947 P.2d 559 (Okla.Crim.App. 1997), PC-96-1570, Sallahdin v. State
| Docket Number | PC-96-1570. |
| Citation | 947 P.2d 559 |
| Date | 08 October 1997 |
| Parties | Sharieff Imanu Mukatla Abdur-Rahim SALLAHDIN, (Formerly Michael Pennington), Petitioner, v. The STATE of Oklahoma, Respondent. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Page 559
Page 560
OPINION DENYING APPLICATION FOR POST-CONVICTION RELIEF AND
REQUESTS FOR AN EVIDENTIARY HEARING AND DISCOVERY
JOHNSON, Judge.
Petitioner, Sharieff Sallahdin (formerly Michael Pennington), was tried by a jury in the District Court of Comanche County, Case No. CRF-91-386, before the Honorable Peter Clinton Moore. Petitioner was convicted of First Degree Malice Aforethought Murder. The jury found Petitioner guilty and sentenced him to death after finding three aggravating circumstances. The trial court sentenced Petitioner accordingly on September 17, 1993. On direct appeal in Case No. F-93-968, Petitioner's conviction and sentence were affirmed. Pennington v. State, 913 P.2d 1356 (Okl.Cr.1995), cert. denied, 519 U.S. 841, 117 S.Ct. 121, 136 L.Ed.2d 72 (1996). A Petition for Rehearing was filed on January 17, 1996. This Petition was denied on April 26, 1996.
On January 15, 1997, Petitioner filed an initial application for postconviction relief together with requests for discovery and an evidentiary hearing with this Court. 1 The issues that may be raised as well as our scope of review in this matter are narrowly defined as follows:
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. 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.... This Court will not consider an issue which was raised on direct appeal and is therefore barred by res judicata, nor will we consider an issue which has been waived because it could have been raised on direct appeal but was not.
McGregor v. State, 935 P.2d 332, 333-334 (Okl.Cr.), cert. denied, 521 U.S. 1108, 117 S.Ct. 2489, 138 L.Ed.2d 996 (1997)[footnotes omitted]. Based upon the foregoing, we will not consider the claims raised in Petitioner's first through eighth and tenth propositions of error because they either were raised on
Page 561
direct appeal and are now barred by res judicata, or could have been raised on direct appeal and are now waived. 2
Petitioner begins the argument section of his Post-Conviction Application with a preliminary complaint regarding Oklahoma's Capital Post-Conviction regime. He asserts that Oklahoma's Capital Post-Conviction regime, on its face and as applied, denies adequate and equal access to the courts and deprives Petitioner of due process. Specifically, Petitioner challenges the application of the recent amendments to the Post-Conviction Procedure Act, 22 O.S. § 1089. This Court has consistently rejected constitutional attacks on the current capital post-conviction procedure. Mitchell v. State, 934 P.2d 346, 349 (Okl.Cr.), cert. denied, 521 U.S. 1108, 117 S.Ct. 2489, 138 L.Ed.2d 996 (1997); Rogers v. State, 934 P.2d 1093, 1096 (Okl.Cr.1997); Hatch v. State, 924 P.2d 284, 289-293 (Okl.Cr.1996). Accordingly, this preliminary complaint is denied.
Nonetheless, Petitioner raises 11 distinct propositions of error. Within each allegation of error, Petitioner consistently and without foundation submits that to the extent this Court determines that a claim could have been brought on direct appeal, appellate counsel's failure to raise such claim constitutes ineffective assistance of appellate counsel. We will now address this general allegation.
"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." McGregor, 935 P.2d at 335. Ineffective assistance of appellate claims are analyzed under the scheme set forth in Walker v. State, 933 P.2d 327, 333 (Okl.Cr.), cert. denied, --- U.S. ----, 117 S.Ct. 2524, 138 L.Ed.2d 1024 (1997). Petitioner asserts only a general claim of ineffectiveness of appellate counsel stating that if a claim should have been raised and was not, then counsel must have been ineffective.
Page 562
Petitioner must establish that appellate counsel "breached any duties owed to him, or that [counsel's] judgment was unreasonable under the circumstances or did not fall within the wide range of professional assistance." Walker, 933 P.2d at 336. Here, Petitioner simply asserts that an attorney who omits arguably meritorious appellate claims is always ineffective. Such a conclusory allegation, standing alone, will not support a finding that an attorney's performance was deficient. Id. Accordingly, the diffuse allegations raised by Petitioner are not enough to show the requisite breach of duty and therefore are without merit.
In his ninth proposition of error, Petitioner claims general ineffectiveness of trial counsel due to trial counsel's failure to adequately investigate the defenses available at the time of Petitioner's trial. Specifically, Petitioner alleges that counsel failed to adequately investigate and present the alternative defense of steroid induced psychosis. Further, when his counsel did present the defense of innocence, he did not pursue important leads which supported that defense. In sum, Petitioner argues trial counsel failed to adequately investigate the possible defenses available, present evidence in mitigation, pursue viable leads and request continuances where warranted.
Petitioner's allegation of ineffective assistance of trial counsel depends upon facts outside the record on appeal. "[I]neffective assistance of trial counsel claims are properly raised and may be [reviewed on the merits] on post-conviction only if they are based upon facts which were not available to the applicant's direct appeal attorney and thus could not have been made part of the direct appeal record." Walker, 933 P.2d at 332. While some of the facts in support of this claim are not in the...
To continue reading
Request your trial