FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 10, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court DAGOBERTO ONTIVEROS,
Petitioner - Appellant,
v. No. 18-8057 (D.C. No. 2:17-CV-00164-NDF) MICHAEL PACHECO, Warden, (D. Wyo.) Wyoming State Prison; ATTORNEY GENERAL OF WYOMING,
Respondents - Appellees. _________________________________
ORDER DENYING A CERTIFICATE OF APPEALABILITY _________________________________
Before HARTZ, McHUGH, and CARSON, Circuit Judges. _________________________________
Applicant Dagoberto Ontiveros, an inmate in the custody of the Wyoming
Department of Corrections, requests a certificate of appealability (COA) to challenge the
denial by the United States District Court for the District of Wyoming of his application
for relief under 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (requiring a COA for a
prisoner in state custody to appeal from the denial of relief under § 2254). He complains
that the “Anders Brief” submitted by his appellate counsel in state court was
constitutionally defective and that the Wyoming Supreme Court deprived him of his right
of direct appeal by accepting his counsel’s brief and permitting him to withdraw.
Because Applicant has failed to make a substantial showing of the denial of a constitutional right, as required by 28 U.S.C. § 2253(c)(2), we deny a COA and dismiss
the appeal.
I. BACKGROUND
Applicant was originally charged with first-degree murder but reached an
agreement with the State to plead no contest to the charge of murder in the second
degree. The penalty for second-degree murder in Wyoming is a sentence of 20 years to
life in prison. The state district court sentenced Applicant to 20 to 24 years’
imprisonment.
Applicant filed a notice of appeal with the Wyoming Supreme Court. Because he
had pleaded no contest, which in Wyoming is equivalent in the criminal context to a plea
of guilty, see Martin v. State, 780 P.2d 1354, 1356 (Wyo, 1989), he had waived all
nonjurisdictional defenses, see Smith v. State, 871 P.2d 186, 188-89 (Wyo. 1994), leaving
available only claims “that address the jurisdiction of the court or the voluntariness of the
plea,” Kitzke v. State, 55 P. 3d 696, 699 (Wyo. 2002). After speaking to Applicant,
reviewing the entire case file, and examining other materials, his attorney—the senior
assistant appellate counsel for the state public defender—filed a brief purportedly in
accordance with Anders v. California, 386 U.S. 738 (1967), and moved for leave to
withdraw.
Although given the opportunity to submit a pro se brief, including two extensions
of time, Applicant did not file anything on the merits. The Wyoming Supreme Court
granted counsel’s motion to withdraw and affirmed the district court’s judgment and
sentence, citing Anders and saying that “following a careful review of the record and the
2 Anders brief submitted by appellate counsel, this Court finds appellate counsel’s motion
to withdraw should be granted and the district court’s ‘Judgment and Sentence’ should be
affirmed.” R. at 62.
Applicant’s § 2254 application asserted that his no-contest plea was involuntary
because of ineffective assistance of trial counsel and that he was denied his right to
appeal by ineffective appellate counsel and by the Wyoming Supreme Court because of
their failure to comply with Anders. The district court granted the State summary
judgment, dismissed the case with prejudice, and denied a COA.
II. STANDARD OF REVIEW
A COA will issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a
demonstration that . . . includes showing that reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). In other
words, the applicant must show that the district court’s resolution of the constitutional
claim was either “debatable or wrong.” Id.
The Antiterrorism and Effective Death Penalty Act of 1996 provides that an
application for relief under § 2254 may not be granted unless the prisoner has exhausted
the remedies available in state court. See 28 U.S.C. § 2254(b)(1)(A). Each issue must
have been “properly presented to the highest state court, either by direct review of the
conviction or in a postconviction attack.” Dever v. Kansas State Penitentiary, 36 F.3d
3 1531, 1534 (10th. Cir. 1994). Applicant has not presented his § 2254 claims in state
court. But this court may deny relief on the merits despite a failure to exhaust. See Wood
v. McCollum, 833 F.3d 1272, 1273 (10th Cir. 2016) (a court confronted with a petition
containing an unexhausted claim may “deny the entire petition on the merits” (internal
quotation marks omitted)).
III. DISCUSSION
Under Anders if an attorney examines a case and determines that an appeal
desired by his client would be “wholly frivolous,” counsel may “so advise the court and
request permission to withdraw.” Anders, 386 U.S. at 744. Counsel must submit a brief
to both the appellate court and the client, pointing to anything in the record that could
potentially present an appealable issue. See id. The client may then choose to offer
argument to the court. See id. If, upon close examination of the record, the court
determines that the appeal is frivolous, it may grant counsel’s request to withdraw and
dismiss the appeal. See id.
In this court Applicant does not pursue his claim of ineffective assistance of trial
counsel but complains only about how his state appeal was handled. He contends (1) that
his state appellate counsel was ineffective because he failed to file a proper brief after
determining only that his appeal was “not meritorious,” rather than that it was
“frivolous”; and (2) that the Wyoming Supreme Court improperly permitted appellate
counsel to withdraw rather than requiring the filing of a proper brief because it, too, did
not make the finding of frivolity required by Anders.
4 Applicant reads too much into Anders. That decision set forth a constitutionally
acceptable procedure but the Supreme Court did not say that it was the only possible
acceptable procedure. As the Court later explained, “[T]he Anders procedure is not an
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 10, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court DAGOBERTO ONTIVEROS,
Petitioner - Appellant,
v. No. 18-8057 (D.C. No. 2:17-CV-00164-NDF) MICHAEL PACHECO, Warden, (D. Wyo.) Wyoming State Prison; ATTORNEY GENERAL OF WYOMING,
Respondents - Appellees. _________________________________
ORDER DENYING A CERTIFICATE OF APPEALABILITY _________________________________
Before HARTZ, McHUGH, and CARSON, Circuit Judges. _________________________________
Applicant Dagoberto Ontiveros, an inmate in the custody of the Wyoming
Department of Corrections, requests a certificate of appealability (COA) to challenge the
denial by the United States District Court for the District of Wyoming of his application
for relief under 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (requiring a COA for a
prisoner in state custody to appeal from the denial of relief under § 2254). He complains
that the “Anders Brief” submitted by his appellate counsel in state court was
constitutionally defective and that the Wyoming Supreme Court deprived him of his right
of direct appeal by accepting his counsel’s brief and permitting him to withdraw.
Because Applicant has failed to make a substantial showing of the denial of a constitutional right, as required by 28 U.S.C. § 2253(c)(2), we deny a COA and dismiss
the appeal.
I. BACKGROUND
Applicant was originally charged with first-degree murder but reached an
agreement with the State to plead no contest to the charge of murder in the second
degree. The penalty for second-degree murder in Wyoming is a sentence of 20 years to
life in prison. The state district court sentenced Applicant to 20 to 24 years’
imprisonment.
Applicant filed a notice of appeal with the Wyoming Supreme Court. Because he
had pleaded no contest, which in Wyoming is equivalent in the criminal context to a plea
of guilty, see Martin v. State, 780 P.2d 1354, 1356 (Wyo, 1989), he had waived all
nonjurisdictional defenses, see Smith v. State, 871 P.2d 186, 188-89 (Wyo. 1994), leaving
available only claims “that address the jurisdiction of the court or the voluntariness of the
plea,” Kitzke v. State, 55 P. 3d 696, 699 (Wyo. 2002). After speaking to Applicant,
reviewing the entire case file, and examining other materials, his attorney—the senior
assistant appellate counsel for the state public defender—filed a brief purportedly in
accordance with Anders v. California, 386 U.S. 738 (1967), and moved for leave to
withdraw.
Although given the opportunity to submit a pro se brief, including two extensions
of time, Applicant did not file anything on the merits. The Wyoming Supreme Court
granted counsel’s motion to withdraw and affirmed the district court’s judgment and
sentence, citing Anders and saying that “following a careful review of the record and the
2 Anders brief submitted by appellate counsel, this Court finds appellate counsel’s motion
to withdraw should be granted and the district court’s ‘Judgment and Sentence’ should be
affirmed.” R. at 62.
Applicant’s § 2254 application asserted that his no-contest plea was involuntary
because of ineffective assistance of trial counsel and that he was denied his right to
appeal by ineffective appellate counsel and by the Wyoming Supreme Court because of
their failure to comply with Anders. The district court granted the State summary
judgment, dismissed the case with prejudice, and denied a COA.
II. STANDARD OF REVIEW
A COA will issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a
demonstration that . . . includes showing that reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). In other
words, the applicant must show that the district court’s resolution of the constitutional
claim was either “debatable or wrong.” Id.
The Antiterrorism and Effective Death Penalty Act of 1996 provides that an
application for relief under § 2254 may not be granted unless the prisoner has exhausted
the remedies available in state court. See 28 U.S.C. § 2254(b)(1)(A). Each issue must
have been “properly presented to the highest state court, either by direct review of the
conviction or in a postconviction attack.” Dever v. Kansas State Penitentiary, 36 F.3d
3 1531, 1534 (10th. Cir. 1994). Applicant has not presented his § 2254 claims in state
court. But this court may deny relief on the merits despite a failure to exhaust. See Wood
v. McCollum, 833 F.3d 1272, 1273 (10th Cir. 2016) (a court confronted with a petition
containing an unexhausted claim may “deny the entire petition on the merits” (internal
quotation marks omitted)).
III. DISCUSSION
Under Anders if an attorney examines a case and determines that an appeal
desired by his client would be “wholly frivolous,” counsel may “so advise the court and
request permission to withdraw.” Anders, 386 U.S. at 744. Counsel must submit a brief
to both the appellate court and the client, pointing to anything in the record that could
potentially present an appealable issue. See id. The client may then choose to offer
argument to the court. See id. If, upon close examination of the record, the court
determines that the appeal is frivolous, it may grant counsel’s request to withdraw and
dismiss the appeal. See id.
In this court Applicant does not pursue his claim of ineffective assistance of trial
counsel but complains only about how his state appeal was handled. He contends (1) that
his state appellate counsel was ineffective because he failed to file a proper brief after
determining only that his appeal was “not meritorious,” rather than that it was
“frivolous”; and (2) that the Wyoming Supreme Court improperly permitted appellate
counsel to withdraw rather than requiring the filing of a proper brief because it, too, did
not make the finding of frivolity required by Anders.
4 Applicant reads too much into Anders. That decision set forth a constitutionally
acceptable procedure but the Supreme Court did not say that it was the only possible
acceptable procedure. As the Court later explained, “[T]he Anders procedure is not an
independent constitutional command, but rather is just a prophylactic framework that [the
Court] established to vindicate the constitutional right to appellate counsel.” Smith v.
Robbins, 528 U.S. 259, 273 (2000) (internal quotation marks omitted). Consequently,
“States may . . . craft procedures that, in terms of policy, are superior to, or at least as
good as, that in Anders.” Id. at 276.
In particular, Smith approved a state procedure that did not require “counsel to
explicitly describe the case as frivolous.” Id. at 282. The Court recognized that requiring
counsel to characterize the client’s case as frivolous created tension between the
counsel’s duty not to present frivolous arguments to the court and the duty to further the
client’s interests. See id. at 281–82. The essential point is that appellate counsel submit a
proper brief if there are any arguable (that is, not frivolous) issues. See id. at 277–78; see
also id. at 280 (equating “frivolous” and “lacking in arguable issues”).
In light of Smith, no reasonable jurist could debate that Applicant’s state appellate
counsel was ineffective. To begin with, counsel’s brief attested that after he
“conscientiously reviewed the entire file, as well as other materials, [and spoke] with his
client,” he could find “no appealable issues.” R. at 47. Counsel stated that Applicant had
raised three complaints about his prosecution, plea, and sentence: (1) his sentence was
excessively harsh, (2) he did not commit second-degree murder, and (3) he was
improperly induced to plead no contest because he thought he would receive probation.
5 See R. at 47. The next eight pages of the brief then carefully explained why there was no
legal basis or factual support in the record for Applicant’s complaints (the brief had
earlier devoted three pages to the factual and procedural background and one page to the
standard of review). Although counsel’s appellate brief never used the term frivolous,
there can be no doubt that counsel had concluded that Applicant had no arguable issues to
present on appeal. Indeed, the first sentence of the brief’s three-sentence conclusion
stated that counsel had concluded “that there are no meritorious, arguable issues for
appeal.” R. at 57 (emphasis added). Thus, counsel satisfied his obligations under Anders
and Smith, and was not constitutionally ineffective
In addition, no reasonable jurist could debate that the Wyoming Supreme Court
denied Applicant’s right to appeal by improperly permitting appellate counsel to
withdraw without submitting further briefing. We recognize that the state supreme court
did not explicitly state that on review it had concluded that the appeal was frivolous. But
this is a matter of form rather than substance, and the court clearly complied with Smith.
After citing Anders earlier in its order, the court wrote: “Now, following a careful review
of the record and the ‘Anders brief’ submitted by appellate counsel, this Court finds that
appellate counsel’s motion to withdraw should be granted and the district court’s
‘Judgment and Sentence’ should be affirmed.” Order Affirming the District Court’s
Judgment and Sentence, R. at 62. A recitation of the requirements of Anders was
unnecessary. We presume “that state courts know and follow the law,” and we give
state-court decisions “the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24
(2002). In light of the state court’s explicit recognition of the applicability of Anders and
6 the persuasive brief submitted by Applicant’s state appellate counsel, we see no possible
rebuttal of the presumption that the court’s “careful review” included a determination that
the appeal was frivolous.
We DENY a COA and DISMISS the appeal.
Entered for the Court
Harris L Hartz Circuit Judge