concurring.
[¶ 20] I write separately because, while I agree that Mr. Schreibvogel is not entitled to the relief he seeks, I disagree with the majority's conclusion that the district court and this Court lack subject matter jurisdiction to decide his post-conviction claim. I disagree with the majority's interpretation of Wyo. Stat. Ann. $ 7-14-101, et seq. because it precludes consideration of an issue involving a constitutional right that was not raised and could not have been raised in a direct appeal and has not been decided in any previous proceeding. Were I writing the majority opinion, I would hold that Mr. Schreibvogel's assertion that he was denied his Sixth Amendment right to effective assistance of appellate counsel falls within the seope of § 7-14-101(b) and is not barred under § 7-14-103 and I would address the merits of the claim.
[¶ 21] In relevant part, § 7-14-101(b) provides:
Any person serving a felony sentence in a state penal institution who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the constitution of the United States or of the state of Wyoming, or both, may institute proceedings under this act.
Mr. Schreibvogel is a person serving a felony sentence in the Wyoming State Penitentiary who asserts that in the proceedings resulting in his conviction there was a substantial denial of his right to counsel under the Sixth Amendment. He is, therefore, entitled to institute proceedings under § 7-14-101 unless his claim is barred under § 7-14-108(a). That section provides in pertinent part as follows:
(a) A claim under this act 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;
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or
(ii) Was decided on its merits or on procedural grounds in any previous proceeding which has become final.
Mr. Schreibvogel's claim that he was denied effective assistance of appellate counsel could not have been raised in his direct appeal from the proceeding resulting in his conviction. It follows that the claim also has not been decided in any previous proceeding which has become final. Under the clear language of the statute, Mr. Schreibvogel's claim of ineffective assistance of appellate counsel is not barred and the district court had jurisdiction to decide the claim.
[¶ 22] In concluding otherwise, the majority opinion interprets the statutory language to mean that because Mr. Schreibvogel claimed in his direct appeal that his trial counsel was ineffective and we held otherwise, he is forever barred from challenging the effectiveness of his appellate counsel-a claim that was not, and could not, have been raised on direct appeal; a claim, therefore, that has never been decided. This interpretation leaves Mr. Schreibvogel with no relief for his claim that his Sixth Amendment right to effective appellate counsel was violated. I do not believe this result is what the legislature intended. It is also contrary to this Court's prior statements.
[¶ 23] In Cutbirth v. State, 751 P.2d 1257, 1263 (Wyo.1988), this Court held that post-conviction review was required of a petitioner's claim that appellate counsel ineffectively failed to present claims in his direct appeal concerning the improper admission of evi-denee and the violation of his right not to be compelled to give evidence against himself. The Court did not address the question of whether post-conviction relief is available when a petitioner asserts that appellate counsel presented a claim of ineffective assistance of trial counsel on direct appeal but did so ineffectively, However, the Court made it clear that a "claim of ineffective assistance of appellate counsel is not an issue which can be foreclosed as a matter of waiver ... under Wyoming law because it is not an issue that could have been raised in the initial appeal." Id. Thus, this Court has recognized, as the legislature did in enacting § 7-14-103, that *1106claims for ineffective assistance of appellate counsel are appropriate matters for consideration in post-conviction proceedings because they cannot be raised on direct appeal. They necessarily arise only after appeal.
[¶ 24] Despite this reality, the majority carves out a narrow exception to the non-waiver rule. The majority holds that a post-conviction claim for ineffective assistance of appellate counsel is waived if a claim of ineffective assistance of trial counsel was made on direct appeal. The majority reasons that creating this exception is appropriate because the issue of trial counsel's effectiveness has already been decided on direct appeal and post-conviction relief is not available to obtain review of issues previously raised or decided. The most obvious problem with this reasoning is that the issue of appellate counsel's effectiveness or ineffectiveness has not been previously raised or decided. The other problem, in my view, is that it denies post-conviction relief to a narrow category of petitioners, those who raised ineffective assistance of trial counsel on direct appeal, who claim to have received ineffective assistance of appellate counsel while it allows others with the same claim, those who did not raise ineffective assistance of trial counsel on direct appeal, to obtain review. Yet, in both instances post-conviction relief is sought for ineffective assistance of appellate counsel; in both instances the issue of appellate counsel's ineffectiveness was not raised in the direct appeal; and in both instances the issue of appellate counsel's ineffectiveness has not been decided on its merits in any previous proceeding. In both instances, I would hold that post-conviction review is required.
[¶ 25] In the present case, I would also hold that Mr. Schreibvogel has failed to demonstrate that he was denied effective assistance of appellate counsel. In reaching that result, I would apply the following principles from Cutbirth, 751 P.2d at 1266-67:
In submitting a claim of deficient representation by appellate counsel, the petitioner in the post-conviction proceeding must demonstrate ..., by reference to the record of the original trial without resort to speculation or equivocal inference, what occurred at that trial. The particular facts upon which the claim of inadequate representation by appellate counsel rests must be presented. The petitioner then must identify a clear and unequivocal rule of law which those facts demonstrate was transgressed in a clear and obvious, not merely arguable, way. Furthermore, the petitioner must show the adverse effect upon a substantial right in order to complete a claim that the performance of appellate counsel was constitutionally deficient because of a failure to raise the issue on appeal. [citations omitted] The adverse ef-feet upon a substantial right in the context of ineffective assistance of appellate counsel is shown by demonstrating a "* * * reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, supra, 466 U.S. [668] at 694, 104 S.Ct. [2052] at 2068 [80 L.Ed.2d 674 (1984) ]. *** The reasonable probability must be one that demonstrates a more favorable result to the appellant if the omitted issue had been pursued.
[¶ 26] Ordinarily, the determination as to whether the petitioner has made the required showing is to be made in the district court in which the post-conviction proceeding was filed. Here, however, as was also the case in Cutbirth, id. at 1264, the district court did not hold a hearing on the claim of ineffective assistance of appellate counsel. Under these cireumstances, I would do what was done in Cutbirth, id., and turn to the record of the original trial in order to weigh the question of deficient performance and prejudice.
[¶ 27] Mr. Schreibvogel alleges that his appellate counsel was ineffective in his direct appeal in not raising trial counsel's failure to pursue the effect of the victim's use of Paxil and aleohol or expert testimony as to the cause of an injury to the victim's face. He also alleges appellate counsel was ineffective in failing to seek a remand hearing under W.R.A.P. 21. From the record of the original trial, I would conclude not only that appellate counsel's performance was not deficient but that there was no prejudice to Mr. *1107Schreibvogel. Testimony was presented at trial about the victim's use of Paxil and alcohol and the fact that consuming aleohol while taking Paxil is not recommended. It was undisputed that the victim was taking Paxil and consumed alcohol on the night in question. At least one witness testified and the hospital notes reflected that the victim was intoxicated. Testimony was also presented that the victim fell outside her shop and injured her face. Additionally, testimony was presented that the victim was in and out of consciousness during the assault.
[¶ 28] From this evidence, trial counsel argued to the jury that the victim consumed aleohol to the point of being intoxicated while she was taking Paxil and, if she was drugged, that was the cause. Trial counsel also argued that the evidence showed she fell outside her shop causing the injury to her face. Given the trial record, I would conclude appellate counsel made no professional error as Mr. Schreibvogel asserts and a reasonable probability does not exist that the result would have been different had appellate counsel raised the issues Mr. Schreibvogel asserts should have been raised.
VOIGT, J., delivers the opinion of the Court; KITE C.J., files a concurring opinion.