Neill v. State

• Citation: 943 P.2d 145
• Decision Date: 25 July 1997
• Docket Number: No. PC-96-1324,PC-96-1324
• Parties: 1997 OK CR 41 Jay Wesley NEILL, Petitioner, v. The STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 145

943 P.2d 145

1997 OK CR 41

Jay Wesley NEILL, Petitioner, v. The STATE of Oklahoma, Respondent.

No. PC-96-1324.

Court of Criminal Appeals of Oklahoma.

July 25, 1997.

Jeremy B. Lowrey, Terri L. Marroquin, 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 Jay Wesley Neill was convicted of four counts of First Degree Murder (21 O.S.1981, § 701.7), three counts of Shooting with Intent to Kill (21 O.S.1981, § 652), and one count of Attempted Shooting with Intent to Kill (21 O.S.1981, § 652), Case No. CRF-84-597, in the District Court of Comanche County. The jury found the existence of three aggravating circumstances and recommended the punishment of death for each murder count. The trial court sentenced accordingly. We affirmed the judgments and sentences. Neill v. State, 896 P.2d 537 (Okl.Cr.1994). The United States Supreme Court subsequently denied certiorari. Neill v. Oklahoma, 516 U.S. 1080, 116 S.Ct. 791, 133 L.Ed.2d 740 (1996). Petitioner filed his Original Application for Post-Conviction Relief in this Court on October 23, 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 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]upport[s] a conclusion either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent." 22 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.

In four of the nine propositions of error raised, Petitioner challenges the effectiveness of trial counsel. Petitioner asserts in his first proposition of error that he was denied his right to due process, his right to trial by jury, and his right to effective assistance of counsel under the 6th, 8th, and 14th Amendments to the United States Constitution, as a result of invalid waivers relating to a continuance of trial proceedings, invalid waivers relating to presentation of a defense on first stage issues; and effective assistance of counsel in preparation for second stage proceedings, and advising Petitioner concerning the waivers in question. Further, he claims that any waivers made were not knowingly and voluntarily made. In his second proposition of error, Petitioner contends he was denied his right to an impartial jury capable of considering all penalty options, when as a result of the failure of both the trial court and trial counsel to conduct an examination on the issue with several jurors, jurors who would automatically impose the death penalty were permitted to remain on the jury panel.

In his third proposition of error, Petitioner asserts the prosecutor impermissibly commented on Petitioner's right to remain silent, impermissibly and incorrectly instructed the jury repeatedly that it could not consider mitigating circumstances, attempted to inflame the passions of the jury by referring to the fact that Petitioner is a homosexual, threatened that Petitioner would receive another new trial if the jury could not agree on the death penalty, and committed other misconduct. He contends these actions by the prosecution deprived him of his rights under the 5th, 6th, 8th, and 14th Amendments to the United States Constitution, and deprived him of a trial by an impartial and unbiased tribunal properly instructed as to the law of the case. Petitioner argues that as most of these instances of prosecutorial misconduct were not objected to at trial, the fundamental basis of this claim is in the context of ineffective assistance of counsel. In his fifth proposition of error, Petitioner asserts that trial counsel was ineffective as a result of the failure to request a change of venue despite clear evidence that the community in which Petitioner was being tried had been saturated with negative press coverage, as well as discussion and opinion regarding Petitioner's prior proceedings. As a result, Petitioner contends he was deprived of his rights under the 6th, 8th, and 14th Amendments to the United States Constitution.

Petitioner admits that none of these issues nor the issue of ineffective assistance of trial counsel were raised on direct appeal. He asserts that the issues could not have been raised because appellate counsel was second chair trial counsel. He argues that for counsel to have raised the issues would have required an analysis of his own performance at trial. Petitioner further asserts that to the extent this Court determines that any claims should have been raised on direct appeal, the failure to do so constituted ineffective assistance of appellate counsel.

Under 22 O.S.Supp.1995, § 1089(D)(4)(b)(1), the only reason a claim of ineffective assistance of trial counsel claim cannot be raised on direct appeal is if it "requires factfinding outside the direct appeal record". See also Walker, 933 P.2d at 332. "Stated in prohibitive 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 attorney and thus either were or could have been used in his direct appeal." Id. 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. No exception is made in the statute for the situation where trial counsel and appellate counsel are the same. Therefore, as the information forming the basis of the above claims was available to direct appeal counsel ¹, and as Petitioner has failed to show that appellate counsel could not have obtained the information in question for purposes of raising the issues on appeal, Petitioner's claim of ineffective assistance of trial counsel is waived because it could have been raised on direct appeal but was not. ² Because the basis for this claim does not require factfinding outside the scope of information available to counsel at the time of the direct appeal, this claim is waived, and Petitioner's first, second, third and fifth propositions of error are denied insofar as they pertain to ineffective assistance of trial counsel.

Reviewing these claims only within the context of ineffective assistance of appellate counsel, the threshold inquiry is met--the claims were not raised on direct appeal. Walker, 933 P.2d at 333. ³ We now must determine if counsel's performance was deficient under the first of the two-pronged test in Strickland v. Washington, 466 U.S. 668, 677-78, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Under this standard the analysis is whether "counsel's performance was deficient under prevailing professional norms."

Petitioner presents no facts specifically supporting his allegation that direct appeal counsel was ineffective for omitting the above issues. Instead he argues that the ineffectiveness of trial counsel was so pervasive that failure to challenge Petitioner's trial representation in appeal proceedings was a failure to adequately represent him at the...