Cargle v. State, PC-96-1584

Citation947 P.2d 584,1997 OK CR 63
Decision Date17 October 1997
Docket NumberNo. PC-96-1584,PC-96-1584
Parties1997 OK CR 63 Marcus L. CARGLE, Petitioner, v. The STATE of Oklahoma, Respondent.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Jeremy B. Lowrey, Terri Lynn Marroquin, Capital Post Conviction Division, Oklahoma Indigent Defense System, Norman, Appellate Counsel, for Petitioner.

No response necessary.

ORDER GRANTING REQUEST TO APPEAR PRO HAC VICE OPINION DENYING
APPLICATION FOR POST-CONVICTION RELIEF, EVIDENTIARY HEARING

AND DISCOVERY

LUMPKIN, Judge.

Petitioner Marcus L. Cargle was convicted in the District Court of Oklahoma County in Case No. CF-93-6982 of Counts I and II, Murder in the First Degree (21 O.S.1991, § 701.7(A)); and Count III, Possession of a Firearm After Former Conviction of a Felony (21 O.S.Supp.1992, § 1283). For the weapons charge he received a sentence of ten (10) years. On Count II, the jury found the presence of five aggravating circumstances. On Count I, the jury found four aggravating circumstances. After striking one aggravating circumstance in Count II, we affirmed. Cargle v. State, 909 P.2d 806 (Okl.Cr.1995). His petition for a writ of certiorari to the United States Supreme Court was denied. Cargle v. Oklahoma, 519 U.S. 831, 117 S.Ct. 100, 136 L.Ed.2d 54 (1996). Petitioner filed his Original Application for Post-Conviction Relief in this Court on December 27, 1996, in accordance with 22 O.S.Supp.1995, § 1089.

I.

Before we address the post-conviction application itself, we must address a motion before the Court. Filed along with the Application was a Motion to Permit Entry of Appearance of Terri Lynn Marroquin Pro Hac Vice. Although it may now be moot, 1 that motion was properly filed and is now GRANTED. Rules Creating and Controlling the Oklahoma Bar Association, 5 O.S.1991, Ch.1, App. 1, Art. 2, § 5.

II.

Turning to the Application itself, 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).

Conover v. State, 942 P.2d 229, (Okl.Cr.1997). These procedural bars still apply under the amended Act. The new Act makes it even more difficult for capital post-conviction applicants to avoid procedural bars. Walker, 933 P.2d at 331. Under the revised Act, only claims which "[w]ere not and could not have been raised" on direct appeal will be considered. 22 O.S.Supp.1995, § 1089(C)(1). 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 under the Act; 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 United States 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." Walker, 933 P.2d at 331. 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 the 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). With that dictate in mind, we now turn to Petitioner's claims.

III.

For his first proposition, Petitioner claims the trial court failed to properly instruct as to both the acts and mens rea of the crimes. This claim could have been raised on direct appeal, and is thereby waived. 22 O.S.Supp.1995, § 1089(C).

Petitioner acknowledges this could have been raised on direct appeal, and argues in the alternative either trial counsel was ineffective for failing to raise this during trial, or appellate counsel was ineffective for failing to raise it in the direct appeal.

Concerning ineffective trial counsel, we find we cannot address the issue. Appellant raised the issue of ineffective trial counsel in his direct appeal. Cargle, 909 P.2d at 832-33. Accordingly, it is res judicata. 22 O.S.Supp.1995, § 1089(C)(1). See also Smallwood v. State, 937 P.2d 111, 115 n. 3 (Okl.Cr.1997); id. at 119 (Lumpkin, J., concurring in result).

Additionally, even if the content of the argument here is different than it was on direct appeal, we still cannot address it. As we said in Walker, "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. 933 P.2d at 332 (quoting 22 O.S.Supp.1995, § 1089(D)(4)(b)(1)). "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. Clearly here, the instructions were part of the direct appeal record. Accordingly, this complaint is also waived.

Petitioner next claims appellate counsel was ineffective for failing to raise this issue in his direct appeal. In Walker, we set forth a three-prong test to review claims of ineffective appellate counsel. 2 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, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (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 defendant is factually innocent." Walker, 933 P.2d at 333 n. 25 (quoting 22 O.S.Supp.1995, § 1089(C)(2)).

Here, it appears direct appeal counsel did in fact make an argument of ineffective trial counsel. Accordingly, Petitioner cannot pass the first threshold, as he cannot prove that direct appeal counsel failed to commit the act complained of, i.e., make an ineffective trial counsel argument. Accordingly, he cannot prove appellate counsel was ineffective.

Even assuming he did fail to commit the action now complained of, he has made no effort to show appellate counsel breached a duty owed to him, or that appellate counsel's judgment was "unreasonable under the circumstances or did not fall within the wide range of professional assistance" owed to a client by an attorney. Walker, 933 P.2d at 337. Furthermore, Petitioner fails to show any external impediment which precluded counsel from raising the issue. Conover, 942 P.2d at 233. This assignment of error is res judicata and waived.

In his second claim, Petitioner contends trial counsel was ineffective. He contends his attorney failed either to investigate or prepare for trial and was obviously unprepared for trial; failed to present evidence that would have called into question the truthfulness of key prosecution witnesses; failed to challenge police misrepresentation of the facts; failed to present evidence showing Petitioner was physically unable to commit the crimes; and failed to investigate or present mitigating evidence. He claims a "significant" portion of this evidence relies on evidence outside the direct appeal record.

We disagree. The question is not whether the evidence was outside the direct appeal record, but whether "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." Conover, 942 P.2d at 232 (quoting Walker, 933 P.2d at 332). Facts which were not in the direct appeal record here could have been discovered by direct appeal counsel.

Not surprisingly, Petitioner also argues that if we deem this proposition waived, he had ineffective appellate counsel. Again, Pet...

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  • Cargle v. Mullin, No. 01-6027.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
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    ...P.2d 806 (Okla.Crim.App.1995), and subsequently denied post-conviction relief almost entirely on waiver grounds, see Cargle v. State, 947 P.2d 584 (Okla.Crim.App.1997). Petitioner timely filed a petition for a writ of habeas corpus under 28 U.S.C. § Of the many claims asserted in the petiti......
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    ...the Capital Post-Conviction Relief statutes and since its enactment. See Castro v. State, 814 P.2d 158, 159 (Okl.Cr.1991); Cargle v. State, 947 P.2d 584 (Okl.Cr.1997). Further, Petitioner asserts that "post-conviction petitioners are apparently now to bear the procedural penalties wrought b......
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    • 10 Marzo 1998
    ...the Death Post-Conviction Relief statutes and since its enactment. See Castro v. State, 814 P.2d 158, 159 (Okl.Cr.1991); Cargle v. State, 947 P.2d 584 (Okl.Cr.1997). Further, in the argument and authorities section of Proposition VII, Petitioner asserts that "post-conviction petitioners are......
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    • 24 Marzo 1998
    ...of the Death Post-Conviction Relief statutes and since its enactment. See Castro v. State, 814 P.2d 158 (Okl.Cr.1991); Cargle v. State, 947 P.2d 584 (Okl.Cr.1997). Further, in Subpart B of the Motion for Evidentiary Hearing, Petitioner asserts that "post-conviction petitioners are now to fo......
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