                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              JUN 15 1999
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 RICKY LEE HENDRICKS,

          Petitioner-Appellant,

 v.                                                          No. 98-7146
                                                              (E.D. Okla.)
 RON WARD; ATTORNEY GENERAL                            (D.Ct. No. 97-CV-158-S)
 OF THE STATE OF OKLAHOMA,

          Respondents-Appellees.
                        ____________________________

                            ORDER AND JUDGMENT *


Before BRORBY, EBEL, and LUCERO, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
      Appellant Ricky Lee Hendricks, a state prison inmate appearing pro se,

appeals the district court’s decision dismissing his habeas corpus petition

pursuant to 28 U.S.C. § 2254 and denying his request for a certificate of

appealability. We grant Mr. Hendricks’ motion for leave to proceed on appeal in

forma pauperis, deny his request for a certificate of appealability, and dismiss his

appeal.



      In November 1992, Oklahoma authorities charged Mr. Hendricks with

knowingly concealing stolen property, feloniously carrying a firearm, three counts

of unlawful possession of a controlled drug, injury to a public building,

maintaining a house resorted to by users of controlled drugs, and possession of

marijuana. During the following fourteen months, the county court ordered

various competency examinations and, along with another county court,

committed Mr. Hendricks to a state hospital. Specifically, beginning December

15, 1992, the Wagoner County court ordered an examination to determine Mr.

Hendricks’ competency to stand trial. Based on the examination results, the

county court issued an order finding Mr. Hendricks incompetent but capable of

achieving competency and committed him to a state hospital \. Shortly thereafter,

on January 12, 1993, the state hospital found Mr. Hendricks competent for the

purpose of standing trial, determining him capable of understanding the charges


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against him and consulting and assisting his attorney in his defense. Mr.

Hendricks then posted bond, and the hospital released him. A few months later, a

different county court committed Mr. Hendricks to the same state hospital where

he remained for two and one-half months. Because the Wagoner County court

and his attorney were apparently unaware of Mr. Hendricks’ new committal, the

court issued a bench warrant and a forfeiture order for his failure to appear at his

arraignment, and his attorney filed a motion to withdraw from representation

based on Mr. Hendricks’ failure to respond to communications or notify counsel

of his whereabouts, which the court granted.



      On August 31, 1993, the Wagoner County Court appointed Mr. Hendricks

new counsel, who filed an application for determination of Mr. Hendricks’

competency. The court granted the application and ordered another mental

examination. In November 1993, the county court held a post-competency

hearing and again ordered Mr. Hendricks examined. After review of the medical

report, the county court issued an order on December 20, 1993, finding Mr.

Hendricks incompetent but capable of achieving competency within a reasonable

time, and again committed him to the state hospital where he received treatment

with medication. On January 28, 1994, the state hospital issued a report finding

Mr. Hendricks competent for the purpose of understanding the charges against


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him and consulting and assisting his attorney in his defense. On February 18,

1994, the county court ordered Mr. Hendricks transported from the state hospital

to appear at another competency hearing, at which time the court found Mr.

Hendricks competent to stand trial. On March 1, 1994, in exchange for dismissal

of the other charges, Mr. Hendricks entered a plea of guilty to “injury to a public

building.” At the plea hearing held on the same day, the county court accepted

the guilty plea, finding Mr. Hendricks competent to understand the nature of the

proceeding and the consequences of his plea. The county court then sentenced

him to ten years in prison. Mr. Hendricks admits he was a patient at the state

hospital at the time he entered his plea and was not released from that facility

until six days after sentencing.



      Mr. Hendricks did not file a direct appeal, but later filed an application for

state post-conviction relief alleging he was incompetent when he entered his

guilty plea and ineffective assistance of counsel. The state court denied relief

finding him competent at the time he entered his plea, and that he received

effective assistance of counsel throughout the proceeding. The Oklahoma Court

of Criminal appeals affirmed the county court’s decision, finding Mr. Hendricks’

application failed to articulate sufficient reason or special circumstance

explaining his failure to timely file a certiorari appeal as required by Oklahoma


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criminal procedure rules.



      Mr. Hendricks filed his § 2254 petition claiming due process violations,

mental incompetency at the time of his plea, lack of knowledge on how to proceed

on appeal, and ineffective assistance of counsel because his attorneys failed to

gather his mental health records, contest conflicting evidence, or ask for a

competency trial. The district court, on recommendation of a magistrate judge,

dismissed Mr. Hendricks’ petition. The magistrate judge found Mr. Hendricks

failed to demonstrate any deficiency in his counsel’s performance. In addition,

the magistrate judge found Mr. Hendricks failed to explain how the outcome of

his competency hearing would have changed if his attorney had researched his

mental history or contested the allegedly inconsistent evidence regarding his

competency. The magistrate judge also concluded Mr. Hendricks failed to show

the requisite cause and prejudice necessary to overcome his procedural default of

his claims in state court, or that miscarriage of justice would result if it did not

review his claims.



      On appeal, Mr. Hendricks raises the same issues raised in his petition. He

also complains the district court did not address the merits of his claims and

suggests he did not procedurally default his claims at the state level because the


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Oklahoma Court of Criminal Appeals actually reached the merits of his case. He

asserts incompetence when he entered his guilty plea because he allegedly

received no medication for his mental disability while incarcerated in the county

jail from the time of his competency hearing until ten days later when he entered

his plea. He also asserts his innocence.



      We review the legal basis for the district court’s dismissal of Mr.

Hendricks’ § 2254 petition de novo. See Jackson v. Shanks, 143 F.3d 1313, 1317

(10th Cir.), cert. denied, 119 S. Ct. 378 (1998). We review the district court’s

factual findings for clear error and presume the state court’s factual findings are

correct. Id. In determining whether he received ineffective assistance of counsel,

Mr. Hendricks must show his attorneys’ performance was deficient, and that the

deficient performance prejudiced his defense. See Strickland v. Washington, 466

U.S. 668, 687 (1984). To prevail on claims procedurally defaulted at the state

level, Mr. Hendricks must demonstrate sufficient “cause for the default and actual

prejudice as a result of the alleged violation of federal law, or demonstrate that

failure to consider the claims will result in a fundamental miscarriage of justice.”

Coleman v. Thompson, 501 U.S. 722, 750 (1991). Alternatively, if the nature of

his claim renders it exempt from procedural bar, his claim can be heard in federal

habeas corpus proceedings. Sena v. New Mexico State Prison, 109 F.3d 652, 654


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(10th Cir. 1997) (holding that where a defendant is denied a competency hearing,

procedural default does not apply to his substantive due process claim).



      Proceeding with these standards in mind, we begin by noting the Oklahoma

Criminal Appeals Court explicitly determined Mr. Hendricks defaulted his claims

by not pursuing them on direct appeal. Having defaulted his claims at the state

level, Mr. Hendricks fails to carry his burden to overcome his procedural default.

First, the county court that sentenced Mr. Hendricks not only ordered four mental

examinations, but held two competency hearings and a plea hearing prior to

accepting his guilty plea. Because Mr. Hendricks received a competency hearing,

he fails to establish any violation of substantive due process sufficient to

overcome his state procedural default. Cf. Sena, 109 F.3d at 654. While Mr.

Hendricks claims incompetence at the time of his plea because the county jail

allegedly failed to dispense his medication after his competency hearing, but

before his plea, the record – including his own statements – shows he remained

institutionalized at or under the care of the state hospital during the entire period

in question. Other than through conclusory allegations, Mr. Hendricks fails to

establish medication was not distributed to him. Moreover, the county court

found him competent after questioning him at the plea hearing and on advice of a

medical expert. Given the county court’s extensive knowledge of Mr. Hendricks’


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history of incompetency, it is reasonable to assume the court would have ordered

further medical examination or treatment if it questioned his competency during

the plea hearing. Thus, Mr. Hendricks’ claims are procedurally barred.



       We next proceed to Mr. Hendricks’ constitutional claim of ineffective

assistance of counsel for the purpose of evaluating his request for a certificate of

appealability. Both of Mr. Hendricks’ appointed counsel successfully sought

evaluation of his competency to stand trial. Mr. Hendricks has not shown how his

counsels’ failure to go farther in obtaining his medical records or demanding a

competency “trial” was deficient or prejudiced his defense. 1



       We conclude Mr. Hendricks fails to meet either the cause and prejudice or

fundamental miscarriage of justice standards, or any other exception required to

overcome his state procedural default. While Mr. Hendricks now makes a

conclusory assertion he is innocent of the crime charged, he has not made a

colorable showing of his innocence under the fundamental miscarriage of justice


       1
         In addition, Mr. Hendricks summarily alleges his attorney was ineffective
because he (1) knew he did not get his medication; (2) coerced his plea; and (3) failed to
file a motion to withdraw his plea or notify him of his right to appeal or of filing
deadlines. We have thoroughly reviewed the record and find nothing to support these
contentions. Moreover, the trial court advised Mr. Hendricks of his right to appeal and
the time for filing his appeal.


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standard. See Gilbert v. Scott, 941 F.2d 1067, 1068 n.2 (10th Cir. 1991).

Because Mr. Hendricks failed to overcome his state procedural default, the

district court was not required to address the merits of Mr. Hendricks’ claims.



      In order to obtain a certificate of appealability, Mr. Hendricks must make

“‘a substantial showing of the denial of a constitutional right.’” Lennox v. Evans,

87 F.3d 431, 434 (10th Cir. 1996) (quoting 28 U.S.C. § 2253), overruled on other

grounds by United States v. Kunzman, 123 F.3d 1363, 1364 n.2 (10th Cir.), and

cert. denied, 519 U.S. 1081 (1997). Mr. Hendricks fails to make such a showing.



      For these reasons, we grant Mr. Hendricks’ motion for leave to proceed on

appeal in forma pauperis, deny his request for a certificate of appealability, and

DISMISS his appeal.


                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




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