                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          NOV 17 2004
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 BRUCE LESLIE,

          Petitioner - Appellant,
 v.
                                                        No. 03-8098
                                                  (D.C. No. 01-CV-144-J)
 SCOTT ABBOTT, Warden, Wyoming
                                                        (Dist. Wyo.)
 State Penitentiary; and PATRICK
 CRANK, Wyoming Attorney General,

          Respondents - Appellees.


                             ORDER AND JUDGMENT *


Before SEYMOUR, EBEL and BRISCOE, Circuit Judges.


      In this appeal from the district court’s denial of habeas corpus relief under

28 U.S.C. § 2254, we examine Petitioner-Appellant’s claims of ineffective

assistance of appellate counsel. Because the district court granted COA in this

case, we take jurisdiction under 28 U.S.C. § 2253 and hold that the Petitioner’s

ineffective assistance of appellate counsel claims are without merit and that his

subsidiary claims alleging due process violations and ineffective assistance of



      *
       This Order and Judgment is not binding precedent, except under the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.
trial counsel are procedurally barred. The district court’s dismissal of his habeas

action is therefore AFFIRMED.



I.    Background

      Petitioner-Appellant Bruce Leslie (“Leslie”) was arrested and charged in

July of 1996 with four counts of first-degree sexual assault and four counts of

aggravated burglary. Two months later, his attorney moved to suspend the

criminal proceedings on the grounds that Leslie was too mentally ill to continue.

The state trial court judge transferred Leslie to the Wyoming State Hospital

(WSH) for a competency assessment. One month later, a doctor at the WSH

wrote to the trial court judge, stating that Leslie was incompetent. When the

court later inquired whether Leslie was ever likely to recover his competence to

stand trial, the WSH doctor replied that his diagnosis had changed over time, and

that he no longer thought Leslie was incompetent. Defense counsel then

requested a second opinion from another doctor, who concluded that Leslie was in

fact incompetent.

      The trial court held a competency hearing to resolve the conflict between

the two medical opinions, finding Leslie unfit to stand trial and ordering

compulsory medication with antipsychotic drugs, against Leslie’s strongly-stated

objections to being forcibly medicated. (Aplt. Br. at 4-5.) Subsequent


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competency hearings again found Leslie unfit, although the court sought the

opinion of two additional doctors, who both agreed with the WSH physician that

Leslie was not incompetent and that he did not need to be medicated to be

competent for trial. (Aplt. Br. at 5-6.) Leslie eventually did show some reduction

in his anti-social behaviors as a result of his medication, however, and in a fourth

competency hearing the trial court concluded that Leslie was now competent to

stand trial and ordered WSH to continue with his medication in order to maintain

his competence over the course of the trial. (Aplt. Br. at 7.)

      Leslie continued in his strong opposition to being medicated with

antipsychotic drugs, and defense counsel filed a motion for a hearing to further

address the appropriateness of the court’s involuntary medication order, but the

hearing was never held. (Aplt. Br. at 7.)

      In August of 1998, after the state obtained DNA evidence against him,

Leslie moved to change his plea from Not Guilty to Not Guilty by Reason of

Mental Illness or Deficiency. (Aplt. Br. at 7-8; Aple. Br. at 3-4.) After a sanity

examination ultimately concluded that Leslie was mentally ill at the time of the

crimes but that he “had substantial capacity to conform his behavior to the

requirements of the law,” the trial court ordered Leslie transferred from WSH to

the county jail. (Aplt. Br. at 8.)




                                         -3-
      On February 9, 1999, Leslie pled guilty to four counts of first degree sexual

assault, telling the court that his medication had not interfered with his ability to

understand the proceedings, and he was sentenced two months later to four

consecutive life sentences. (Id.) After a timely notice of appeal was filed in the

state court, Leslie met with his appointed appellate counsel from the state public

defender’s office, and subsequently withdrew his appeal.

      Leslie then filed for state post-conviction relief, raising three claims: (1)

that his forced medication was not supported by sufficient findings of the sort

required by the Supreme Court in Riggins v. Nevada, 504 U.S. 127 (1992), and

thus violated Leslie’s due process rights; (2) that Leslie’s trial counsel was

ineffective for failing to challenge the forced medication orders; and (3) that

Leslie’s appellate counsel was ineffective for failing to recognize meritorious

issues for appeal and for counseling Leslie to withdraw his appeal without first

investigating his mental competence to do so. (ROA at 50-70.) The state court

held that Leslie’s first two claims were procedurally barred, and denied relief

after rejecting on its merits his claim that appellate counsel had been ineffective.

(ROA at 83-89.) The Wyoming Supreme Court denied Leslie’s petition for

review.

      Leslie then sought habeas corpus relief in federal district court, raising

federal constitutional claims based on the same three issues presented to the state


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court. The district court denied relief after finding Leslie’s first two arguments

procedurally barred and rejecting his ineffective assistance of appellate counsel

claim under Strickland v. Washington, 466 U.S. 668 (1984). Leslie was granted

COA by the district court, and he now appeals on his claims that his forced

medication violated due process, that his trial counsel was ineffective, and that

his appellate counsel was ineffective for encouraging him to waive his appeal

without recognizing the merits of his due process and ineffective trial counsel

claims and without investigating Leslie’s mental competence to waive appeal.



II.   Discussion

      A.     Procedural posture

      In rejecting his petition for state post-conviction relief, the state court held

that Leslie’s waiver of direct appeal, and resultant failure to raise his due process

and ineffective assistance of trial counsel claims on direct appeal, constituted a

procedural default under Wyo. Stat. Ann. § 7-14-103 (Michie 1997). 1 When

confronted with the federal version of the same claims in Leslie’s § 2254 habeas


      1
        The Wyoming statute states that a claim for state post-conviction relief is
“procedurally barred and no court has jurisdiction to decide the claim if the claim:
       (i) Could have been raised but was not raised in a direct appeal from the
       proceeding which resulted in the petitioner's conviction . . . .”
W. S. 7-14-103(a)(i). Subsection (b)(ii) of that same statute excuses such a
procedural default if the petitioner can show that he “was denied constitutionally
effective assistance of counsel on his direct appeal.”

                                         -5-
petition, the federal district court held that the procedural bar created by

Wyoming’s waiver statute constituted an independent and adequate state ground

supporting a finding that those claims were procedurally defaulted for purposes of

federal habeas review.

      Leslie did not contest the validity of the state court’s procedural default

ruling in the district court, nor does he contend on appeal to this court that the

district court erred in finding his first two claims unexhausted and procedurally

defaulted under § 2254(b). As he did in the district court proceedings, Leslie

instead argues that he was afforded ineffective assistance of appellate counsel,

and that this failing provides the cause and prejudice required for us to excuse his

procedural default on the due process claim and ineffective assistance of trial

counsel claim. We therefore do not evaluate Leslie’s due process and ineffective

trial counsel claims directly but consider them through the prism of his ineffective

appellate counsel claim.



      B.     Standard of review

      When a state court has addressed and decided a federal claim on the merits,

AEDPA forbids us from granting federal habeas relief unless the state court’s

decision is “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United


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States . . . .” 28 U.S.C. § 2254(d)(1) (2000). Where the state court has not

addressed a particular claim on its merits, however, our review of all legal

questions decided for the first time in federal district court is de novo. Because

the state court apparently applied the Strickland standard, as incorporated into

state law, we will apply the AEDPA standard of review, while noting that the

result would be the same if our review were de novo.



      C.     Application of the ineffective assistance standard

             1.     Leslie’s first claim of ineffective assistance of appellate
                    counsel: failure to recognize meritorious arguments for appeal


      Leslie’s first claim for ineffective assistance of appellate counsel rests on

the premise that appellate counsel acted unreasonably by failing to raise his due

process forced medication claim and his ineffective trial counsel claim on direct

appeal. In Smith v. Robbins, 528 U.S. 259 (2000), the Supreme Court applied

Strickland’s familiar two-prong test to evaluate the effectiveness of appellate

counsel who concluded that an appeal would be frivolous and therefore failed to

file a merits brief in the state appellate court. Id. at 285. The Court held that

appellate counsel should be found to have acted objectively unreasonably if the

petitioner can “show that a reasonably competent attorney would have found one

nonfrivolous issue warranting a merits brief . . . .” Id. at 288.


                                          -7-
      Our review of the claims Leslie argues ought to have been pursued by

counsel on direct appeal convinces us that they both are in fact frivolous. We

hold, therefore, that his appellate counsel’s performance was not constitutionally

deficient and that he was not afforded ineffective assistance of appellate counsel.

      Leslie focuses the bulk of his argument before us on the claim that the

district court’s forced medication orders violated his due process rights. He relies

primarily on the Supreme Court’s decision in Riggins v. Nevada, 504 U.S. 127

(1992), which held that the state violates a criminal defendant’s liberty interest in

being free from involuntary administration of antipsychotic drugs without due

process when it forcibly subjects him to such medication without first finding that

treatment “was medically appropriate and, considering less intrusive alternatives,

essential for the sake of [the defendant’s] own safety or the safety of others.” Id.

at 135. The Riggins Court also found that the trial court’s failure to make any

such findings before ordering involuntary medication to continue during the

accused’s criminal trial infringed the defendant’s constitutional rights to a fair

trial, since the medication might affect his appearance during trial and alter the

character of his testimony or his ability to follow the proceedings. Id. at 137.

      It is well-established, however, that “a voluntary and unconditional guilty

plea waives all non-jurisdictional defenses.” United States v. Salazar, 323 F.3d

852, 856 (10th Cir. 2003). When, as here, “a criminal defendant has solemnly


                                         -8-
admitted in open court that he is in fact guilty of the offense with which he is

charged, he may not thereafter raise independent claims relating to the deprivation

of constitutional rights that occurred prior to the entry of the guilty plea. He may

only attack the voluntary and intelligent character of the guilty plea by showing

that the advice he received from counsel was not [competent].” Id. (quoting

Tollett v. Henderson, 411 U.S. 258, 267 (1973)) (alteration in original).

      Leslie does not challenge the voluntariness of his guilty plea, nor does he

claim that his forcibly administered antipsychotic medication handicapped his

ability to comprehend his plea. Leslie’s unconditional guilty plea waived all his

claims relating to antecedent violations of his constitutional rights, and his due

process argument would therefore not have been cognizable on direct appeal. 2

      Leslie also claims that his trial counsel was ineffective for failing to

demand that the trial court provide sufficiently explicit Riggins findings justifying

his forced medication. This, however, is the only argument he makes for finding

ineffective assistance of trial counsel—nowhere does he claim that trial counsel’s

performance was in any way deficient during Defendant’s consideration and entry

of his guilty plea. (Aplt. Br. at 28-31.) Under Salazar and Tollett, the only


      2
        Although the government raised this waiver argument before the district
court, it inexplicably fails to do so on appeal. The government’s omission does
not, however, prevent us from relying on this principle since “this court can
affirm the district court’s decision on any legal ground the record supports.”
Romano v. Gibson, 239 F.3d 1156, 1168 (10th Cir. 2001).

                                         -9-
claims left to Leslie after his unconditional guilty plea are those attacking the

jurisdiction of the sentencing court or challenging the voluntariness of his plea.

Since his ineffective assistance of trial counsel claim does not include any

argument that counsel’s incompetence made his plea involuntary, this claim

would also have been found frivolous on appeal.

       Leslie has failed to identify any non-frivolous claim that should have been

advanced on appeal, and his claim that appellate counsel was ineffective for

failing to recognize viable claims and for encouraging him to withdraw his plea

therefore fails. 3



              2.     Leslie’s second claim of ineffective assistance of appellate
                     counsel: failure to investigate his mental health

       Leslie also contends that his appellate counsel was ineffective for obtaining

his consent to withdraw his direct appeal without investigating whether Leslie

was sufficiently mentally competent to knowingly and voluntarily waive his right

to a direct appeal. To the extent Leslie argues that his appellate counsel’s actions




       Because Defendant’s guilty plea has waived his claim for habeas relief
       3

based solely on the trial court’s alleged Riggins violations, and because
Defendant does not argue that his trial counsel was ineffective in advising him on
his guilty plea for failing to recognize any merit his Riggins claims might have
had, we decline to reach the substantive merits of his argument that the trial
judge’s findings supporting his forced medication orders fall short of what is
required by Riggins.

                                         - 10 -
deprived him of a possibly meritorious appeal, our conclusion above that Leslie

has not identified any such potentially meritorious claims forecloses that line of

argument. Furthermore, Leslie must show that he was prejudiced by appellate

counsel’s failure to investigate—i.e. Leslie must show that a sufficiently thorough

investigation would have led counsel to discover that he was in fact incompetent

to waive his appeal rights, and he fails to make such a showing.

       As the district court noted, however, Leslie does not even claim that he was

in fact mentally incompetent at the time that he agreed to withdraw his appeal.

Absent some demonstration about what an appropriately thorough examination of

his mental state would have revealed, Leslie’s complaint before us, that appellate

counsel ought to have been put on notice by his checkered psychiatric history, is

beside the point.



III.   Conclusion

        Since Leslie has failed to show ineffective assistance of appellate counsel,

we reject that claim on its merits. We therefore also conclude that Leslie has not

shown sufficient cause and prejudice to excuse his failure to exhaust his due

process and ineffective assistance of trial counsel claims in state court, and the

district court correctly refused to consider those claims as procedurally barred.

Moreover, those procedurally barred claims were themselves fatally undermined


                                        - 11 -
on their merits by Leslie’s guilty plea and by his subsequent failure to challenge

the voluntariness of that plea.

      The district court’s order dismissing Leslie’s habeas petition is

AFFIRMED.


                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




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