                                                                 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


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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




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