*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand 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. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 15 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ RICKY LEE HENDRICKS, Petitioner-Appellant,

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

____________________________ ORDER AND JUDGMENT *

Before BRORBY , EBEL , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Appellant Ricky Lee Hendricks, a state prison inmat e appearing pro se , appeals the district court’s decision dismissing hi s habeas corpus petition pursuant to 28 U.S.C. § 2254 and denying his reques t 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 appealabili ty, and dismiss his appeal.

In November 1992, Oklahoma authorities charged Mr. Hendricks with knowingly concealing stolen property, feloniously c arrying a firearm, three counts of unlawful possession of a controlled drug, injuryto a public building, maintaining a house resorted to by users of control led drugs, and possession of marijuana. During the following fourteen months, the county court ordered various competency examinations and, along with ano ther county court, committed Mr. Hendricks to a state hospital. Speci fically, beginning December 15, 1992, the Wagoner County court ordered an exami nation 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 h ospital \. Shortly thereafter, on January 12, 1993, the state hospital found Mr. H endricks competent for the purpose of standing trial, determining him capable of understanding the charges-3-

against him and consulting and assisting his attorn ey in his defense. Mr. Hendricks then posted bond, and the hospital releas ed him. A few months later, a different county court committed Mr. Hendricks to t he same state hospital where he remained for two and one-half months. Because t he Wagoner County court and his attorney were apparently unaware of Mr. Hen dricks’ new committal, the court issued a bench warrant and a forfeiture orderfor his failure to appear at his arraignment, and his attorney filed a motion to wit hdraw from representation based on Mr. Hendricks’ failure to respond to commu nications 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 he ld a post-competency hearing and again ordered Mr. Hendricks examined. After review of the medical report, the county court issued an order on Decembe r 20, 1993, finding Mr. Hendricks incompetent but capable of achieving comp etency within a reasonable time, and again committed him to the state hospital where he received treatment with medication. On January 28, 1994, the state ho spital issued a report finding Mr. Hendricks competent for the purpose of understanding the charges against-4-

him and consulting and assisting his attorney in hi s defense. On February 18, 1994, the county court ordered Mr. Hendricks transp orted from the state hospital to appear at another competency hearing, at which t ime the court found Mr. Hendricks competent to stand trial. On March 1, 19 94, 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 c ounty court then sentenced him to ten years in prison. Mr. Hendricks admits h e was a patient at the state hospital at the time he entered his plea and was no t released from that facility until six days after sentencing.

Mr. Hendricks did not file a direct appeal, but lat er filed an application for state post-conviction relief alleging he was incomp etent 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 pl ea, and that he received effective assistance of counsel throughout the proc eeding. The Oklahoma Court of Criminal appeals affirmed the county court’s dec ision, 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-5-

criminal procedure rules.

Mr. Hendricks filed his § 2254 petition claiming du e process violations, mental incompetency at the time of his plea, lack o f knowledge on how to proceed on appeal, and ineffective assistance of counsel be cause his attorneys failed to gather his mental health records, contest conflicti ng evidence, or ask for a competency trial. The district court, on recommend ation 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 inconsist ent evidence regarding his competency. The magistrate judge also concluded Mr . Hendricks failed to show the requisite cause and prejudice necessary to over come his procedural default of his claims in state court, or that miscarriage of j ustice would result if it did not review his claims.

On appeal, Mr. Hendricks raises the same issues rai sed 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-6-

Oklahoma Court of Criminal Appeals actually reachedthe merits of his case. He asserts incompetence when he entered his guilty ple a because he allegedly received no medication for his mental disability wh ile 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 co urt’s factual findings for clear error and presume the st ate court’s factual findings are
correct. Id. In determining whether he received ineffective as sistance 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 procedu rally defaulted at the state level, Mr. Hendricks must demonstrate sufficient “c ause for the default and actual prejudice as a result of the alleged violation of f ederal law, or demonstrate that failure to consider the claims will result in a fun damental 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, hi s claim can be heard in federal habeas corpus proceedings. Sena v. New Mexico State Prison , 109 F.3d 652, 654-7-

(10th Cir. 1997) (holding that where a defendant is denied a competency hearing, procedural default does not apply to his substantiv e due process claim).

Proceeding with these standards in mind, we begin b y noting the Oklahoma Criminal Appeals Court explicitly determined Mr. He ndricks defaulted his claims by not pursuing them on direct appeal. Having defa ulted his claims at the state level, Mr. Hendricks fails to carry his burden to o vercome his procedural default. First, the county court that sentenced Mr. Hendrick s not only ordered four mental examinations, but held two competency hearings and a plea hearing prior to accepting his guilty plea. Because Mr. Hendricks r eceived 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 pl ea because the county jail allegedly failed to dispense his medication after h is 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 allegat ions, Mr. Hendricks fails to establish medication was not distributed to him. M oreover, the county court found him competent after questioning him at the pl ea hearing and on advice of a medical expert. Given the county court’s extensive knowledge of Mr. Hendricks’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.

-8- history of incompetency, it is reasonable to assume the court would have ordered further medical examination or treatment if it ques tioned his competency during the plea hearing. Thus, Mr. Hendricks’ claims are procedurally barred.

We next proceed to Mr. Hendricks’ constitutional cl aim of ineffective assistance of counsel for the purpose of evaluating his request for a certificate of appealability. Both of Mr. Hendricks’ appointed co unsel successfully sought evaluation of his competency to stand trial. Mr. H endricks has not shown how his counsels’ failure to go farther in obtaining his me dical 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. H endricks now makes a conclusory assertion he is innocent of the crime ch arged, he has not made a colorable showing of his innocence under the fundam ental miscarriage of justice-9-

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 meri ts of Mr. Hendricks’ claims.

In order to obtain a certificate of appealability, Mr. Hendricks must make “‘a substantial showing of the denial of a constitu tional 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 mak e such a showing.

For these reasons, we grant Mr. Hendricks’ motion f or leave to proceed on appeal in forma pauperis , deny his request for a certificate of appealabili ty, and
DISMISS his appeal.
Entered by the Court: WADE BRORBY United States Circuit Judge