942 P.2d 229 (Okla.Crim.App. 1997), PC-96-1218, Conover v. State

Docket Nº:PC-96-1218.
Citation:942 P.2d 229
Party Name:Claudie Delbert CONOVER, Petitioner, v. The STATE of Oklahoma, Respondent.
Case Date:July 07, 1997
Court:Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma
 
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Page 229

942 P.2d 229 (Okla.Crim.App. 1997)

Claudie Delbert CONOVER, Petitioner,

v.

The STATE of Oklahoma, Respondent.

No. PC-96-1218.

Court of Criminal Appeals of Oklahoma.

July 7, 1997.

Page 230

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

No response necessary from the State.

OPINION DENYING APPLICATION FOR POST-CONVICTION RELIEF,

EVIDENTIARY HEARING AND DISCOVERY

LUMPKIN, Judge.

Petitioner Claudie Delbert Conover was convicted of First Degree Murder (21 O.S.1991, § 701.7), Case No. CRF-94-302, in the District Court of Ottawa County. The jury found the existence of three aggravating circumstances and recommended the punishment of death. We affirmed the murder conviction but remanded the case to the District Court for resentencing. Conover v. State, 933 P.2d 904 (Okl.Cr.1997). Petitioner filed his Original Application for Post-Conviction Relief in this Court on November 21, 1996, in accordance with 22 O.S.Supp.1995, § 1089.

Before considering Petitioner's claims, we must again consider the narrow scope of review available under the amended Post-Conviction Procedure Act. As we have said numerous times, the Post-Conviction Procedure Act was neither designed nor intended to provide applicants another direct appeal. Walker v. State, 933 P.2d 327, 330 (Okl.Cr.1997) (interpreting Act as amended); Fox v. State, 880 P.2d 383, 384 (Okl.Cr.1994), cert. denied, 514 U.S. 1005, 115 S.Ct. 1318, 131 L.Ed.2d 199 (1995) (same conclusion under Act before amendments). The Act has always provided petitioners with very limited grounds upon which to base a collateral attack on their judgments. Accordingly, claims which could have been raised in previous appeals but were not are generally waived; and claims raised on direct appeal are res judicata. Thomas v. State, 888 P.2d 522, 525 (Okl.Cr.1994), cert. denied, 516 U.S. 840, 116 S.Ct. 123, 133 L.Ed.2d 73 (1995); Castro v. State, 814 P.2d 158, 159 (Okl.Cr.1991), cert. denied, 502 U.S. 1063, 112 S.Ct. 947, 117 L.Ed.2d 116 (1992).

These procedural bars still apply under the amended Act. We have noted the new Act makes it even more difficult for capital post-conviction applicants to avoid procedural bars. Walker, 933 P.2d at 331. Under 22 O.S.Supp.1995, § 1089(C)(1), only claims which "[w]ere not and could not have been

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raised" on direct appeal will be considered. A capital post-conviction claim could not have been raised on direct appeal if (1) it is an ineffective assistance of trial or appellate counsel claim which meets the statute's definition of ineffective counsel; or (2) the legal basis of the claim was not recognized or could not have been reasonably formulated from a decision of the United States Supreme Court, a federal appellate court or an appellate court of this State, or is a new rule of constitutional law given retroactive effect by the Supreme Court or an appellate court of this State. 22 O.S.Supp.1995, §§ 1089(D)(4)(b), 1089(D)(9). Should a Petitioner meet this burden, this Court shall consider the claim only if it "[s]upports a conclusion either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent." 12 O.S.Supp.1995, § 1089(C)(2). As we said in Walker,

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, 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 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.

Walker, 933 P.2d at 331 (footnote omitted, emphasis in original). We now turn to Petitioner's claims.

Initially, we note that all claims pertaining to the sentencing stage of trial are now moot as a result of this Court's decision in the direct appeal to remand the case for resentencing. This includes a portion of proposition of error number one, wherein Petitioner claims he was denied the effective assistance of trial counsel by counsel's failure to investigate and prepare for the second stage of trial, by counsel's failure to present mitigating evidence, and by counsel's failure to present evidence to rebut the "continuing threat" aggravator; and proposition number three, wherein Petitioner contends he was denied his right to sentencing by an impartial jury as one of the jurors had a prior felony conviction which was not revealed to the court until after Petitioner had been found guilty. Also included as moot are propositions of error number four, wherein Petitioner asserts that collateral information provides further support for his claim that the jury was not properly instructed, and as a result he was denied a reliable sentencing; and number seven, wherein Petitioner contends he was denied a fair second stage proceeding when the jury decided to impose the death sentence prior to the beginning of second stage deliberations.

Turning to the propositions of error addressing the first stage of trial, Petitioner claims in his first proposition 1 that he was denied the effective assistance of trial counsel. Petitioner asserts trial counsel was ineffective in the following ways: failing to investigate and prepare for the first stage of trial, failing to request a voluntary intoxication instruction, and by failing to present evidence of Petitioner's mental state and intoxication to support his request for the lesser included instruction of manslaughter.

The issue of ineffective assistance of trial counsel was not raised on direct appeal. In Walker, we said an ineffective assistance of trial counsel claim could not have been raised on direct appeal if it requires "factfinding outside the direct appeal record." Id. at 332 (quoting 22 O.S.Supp.1995, § 1089(D)(4)(b)(1)). "Stated in prohibitive

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terms, this Court may not review [Petitioner's] post-conviction claims of ineffective assistance of trial counsel if the facts generating those claims were available to [Petitioner's] direct appeal counsel and thus either were or could have been used in his direct appeal." Id. (emphasis added). We made it clear that the mere absence of these claims from the direct appeal record was not sufficient: the claim would still be waived if "the facts contained in them were available to his direct appeal attorney and thus could have been argued on direct appeal." Id. Here, the information was available to direct appeal counsel. Petitioner has presented nothing to this Court showing that additional evidence regarding his mental health was not available to direct appeal counsel. Because the basis for this claim does not require factfinding outside the scope of information available to his attorney at the time of direct appeal, this claim is waived, and his first proposition of error is denied.

For his second proposition of error, Petitioner alleges he was denied the effective assistance of appellate counsel. Essentially, he argues that appellate counsel, the Oklahoma Indigent Defense System, was unable to present a claim on direct appeal of ineffective assistance of trial counsel due to serious understaffing, overworked attorneys and investigators, and insufficient funds. Petitioner asserts that due to insufficient time and resources, the investigation into this claim could not have been completed prior to the deadline for filing the brief in chief. Petitioner states that counsel attempted three separate times to get the claim before this Court, but each attempt was denied. 2

In Walker, we set forth a three-prong test to review claims of ineffective assistance of appellate counsel. 3 Under this analysis, (1) the threshold inquiry is whether appellate counsel actually committed the act which gave rise to the ineffective assistance allegation. If a petitioner establishes appellate counsel actually did the thing supporting the allegation of ineffectiveness, this Court then (2) determines whether the performance was deficient under the first of the two-pronged test in Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). If this burden is met, (3) this Court then considers the mishandled substantive claim, asking whether the deficient performance supports a conclusion "either that the outcome of the trial would have been different but for the errors or that the...

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