Williams v. State

• Decision Date: 04 September 2001
• Docket Number: No. PCD-2000-1650.,PCD-2000-1650.
• Citation: 2001 OK CR 24,31 P.3d 1046
• Parties: Sterling Bernard WILLIAMS, Petitioner, v. STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

31 P.3d 1046

2001 OK CR 24

Sterling Bernard WILLIAMS, Petitioner, v. STATE of Oklahoma, Respondent.

No. PCD-2000-1650.

Court of Criminal Appeals of Oklahoma.

September 4, 2001.

Attorneys on Appeal Bryan Lester Dupler, Laura M. Arledge, Appellate Defense Counsel, Capital Post Conviction Division, Oklahoma Indigent Defense System, Norman, OK, Attorneys for Petitioner.

W.A. Drew Edmondson, Attorney General, Jennifer B. Miller, Assistant Attorney General, Oklahoma City, OK, Attorneys for the State.

OPINION DENYING APPLICATION FOR POST-CONVICTION RELIEF AND EVIDENTIARY HEARING

LUMPKIN, Presiding Judge:

¶ 1 Petitioner Sterling Bernard Williams was convicted of First Degree Murder (Count I) (21 O.S.1991, § 701.7) and Assault and Battery with Intent to Kill, After Former Conviction of Two Felonies (Count II) (21 O.S.Supp.1992, § 652), Case No. CF-97-2385, in the District Court of Tulsa County. In Count I, the jury found the existence of four (4) aggravating circumstances and recommended the punishment of death. In Count II, the jury recommended as punishment ninety-nine (99) years imprisonment. The trial court sentenced accordingly. This Court affirmed the judgments and sentences in Williams v. State, 2001 OK CR 9, 22 P.3d 702. Petitioner filed his Original Application for Post-Conviction Relief in this Court on April 6, 2001, in accordance with 22 O.S.Supp.1995, § 1089.

¶ 2 Before considering Petitioner's claims, we must again consider the narrow scope of review available under the amended Post-Conviction Procedure Act. As we have said numerous times,

the Post-Conviction Procedure Act was neither designed nor intended to provide applicants another direct appeal. Walker v. State, 933 P.2d 327, 330 (Okl.Cr.1997) (interpreting Act as amended); Fox v. State, 880 P.2d 383, 384 (Okl.Cr.1994), cert. denied, 514 U.S. 1005, 115 S.Ct. 1318, 131 L.Ed.2d 199 (1995) (same conclusion under Act before amendments). The Act has always provided petitioners with very limited grounds upon which to base a collateral attack on their judgments. Accordingly, claims which could have been raised in previous appeals but were not are generally waived; and claims raised on direct appeal are res judicata. Thomas v. State, 888 P.2d 522, 525 (Okl.Cr.1994), cert. denied, 516 U.S. 840, 116 S.Ct. 123, 133 L.Ed.2d 73 (1995); Castro v. State, 814 P.2d 158, 159 (Okl.Cr.1991), cert. denied, 502 U.S. 1063, 112 S.Ct. 947, 117 L.Ed.2d 116 (1992).

Conover v. State, 942 P.2d 229, 230 (Okl.Cr. 1997). These procedural bars still apply under the amended Act. We have noted the new Act makes it even more difficult for capital post-conviction applicants to avoid procedural bars. Walker, 933 P.2d 327, 331 (Okl.Cr. 1997). Under 22 O.S.Supp.1995, § 1089(C)(1), the only claims which will be considered on post-conviction are those which "[w]ere not and could not have been raised" on direct appeal and which "support a conclusion either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent." A capital post-conviction claim could not have been raised on direct appeal if: (1) it is an ineffective assistance of trial or appellate counsel claim which meets the statute's definition of ineffective counsel; or (2) the legal basis of the claim was not recognized or could not have been reasonably formulated from a decision of the United States Supreme Court, a federal appellate court or an appellate court of this State, or is a new rule of constitutional law given retroactive effect by the Supreme Court or an appellate court of this State. 22 O.S.Supp.1995, §§ 1089(D)(4)(b), 1089(D)(9). Should a Petitioner meet this burden, this Court shall consider the claim only if it "[s]upports a conclusion either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent." 22 O.S.Supp.1995, § 1089(C)(2). As we said in Walker,

The amendments to the capital post-conviction review statute reflect the legislature's intent to honor and preserve the legal principle of finality of judgment, and we will narrowly construe these amendments to effectuate that intent. Given the newly refined and limited review afforded capital post-conviction applicants, we must also emphasize the importance of direct appeal as the mechanism for raising all potentially meritorious claims. Because the direct appeal provides appellants their only opportunity to have this Court fully review all claims of error which might arguably warrant relief, we urge them to raise all such claims at that juncture.

Walker, 933 P.2d at 331 (footnote omitted, emphasis in original). We now turn to Petitioner's claims.

¶ 3 In Proposition I, Petitioner claims appellate counsel was ineffective for failing to challenge Oklahoma Uniform Jury Instruction-Criminal (OUJI-CR) (2d) 4-68 concerning the sentencing options for first degree murder.¹ Petitioner asserts trial counsel objected to the instruction given to the jury on grounds the instruction failed to provide an adequate definition of the meaning of life without the possibility of parole. Petitioner argues that appellate counsel's failure to raise this issue on direct appeal denied him the effective assistance of counsel under prevailing professional norms. In order to assist in the resolution of this issue, this Court ordered a response from the Attorney General. Having timely received the response, we now consider Petitioner's claim.

¶ 4 In Walker, this Court set forth a three-prong test to review claims of ineffective assistance of appellate counsel.² Under this analysis, 1) the threshold inquiry is whether appellate counsel actually committed the act which gave rise to the ineffective assistance allegation. If a petitioner establishes appellate counsel actually did the thing supporting the allegation of ineffectiveness, this Court then 2) determines whether the performance was deficient under the first of the two-pronged test in Strickland v. Washington, 466 U.S. 668, 677-78, 104 S.Ct. 2052, 2059, 80 L.Ed.2d 674 (1984). If this burden is met, 3) this Court then considers the mishandled substantive claim, asking whether the deficient performance supports a conclusion "either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent." Walker, 933 P.2d at 333 n. 25 (quoting 22 O.S.Supp.1995, § 1089(C)(2)).

¶ 5 Here, the threshold question is met as appellate counsel did not challenge OUJI-CR (2d) 4-68 on direct appeal. We therefore turn to the second requirement under the new Act: whether such performance was deficient under the first prong of the Strickland test. Under this standard the analysis is whether counsel's performance was deficient under prevailing professional norms. Turrentine v. State, 965 P.2d 985, 990 (Okl. Cr.1998). ¶ 6 This Court has repeatedly upheld the uniform instruction setting forth the punishment of life without parole is sufficiently clear to enable any rational juror to understand it without explaining it further. Malicoat v. State, 992 P.2d 383, 400 (Okl.Cr.2000); Hain v. State 919 P.2d 1130, 1145 (Okl.Cr.),cert. denied, 519 U.S. 1031, 117 S.Ct. 588, 136 L.Ed.2d 517 (1996); McCracken v. State, 887 P.2d 323, 334 (Okl.Cr.1994),cert. denied, 516 U.S. 859, 116 S.Ct. 166, 133 L.Ed.2d 108 (1995). Further, this Court has held that instructions additional to the uniform instruction are not necessary. See Mayes v. State, 887 P.2d 1288, 1318 (Okl.Cr.1994),cert. denied, 513 U.S. 1194, 115 S.Ct. 1260, 131 L.Ed.2d 140 (1995) ("[T]here is no requirement for a trial judge to explain the Oklahoma parole process to a jury.") See also Douglas v. State, 951 P.2d 651, 678 (Okl.Cr. 1997),cert. denied, 525 U.S. 884, 119 S.Ct. 195, 142 L.Ed.2d 159 (1998); Mollett v. State, 939 P.2d 1, 11 (Okl.Cr.1997),cert. denied, 522 U.S. 1079, 118 S.Ct. 859, 139 L.Ed.2d 758 (1998); McGregor v. State, 885 P.2d 1366, 1383 (Okl.Cr.1994),cert. denied, 516 U.S. 827, 116 S.Ct. 95, 133 L.Ed.2d 50 (1995). Therefore, as this Court has consistently rejected challenges to OUJI-CR (2d) 4-68, we find appellate counsel was not deficient for failing to raise the issue on appeal. See Hooks v. State, 902 P.2d 1120, 1124 (Okl.Cr.1995) ("[T]o meet both the deficient performance and prejudice prongs of the Strickland v. Washington test, [petitioner] must establish that his appellate attorneys failed to raise issues warranting reversal, modification of sentence, or remand for resentencing.")

¶ 7 Further, appellate counsel was not deficient for failing to raise the issue in light of recent jurisprudence from the United States Supreme Court and the Tenth Circuit Court of Appeals. Petitioner asserts that in Shafer v. South Carolina, 532 U.S. 36, 121 S.Ct. 1263, 149 L.Ed.2d 178 (2001) the Supreme Court reaffirmed the principle of Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), that due process entitles a defendant to inform the jury of his parole eligibility where the defendant's future dangerousness is at issue and the only sentencing alternative to death available to the jury is life without the possibility of parole.

¶ 8 In Simmons, the jury was given two sentencing options-life imprisonment and death. Under South Carolina state law, the defendant's prior convictions rendered him ineligible for parole. The trial court refused the defendant's requested instructions defining a life sentence and setting forth his parole ineligibility. On appeal, the Supreme Court found in the absence of an instruction setting forth the defendant's parole ineligibility, the jury could have reasonably believed the defendant would be released on parole if he were not executed. The Court explained to the extent that misunderstanding pervaded the jury's deliberations, it had the effect of creating a false choice between sentencing the defendant to death and sentencing him to a limited period of incarceration....