Mitchell v. State

• Decision Date: 25 February 1997
• Docket Number: No. PC-96-789,PC-96-789
• Citation: 934 P.2d 346,1997 OK CR 9
• Parties: 1997 OK CR 9 Alfred Brian MITCHELL, Petitioner, v. The STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 346

934 P.2d 346

1997 OK CR 9

Alfred Brian MITCHELL, Petitioner, v. The STATE of Oklahoma, Respondent.

No. PC-96-789.

Court of Criminal Appeals of Oklahoma.

Feb. 25, 1997.

Jeremy B. Lowrey, Appellate Defense Counsel, Capital Post-Conviction, Oklahoma Indigent Defense System, Norman, on appeal, for Petitioner.

ORDER DENYING APPLICATION FOR POST-CONVICTION RELIEF AND

APPLICATION FOR EVIDENTIARY HEARING AND DISCOVERY

CHAPEL, Presiding Judge:

Alfred Brian Mitchell was tried by jury before the Honorable Daniel L. Owens in the District Court of Oklahoma County. In Case No. CRF-91-206 he was convicted of First Degree Malice Aforethought Murder in violation of 21 O.S.1991, § 701.7; Robbery with a Dangerous Weapon, in violation of 21 O.S.1991, § 801; Larceny of an Automobile, in violation of 21 O.S.1991, § 1720; Rape in the First Degree, in violation of 21 O.S.1991, §§ 1111, 1114; and Forcible Anal Sodomy, in violation of 21 O.S.1991, § 886. At the conclusion of the first stage of trial, the jury returned a verdict of guilty. During sentencing, the jury found 1) the murder was especially heinous, atrocious, or cruel; 2) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and 3) there was a probability that Mitchell would commit criminal acts of violence that would constitute a continuing threat to society. Mitchell was sentenced to death for the murder conviction and 170 years incarceration for the other crimes. Mitchell appealed his judgments and sentences to this Court and we affirmed. ¹ This Court denied Mitchell's petition for rehearing and the United States Supreme Court denied Mitchell's petition for certiorari. ²

On July 1, 1996, Mitchell filed an Application for Post-Conviction Relief directly with this Court. ³ Under Oklahoma's post-conviction statutes, the only issues that can be raised on post-conviction are those which: "(1) [w]ere not and could not have been raised in a direct appeal; and (2) [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." ⁴ On review, this Court must determine: "(1) whether controverted, previously unresolved factual issues material to the legality of the applicant's confinement exist; (2) whether the applicant's grounds were or could have been previously raised; and (3) whether relief may be granted...." ⁵ The Post-Conviction Procedure Act is not intended to provide a second appeal. ⁶ This Court will not consider an issue which was raised on direct appeal and is therefore barred by res judicata, ⁷ nor will we consider an issue which has been waived because it could have been raised on direct appeal but was not. ⁸ We will not address Mitchell's propositions which are barred by waiver or res judicata. ⁹

In Proposition I Mitchell claims that the recent amendments to the Oklahoma capital post-conviction procedures deny equal access to the courts and deprive Mitchell of due process, and that their retroactive application violates the ex post facto clause. In Hatch v. State ¹⁰ we held that the new procedures do not violate the Due Process Clause. ¹¹ We also found no equal protection violation, after determining that post-conviction procedures do not constitute a fundamental right and post-conviction petitioners do not constitute a suspect class. ¹² We reject Mitchell's ex post facto claim as well. This Court has repeatedly held that the capital punishment statutes are procedural in nature, and we may reweigh evidence, ¹³ require that a capital jury be instructed on the sentencing option of life without parole, ¹⁴ and allow trial courts to admit victim impact evidence ¹⁵ without violating the ex post facto clause. The collateral review available in post-conviction proceedings is also procedural. Contrary to Mitchell's argument, the changes neither alter nor remove capital petitioners' access to the remedial review provided by statute. ¹⁶ This proposition is denied.

In Proposition II Mitchell claims that the "clear and convincing" standard of evidence applied in the trial court's evaluation of his competency to stand trial violates his right to due process. Mitchell bases this claim on Cooper v. Oklahoma, ¹⁷ in which the United States Supreme Court held that Oklahoma's "clear and convincing" standard of evidence, imposed on a defendant by statute, violated fundamental due process rights. We decline to apply Cooper retroactively on post-conviction review. ¹⁸ This proposition is denied.

Mitchell claims ineffective assistance of appellate counsel in Proposition III, arguing that appellate counsel failed to claim that a first stage instruction--given over Mitchell's objection--was error. A claim of ineffective assistance of appellate counsel is properly before us if the Court finds that if the allegations were true, the performance of appellate counsel would constitute the denial of reasonably competent assistance of appellate counsel under prevailing professional norms. We analyze these claims using a three-tiered procedural scheme. ¹⁹ We first determine whether a petitioner has established that appellate counsel's conduct was deficient under prevailing professional norms. Only then will we consider the substantive claim which appellate counsel allegedly mishandled.

The record shows that appellate counsel did not attack the first stage instruction on direct appeal. Mitchell has thus established that the conduct supporting his allegation of ineffectiveness actually occurred, and we ask whether counsel's failure to raise this claim constitutes defective performance under prevailing professional norms. Mitchell presents no facts showing that appellate counsel's judgment was unreasonable under the circumstances, that it did not fall within the wide range of professional assistance, or that counsel breached any duty owed to him. ²⁰ Instead, Mitchell argues the substantive claim, and implies that counsel's failure to raise the claim as he describes it constitutes ineffective assistance of counsel. Mitchell is mistaken. An attorney's failure to raise an arguably meritorious claim on appeal, without proof that the omission was professionally deficient, will not support a finding of deficient performance. ²¹ Mitchell has not established that counsel's conduct was ineffective, and his substantive claim remains procedurally barred. This proposition is denied.

In Proposition IV Mitchell argues ineffective assistance of both trial and appellate counsel. Mitchell claims they should have argued that his statement should not have been admitted because police failed to administer Miranda warnings when he was taken into custody. He also claims trial and appellate counsel were ineffective because they failed to consider that Mitchell's juvenile experiences with police and the criminal justice system made him unable to effectively assert his right to silence.

Ineffective assistance of trial counsel claims are properly before the Court only if they require fact-finding outside the appeal record. ²² Mitchell has provided the Court with affidavits to support his claim that Proposition IV requires fact-finding outside the direct appeal record. This material constitutes part of the record before us on post-conviction, and we have reviewed it to determine if this issue must be remanded for a hearing in the district court. ²³ Nothing in the affidavits supports a finding that Mitchell's ineffective assistance of trial counsel claim requires fact-finding outside the appeal record. The information Mitchell now sets forth in support of his ineffective assistance of trial counsel allegation was available to appellate counsel, who waived it by not raising it at that time.

Turning to Mitchell's Proposition IV claims of ineffective assistance of appellate counsel, the record shows appellate counsel raised neither the issue of Miranda warnings nor the argument based on Mitchell's juvenile experience. Thus, the conduct which Mitchell claims was deficient actually occurred and we now ask whether that conduct was deficient. Once again Mitchell argues the substantive claims without offering reasons why counsel's omission of these claims was ineffective. Mitchell does not establish that counsel breached any duties owed to him, or that counsel's judgment was unreasonable under the circumstances or did not fall within the wide range of professional assistance. Mere failure to raise an arguably meritorious claim on appeal does not constitute deficient performance. As Mitchell has not established appellate counsel was ineffective in omitting these claims regarding his statement to police, the substantive claims remain barred and are not reviewed on their merits. The Proposition IV claim of ineffective assistance of trial counsel is barred, and the claim of ineffective assistance of appellate counsel, and this proposition, are denied.

Mitchell finally claims in Proposition V that the cumulative effect of the errors presented require a new trial. The allegations of ineffective assistance of trial counsel are barred, and the allegations of ineffective assistance of appellate counsel are denied. Propositions III and IV are otherwise barred by waiver and res judicata. Proposition II is denied. Proposition I is without merit. As we find no error, Proposition V is denied.

Mitchell also requests an evidentiary hearing and discovery. Mitchell is not entitled to an evidentiary hearing on post-conviction, but this Court may issue any orders necessary to facilitate post-conviction review if we determine that controverted, previously unresolved factual issues material to the legality of the applicant's confinement may exist. ²⁴ We have reviewed the materials presented in support of this request, and find that no controverted, previously unresolved material issues of fact exist. Mitchell's request for an evidentiary hearing is denied.

Discovery is not required in post-conviction...