LaFevers v. State

Citation934 P.2d 356,1997 OK CR 8
Decision Date25 February 1997
Docket NumberNo. PC-96-768,PC-96-768
Parties1997 OK CR 8 Loyd Winford LaFEVERS, Petitioner, v. The STATE of Oklahoma, Respondent.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Don J. Gutteridge, Jr., Oklahoma City, on Appeal, for Petitioner.

ORDER DENYING APPLICATION FOR POST-CONVICTION RELIEF AND

APPLICATION FOR EVIDENTIARY HEARING

CHAPEL, Presiding Judge:

Loyd Winford LaFevers was tried by jury before the Honorable Thomas C. Smith in the District Court of Oklahoma County. In Case No. CRF-85-3254 he was convicted of First Degree Malice Aforethought Murder in violation of 21 O.S.1991, Sec. 701.7, and Third Degree Arson in violation of 21 O.S.1981, Sec. 1403(A), After Former Conviction of a Felony. 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) there was a probability that LaFevers would commit criminal acts of violence that would constitute a continuing threat to society; and 3) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution. LaFevers was sentenced to death for the murder conviction and forty years incarceration for arson. LaFevers appealed his judgments and sentences to this Court and we affirmed. 1 This Court denied LaFevers' petition for rehearing and the United States Supreme Court denied LaFevers' petition for certiorari. 2

On June 26, 1996, LaFevers 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 in post-conviction are those which: "(1) [w]ere not or 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 LaFevers' propositions which are barred by waiver or res judicata. 9

LaFevers raises ineffective assistance of trial counsel claims in Propositions I, IV and VI. Ineffective assistance of trial counsel claims raised in capital post-conviction appeals are properly before this Court only if they require fact-finding outside the direct appeal record. 10 LaFevers has provided the Court with affidavits to support his claim that his ineffective assistance of trial counsel allegations meet this prerequisite to review. 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 to the district court for a hearing. 11

In Proposition I, Lafevers claims trial counsel was ineffective for the following reasons: (1) he failed to present a substance abuse screening inventory and affidavit of Dr. Ferguson; (2) he failed to present statements, obtained by counsel's investigator, in which two inmates at McAlester Prison say Cannon took primary responsibility for the crimes of which he and LaFevers were convicted; and (3) he failed to order DNA testing on clothing introduced at trial. In Proposition IV, LaFevers claims that trial counsel's alleged advice that LaFevers plead nolo contendere to robbery, kidnapping, and assault (based on other conduct directed against the victim the night of the murder) was deficient. Finally, in Proposition VI, LaFevers claims that trial counsel was ineffective for failing to introduce expert evidence to rebut the State's allegation that he would be a continuing threat to society.

LaFevers admits that some of this material was available to the Court, and that some of it was even discussed in the opinion on direct appeal. As for the remainder of the claims, LaFevers has failed to establish that they require fact-finding outside the direct appeal record. These allegations are either barred by res judicata, or require no fact-finding outside the direct appeal record. Accordingly, they are not properly before this Court. The ineffective assistance of trial counsel allegations contained in Propositions I, IV and VI are denied.

LaFevers claims in Proposition V that appellate counsel was ineffective for failing to raise the issues claimed as error in Propositions II and IV. A claim of ineffective assistance of appellate counsel is properly before us if the Court finds that if the allegations of ineffectiveness were true, the performance of appellate counsel would constitute the denial of reasonably competent assistance of appellate counsel under prevailing professional norms. 12 We examine ineffective assistance of appellate counsel claims using a three-tiered procedural scheme. 13 We first determine whether a petitioner has established 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 counsel did not raise the issues of DNA testing and LaFevers' nolo plea to non-capital charges on direct appeal. LaFevers has thus met his threshold burden to prove that appellate counsel actually committed the conduct giving rise to the allegations of ineffective assistance. We now determine whether counsel's omission of these claims constituted deficient performance. LaFevers does not establish that counsel breached any duties owed him, or that counsel's judgment was unreasonable under the circumstances or did not fall within the wide range of professional assistance. 14 LaFevers instead reasons that these claims were arguably meritorious, and suggests that an attorney who omits meritorious appellate claims is ineffective. On the contrary, such a conclusory allegation will never itself support a finding that counsel's performance was deficient. 15 As LaFevers has not established that appellate counsel's conduct was deficient, his substantive claims remain procedurally barred and will not be considered on the merits. Proposition V is denied.

LaFevers has also requested an evidentiary hearing on the Proposition I issues of Dr. Ferguson's affidavit, the inmate statements, and DNA testing. 16 Should this Court determine that controverted, previously unresolved factual issues material to the legality of the applicant's confinement may exist, we may issue any orders necessary to facilitate post-conviction review. 17 We have reviewed the materials presented in support of this request, and find that LaFevers is not entitled to an evidentiary hearing.

We have carefully reviewed LaFevers' applications for post-conviction relief and an evidentiary hearing, and find that LaFevers is not entitled to relief. The Application for Post-Conviction Relief and Application for an Evidentiary Hearing are DENIED.

STRUBHAR, V.P.J., and LANE and JOHNSON, JJ., concur.

LUMPKIN, J., concurs in result.

LUMPKIN, Judge, concurring in result:

I concur, based on stare decisis, in the discussion dealing with ineffective counsel. See Walker v. State, 933 P.2d 327, 341 (Lumpkin, J., concur in results). I also write separately to further discuss briefly the so-called first "prong" of the test this Court uses for ineffective counsel in post-conviction proceedings.

This case, together with the other cases applying the Walker methodology, graphically illustrates the point I made in Walker. Simply requiring a petitioner show "appellate counsel actually committed the act which gave rise to the ineffective assistance allegation," Walker at 333, is in reality--at least on the surface--no requirement at all, and does nothing to differentiate one case from another. As I do not believe this Court actually committed time and resources toward the formulation of a test, the first part of which is essentially worthless, I must conclude there is more to this first "prong" than meets the eye. There must be more of a requirement to satisfy the prong than merely allowing post-conviction counsel to raise it in the brief. 1 For instance, the prong would have more meaning if a petitioner were required to show, in connection with the ineffective counsel allegation, that some objective factor external to the defense prevented counsel from raising the claim in the direct appeal or in a timely motion for new trial. See, e.g., McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991); Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).

I need not get into an extensive discussion at this point. Suffice it to say here that, as more cases are presented to this Court, it may become necessary to elucidate with more precision exactly what requirements must be met to satisfy the first prong of this new test.

3 22 O.S.Supp.1995, § 1089 provides that an original application for post-conviction relief shall be filed with this Court rather than the District Court in which the case was tried. The revised capital post-conviction procedures do not require that the State respond to the original Application, and no State response was filed.

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    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • June 16, 1999
    ...v. State, 897 P.2d 292 (Okla. Crim. App. 1995), and denied Mr. LaFevers' application for post-conviction relief, see LaFevers v. State, 934 P.2d 356 (Okla. Crim. App. 1997). Subsequently, Mr. LaFevers filed a petition for a writ of habeas corpus in the United States District Court for the W......
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    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
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    ...104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984).13 Walker, 933 P.2d 327; Hooker v. State, 934 P.2d 352 (Okl.Cr.1997); LaFevers v. State, 934 P.2d 356 (Okl.Cr.1997); Mitchell v. State, 934 P.2d 346 (Okl.Cr.), cert. denied, --- U.S. ----, 117 S.Ct. 2489, 138 L.Ed.2d 996 (1997); McGregor, 935......
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    ...claim because Petitioner has cited a Federal District Court case; such cases are not binding on this Court. See, LaFevers v. State, 934 P.2d 356, 358 n. 9 (Okl.Cr.1997) (this Court will not reconsider its position on an issue based on a federal district court decision which is not binding o......
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