McGregor v. State

• Decision Date: 25 February 1997
• Docket Number: No. PC-96-1006,PC-96-1006
• Citation: 1997 OK CR 10,935 P.2d 332
• Parties: 1997 OK CR 10 Billy Keith McGREGOR, Petitioner, v. The STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 332

935 P.2d 332

1997 OK CR 10

Billy Keith McGREGOR, Petitioner, v. The STATE of Oklahoma, Respondent.

No. PC-96-1006.

Court of Criminal Appeals of Oklahoma.

Feb. 25, 1997.

ORDER DENYING APPLICATION FOR POST-CONVICTION RELIEF, AND

MOTION FOR DISCOVERY

CHAPEL, Presiding Judge:

Billy Keith McGregor was tried by jury before the Honorable Gregg Smith in the District Court of Hughes County. In Case No. CRF-85-38 he was convicted of First Degree Murder in violation of 21 O.S.1991, § 701.7(A). 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; and 2) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution. McGregor was sentenced to death for the murder conviction. McGregor appealed his judgments and sentences to this Court and we affirmed. ¹ This Court denied McGregor's petition for rehearing and the United States Supreme Court denied McGregor's petition for certiorari. ²

On August 19, 1996, McGregor filed an Application for Post-Conviction Relief directly with this Court. ³ We narrowly construe the amended post-conviction procedures to give effect to the Legislature's intent to honor the principle of finality of judgment. ⁴ The only issues that can be raised in post-conviction are those which were not or could not have been raised in a direct appeal and support a conclusion either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent. ⁵ On review, this Court must determine whether controverted, previously unresolved factual issues material to the legality of the applicant's confinement exist, whether the applicant's grounds were or could have been previously raised, and whether relief may be granted. ⁶ The Post-Conviction Procedure Act is not intended to provide a second appeal. ⁷ This Court will not consider an issue which was raised on direct appeal and is therefore barred by res judicata, ⁸ nor will we consider an issue which has been waived because it could have been raised on direct appeal but was not. ⁹ We will not address McGregor's propositions which are barred by waiver or res judicata. ¹⁰

In Proposition I McGregor 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. McGregor bases this claim on Cooper v. Oklahoma, ¹¹ 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 have declined to apply Cooper on post-conviction review. ¹² This proposition is denied.

McGregor alleges ineffective assistance of trial counsel in Propositions II, IV and VIII. 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. ¹³ McGregor has provided the Court with affidavits to support his arguments that his claims of ineffective assistance of trial counsel require 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. ¹⁴

In Proposition II McGregor claims trial counsel was ineffective because he failed to apply under Ake v. Oklahoma ¹⁵ for an expert psychiatric witness at State expense to testify at McGregor's post-examination competency trial. In Proposition IV McGregor claims that trial counsel's failure to investigate and present mitigating evidence of conditions existing in the state juvenile system during the 1970's constitutes ineffective assistance. In Proposition VIII McGregor claims trial counsel was ineffective for failing to object to the search of his truck on chain of custody grounds.

McGregor alleges that these claims are properly before this Court because they depend on facts outside the direct appeal record. He supports Proposition II with citation to the trial record and affidavits. In support of Proposition IV he provides a Gannett News Service Report (comprised of articles written in 1982) and references a 1978 lawsuit which alleged that the Department of Human Services engaged in inhumane and unconstitutional treatment of children. In support of Proposition VIII he attaches affidavits from McGregor's friends and family which describe the truck's location and unsecured state prior to the search.

Proposition II does not depend on facts outside the record on appeal. The facts in support of Propositions IV and VIII are certainly not in the direct appeal record. However, the statutory phrase "fact-finding outside the direct appeal record" was never meant to negate the principle of waiver. Counsel was aware that McGregor had been a ward of the court and in juvenile custody during his youth. The persons in possession of the chain-of-custody evidence were known to trial counsel. McGregor shows no reason why counsel could not have raised these claims either at trial or on appeal. The category of items requiring fact-finding outside the direct appeal record does not include those items that trial counsel had the ability to discover. ¹⁶ These claims of ineffective assistance of trial counsel are thus not properly before us and are denied.

McGregor alleges ineffective assistance of appellate counsel in Propositions II, III, V, VI, and VIII. Ineffective assistance of appellate counsel claims are properly before us only 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. ¹⁷ We analyze these claims using a three-tiered procedural scheme. ¹⁸

In Proposition V, McGregor claims appellate counsel was ineffective for failing to raise the following issues: (1) that the competency jury was instructed on the incorrect burden of proof (also raised in Proposition I); (2) that trial counsel failed to obtain expert psychiatric assistance in McGregor's competency trial (also raised in Proposition II); (3) that the trial court erred in failing to conduct a competency hearing sua sponte based on McGregor's inability to assist counsel at trial (also raised in Proposition III); (4) that the trial court erred in admitting evidence obtained from McGregor's truck without a proper chain of custody (also raised as Proposition VIII); and (5) that the search of McGregor's truck was conducted without proper consent (also raised as Proposition VI).

A review of the record reveals that appellate counsel failed to raise the Proposition V issues on direct appeal. ¹⁹ McGregor has thus answered our threshold inquiry and established that appellate counsel actually committed the conduct giving rise to his allegations of ineffective assistance. However, McGregor has failed to set forth facts and law which would enable us to assess counsel's allegedly deficient performance. McGregor offers no facts which show that counsel breached any duty owed to him, or that counsel's judgment was unreasonable under the circumstances or did not fall within the wide range of professional assistance. ²⁰ Instead, McGregor sets out arguments supporting his substantive claims, and reasons that appellate counsel must have been ineffective because he failed to raise these arguably meritorious issues. On the contrary, failure to raise meritorious claims, without some proof that an attorney's omission was professionally deficient, will not support an allegation of ineffective assistance of counsel. ²¹ As McGregor has not shown that counsel's conduct on direct appeal was ineffective, his substantive claims remain procedurally barred and are not considered on their merits. These ineffective assistance of appellate counsel allegations are denied.

McGregor also filed a motion for discovery on August 19, 1996. ²² Discovery is not required in post-conviction proceedings. ²³ 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 McGregor must provide this Court with information showing by clear and convincing evidence that the material sought is likely to have support in law and fact to be relevant to a claim raised in the application for post-conviction. ²⁵

McGregor specifically requests (1) all notes and records of polygraph tests McGregor may have taken regarding this crime or other area disappearances; (2) complete medical and psychiatric records from the Department of Corrections; (3) all prescription records from a Wynnewood pharmacist which refer to McGregor; and (4) the complete Oklahoma State Bureau of Investigation file on McGregor in this and any other cases. McGregor offers no information suggesting that he ever took a polygraph, but claims that even an attempt to take that test could provide exculpatory evidence. This is speculation and does not meet the threshold requirements for a successful discovery claim. McGregor contends his prison psychiatric and medical records are necessary to present his claim under Cooper and claim of ineffective assistance of trial counsel for failure to obtain expert assistance at his competency hearing. We have already determined that neither the Cooper issue nor the claim of ineffective assistance of trial counsel are properly raised. McGregor also claims access to these records is necessary to enable post-conviction counsel to properly represent him on the issue of his mental competency for execution. This question was not raised in the application for post-conviction, and we cannot consider this request under Rule 9.7(D)(5). ...