Walker v. State

Decision Date23 January 1997
Docket NumberNo. PC-96-1003,PC-96-1003
Parties1997 OK CR 3 Jack Dale WALKER, Petitioner, v. The STATE of Oklahoma, Respondent.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Kristi L. Christopher, Capital Post-Conviction, Oklahoma Indigent Defense System, Norman, for Petitioner on appeal.

ORDER DENYING APPLICATION FOR POST-CONVICTION RELIEF,

EVIDENTIARY HEARING AND DISCOVERY

CHAPEL, Presiding Judge:

Jack Dale Walker was tried by a jury and convicted of First Degree Malice Aforethought Murder in violation of 21 O.S.Supp.1982, § 701.7(A) (Counts I and II), Assault and Battery with a Dangerous Weapon in violation of 21 O.S.Supp.1982, § 645 (Count III), and Assault with a Dangerous Weapon in violation of 21 O.S.Supp.1982, § 645 (Counts IV and V), in Tulsa County District Court Case No. CRF-89-18. In accordance with the jury's recommendation, the Honorable Clifford E. Hopper sentenced Walker to death on each of Counts I and II, twenty years imprisonment on Count III, and ten years imprisonment on each of Counts IV and V. Walker appealed these convictions and sentences to this Court and we affirmed. 1 The United States Supreme Court then denied his petition for writ of certiorari. 2

In accordance with the recent amendments to the Uniform Post-Conviction Procedure Act, 3 Walker filed his Original Application for Post-Conviction Relief in this Court on August 16, 1996. 4 In his first proposition, Walker attacks the constitutionality of Oklahoma's amended capital post-conviction review statute. He argues that the new scheme, both on its face and as applied, denies him due process, equal and adequate access to the courts, and violates the Ex Post-Facto Clause. We recently considered and rejected this constitutional attack upon Oklahoma's current capital post-conviction procedure. 5 Accordingly, Walker's first proposition is denied.

Before turning to Walker's remaining arguments, it is important--in light of the amended and more restrictive capital post-conviction statute--to reemphasize the narrow scope of review available on collateral appeal. First and foremost, the Post-Conviction Procedure Act was neither designed nor intended to provide applicants another direct appeal. 6 Rather, the post-conviction statutes have always provided applicants with only very limited grounds upon which to attack their "final" judgments. 7 Accordingly post-conviction claims which could have been raised in previous appeals but were not are generally considered waived; 8 and, post-conviction claims which were raised and addressed in previous appeals are barred as res judicata. 9

These procedural bars still apply to claims raised by capital post-conviction applicants appealing under the amended section 1089. However, the recent amendments to that statute have made it even more difficult for capital post-conviction applicants to avoid procedural limitations on collaterally asserted claims. Under section 1089, only those capital post-conviction claims that "[w]ere not and could not have been raised" 10 on direct appeal will escape the effects of waiver and res judicata. 11 Examples of capital post-conviction claims which "could not have been raised" 12 on direct appeal are (1) ineffective assistance of trial or appellate counsel claims that meet the statute's definition of ineffective assistance of trial or appellate counsel, 13 or (2) claims

(a) [that were] not recognized by or could not have been reasonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state ... or (b) [that are based upon] a new rule of constitutional law that was given retroactive effect by the United States Supreme Court or a court of appellate jurisdiction of this state.... 14

Once a capital post-conviction applicant has demonstrated that a claim was not and could not have been previously raised on direct appeal and thus should not be held procedurally barred, there remains another prerequisite to full review. Claims which successfully avoid procedural bar will ultimately be afforded collateral review only if, in addition, they "[s]upport a conclusion either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent." 15

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, 16 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 the 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.

We now turn to Walker's remaining post-conviction claims. Walker argues in his second proposition that he was denied his right to the effective assistance of trial counsel. Walker claims that his trial attorney was ineffective in the following ways: he failed to adequately prepare for trial; he failed to comply with the trial court's discovery order; he failed to request a proper competency evaluation, present available evidence or ask for a continuance to prepare for the competency hearing; he failed to seek suppression of Walker's pretrial statements; he failed to seat a fair and impartial jury; he failed to investigate or present evidence to negate the element of specific intent and he failed to request an intoxication defense instruction; he failed to present available evidence to support the requested first degree manslaughter instruction; he failed to present evidence that Walker was heavily medicated during trial; he failed to object to the late filing of the Bill of Particulars; he failed to object or request a continuance when the State filed an amended notice of evidence to be used in aggravation; and, he failed to investigate and present all of the evidence available in second stage.

Under the strict terms of the new statute, an ineffective assistance of trial counsel claim could not have been raised on direct appeal if it requires "factfinding outside the direct appeal record...." 17 In other words, ineffective assistance of trial counsel claims are properly raised and may be considered on post-conviction only if they are based upon facts which were not available to the applicant's direct appeal attorney and thus could not have been made part of the direct appeal record. Stated in prohibitive terms, this Court may not review Walker's post-conviction claims of ineffective assistance of trial counsel if the facts generating those claims were available to Walker's direct appeal attorney and thus either were or could have been used in his direct appeal. 18 Walker's ineffective assistance of trial counsel claims do not turn on facts unavailable at the time of his direct appeal.

Walker does support some of his ineffective assistance of trial counsel allegations with affidavits from Walker himself, from trial counsel and other attorneys employed by the Tulsa County Public Defender's office, from a doctor who recently examined Walker and from a juror who determined Walker's guilt and sentence. As additional support for his trial counsel ineffectiveness claims, Walker also provides medical records both from the hospital which treated him immediately after the murders and from the Tulsa County jail where he was subsequently incarcerated. 19 Despite the fact that these documents were not physically part of Walker's direct appeal record, it appears that the facts contained in them were available to his direct appeal attorney and thus could have been argued on direct appeal. For instance, Walker provides this Court with no evidence to suggest that Walker, his trial counsel, the other Tulsa County Public Defenders and the juror who have given affidavits for this post-conviction appeal were unavailable or unwilling at the time of Walker's direct appeal to provide sworn statements. Walker has also failed to provide this Court with any evidence to suggest that his hospital and county jail medical records which are included in this post-conviction appeal were either not in existence at the time his direct appeal was filed or were kept from his direct appeal attorney. Because the determination of Walker's ineffective assistance of trial counsel claims does not require factfinding outside the scope of information available to his attorney at the time of his direct appeal, those claims are not properly raised in this post-conviction appeal and will not be considered. Accordingly, Walker's second proposition is denied.

Walker argues in his third proposition that he was denied his right to the effective assistance of appellate counsel. He first argues that his direct appeal attorney, Johnie O'Neal, had a conflict of interest that caused him to omit all the instances of trial counsel's ineffectiveness previously alleged in proposition two. Walker next argues that O'Neal was ineffective in failing to raise the following three substantive issues which he claims would have warranted relief on direct appeal: (1) trial court improperly instructed the jury on the presumption of "not guilty" rather than on the presumption of innocence; (2) police improperly obtained Walker's statement and there was no Jackson v. Denno 20 hearing conducted to determine its voluntariness; and (3) Walker's competency was not properly determined.

In the context of an ineffective assistance of appellate counsel allegation, the supposedly mishandled claim "could not have been previously raised" and thus will not be procedurally barred if

it is a claim contained in an original timely application for post-conviction relief relating to ineffective...

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