Smith v. State, H--76--124

• Decision Date: 08 March 1976
• Docket Number: No. H--76--124,H--76--124
• Citation: 546 P.2d 1351
• Parties: Lovell SMITH, Petitioner, v. The STATE of Oklahoma and/or Richard Crisp, Warden, Respondents.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1351

546 P.2d 1351

Lovell SMITH, Petitioner, v. The STATE of Oklahoma and/or Richard Crisp, Warden, Respondents.

No. H--76--124.

Court of Criminal Appeals of Oklahoma.

March 8, 1976.

Lovell Smith, pro se.

Jimmy L. Phillips, Legal Assistance Program, Inmate (Paralegal), for petitioner.

Larry Derryberry, Atty. Gen., for respondents.

OPINION

BUSSEY, Judge:

Petitioner, Lovell Smith, sustained felony convictions in the Oklahoma County District Court, Case No. CRF--69--2849 and CRF--70--931. He was tried by a jury and convicted for the offense of Robbery with a Dangerous Weapon, After Former Conviction of a Felony, in Case No. CRF--69--2849, and judgment and sentence was rendered on March 9, 1970 and he filed a timely appeal in this Court. The Petitioner was thereafter tried by a jury for the offense of Assault and Battery with a Dangerous Weapon, After Former Conviction of a Felony, in Case No. CRF--70--931, found guilty and was sentenced on July 1, 1970, and appealed to this Court. Although the appeal from the conviction in Case No. CRF--69--2849 was filed in this Court on the 12th day of March, 1970, a decision was not rendered thereon until after the appeal from Case No. CRF--70--931, which was filed in this Court on the 11th day of July, 1970, had been affirmed in Smith v. State, Okl.Cr., 481 P.2d 804 (1971). Thereafter, the majority of this Court reversed with instructions to dismiss the judgment and sentence rendered on the Petitioner in Case No. CRF--69--2849, in Smith v. State, Okl.Cr., 486 P.2d 770 (1971). It is clear that the Petitioner was fully aware of the so-called 'perjured testimony' when the appeal was pending in Case No. CRF--70--931, but neither he nor his attorney raised this issue.

After the affirmance of Case No. CRF--70--931, Petitioner applied for post conviction relief in the Oklahoma County District Court on August 26, 1975, raising one assignment of error that he was denied the right to be confronted by the witnesses against him at the trial. Here, again, although he was aware of the alleged 'perjured testimony' he failed to raise it in the trial court. On October 1, 1975, the Oklahoma County District Court denied the post conviction relief, and Petitioner appealed to this Court from said Order, in his appeal to this Court he attempted to raise the issue of alleged 'perjured testimony' which was not properly before us since it had not been raised in the trial court. On October 17, 1974, this Court affirmed the Order denying post conviction relief, in which we adopted the findings of fact and conclusions of law entered by the Honorable Carmon C. Harris in his Order of October 1, 1975.

Petitioner alleges in the present application that he has appealed to the United States District Court for the Western District of Oklahoma in CIV--75--0922--D, and on February 10, 1976, the Honorable Judge Fred Daugherty held:

'The petitioner has exhausted his state remedies on the second proposition presented to this court. He has not exhausted his state remedies on his Proposition #1 concerning the alleged use of perjured testimony. This issue was neither presented on direct appeal or in the petitioner's prior application for post-conviction relief under the Oklahoma Post-Conviction Procedure Act. It is essential that a state prisoner afford state courts the opportunity to consider and resolve claims of constitutional infirmity before raising these claims in federal court. 28 USCA Section 2254 and Hoggatt v. Page, 432 F.2d 41 (CA10 1970). This court therefore will not entertain the petitioner's claim concerning the perjured testimony in this proceeding.'

We first direct Petitioner's attention to Rule 4.2A of the Rules of this Court pertaining to post-conviction appeals, which provides:

'The appeal to the Court of Criminal Appeals under the Post-Conviction Procedure Act constitutes an appeal On the record made in the District Court premised solely upon petitioner's Application for Post-Conviction Relief.' (Emphasis added)

We note that in the instant application, the Petitioner fails to assert any reason for his failure to raise the instant contention of perjured testimony on his first direct appeal or in his application for post conviction relief in the Oklahoma County District Court, being fully aware of the alleged 'perjured testimony' prior to his first appeal and subsequent post conviction application. This issue is not properly before us and could have been presented both on appeal and post conviction, as authorized by the statutes, had not the Petitioner...