934 P.2d 356 (Okla.Crim.App. 1997), PC-96-768, LaFevers v. State

Docket Nº:PC-96-768.
Citation:934 P.2d 356
Party Name:Loyd Winford LaFEVERS, Petitioner, v. The STATE of Oklahoma, Respondent.
Case Date:February 25, 1997
Court:Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma
 
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Page 356

934 P.2d 356 (Okla.Crim.App. 1997)

Loyd Winford LaFEVERS, Petitioner,

v.

The STATE of Oklahoma, Respondent.

No. PC-96-768.

Court of Criminal Appeals of Oklahoma.

February 25, 1997.

Page 357

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

Page 358

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

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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...

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