court then is persuaded that appellate counsel did make a mistake which was prejudicial to the rights of the petitioner, appropriate relief can be afforded by ordering a new trial or, in the alternative, a reinstatement of the direct appeal so that the issue may be presented.
The district court correctly resolved the claim by Cutbirth that he was entitled to a new trial because of newly discovered evidence. There was no error in the order of the court denying the petition for post-conviction relief with respect to the contention of ineffective assistance of counsel in Cut-birth’s direct appeal, nor for any of the other reasons asserted in that petition for post-conviction relief. We affirm the district court on both aspects of this appeal.
URBIGKIT, J., filed a dissenting opinion.