Douglas v. State

• Decision Date: 23 January 1998
• Docket Number: No. PC-97-659,PC-97-659
• Citation: 953 P.2d 349,1998 OK CR 12
• Parties: 1998 OK CR 12 Yancey Lyndell DOUGLAS, Petitioner, v. STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 349

953 P.2d 349

1998 OK CR 12

Yancey Lyndell DOUGLAS, Petitioner, v. STATE of Oklahoma, Respondent.

No. PC-97-659.

Court of Criminal Appeals of Oklahoma.

Jan. 23, 1998.

Judith G. Menadue, Capital Post Conviction Division, Oklahoma Indigent Defense System, Norman, for Petitioner.

OPINION DENYING APPLICATION FOR POST-CONVICTION RELIEF AND REQUESTS FOR AN EVIDENTIARY HEARING AND DISCOVERY

STRUBHAR, Vice Presiding Judge:

¶1 Yancey Lyndell Douglas, Petitioner, was tried by jury in the District Court of Oklahoma County, Case No. CF-93-3926, before the Honorable Virgil C. Black, District Judge, and convicted of Murder in the first degree ¹ for the death of Shauna Farrow. ² The jury found two (2) aggravating circumstances, ³ recommended death and the trial court sentenced Douglas accordingly. Douglas appealed his Judgment and Sentence to this Court and we affirmed. Douglas v. State, 1997 OK CR 79, 951 P.2d 651 (Okl.Cr.1997).

¶2 On September 15, 1997, Douglas filed in this Court an original application for post-conviction relief together with requests for discovery and an evidentiary hearing. ⁴ 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, 1997 OK CR 10, 935 P.2d 332, 333-34, cert. denied, --- U.S. ----, 117 S.Ct. 2489, 138 L.Ed.2d 996 (1997) (footnotes omitted). Based on the foregoing precepts, we will not review the claims raised in Propositions I, ⁵ II, ⁶ III, ⁷ IV, ⁸ V, ⁹ VI, ¹⁰ IX ¹¹ because these claims are waived, i.e. the claims could have been raised on direct appeal but were not or because the claims were addressed on direct appeal and are barred by res judicata.

¶3 In his first proposition, Douglas argues he was denied his right to the effective assistance of trial counsel because his trial attorney was deficient in the following ways: counsel failed to secure and present key defense witnesses who were present at or near the time of the shooting; counsel allowed professional obligations and personal issues to interfere with the defense of Douglas; counsel failed to obtain expert testimony to rebut the State's allegation of continuing threat due to lack of funds; counsel allowed his financial relationship with Douglas' father to improperly influence his examination of him; counsel failed to withdraw when it became evident that he was a necessary witness to the defense; counsel failed to properly advise and consult with his client; counsel engaged in unethical conduct which destroyed his credibility with the jury; counsel failed to adequately investigate, develop and present available relevant evidence; counsel failed to consult with necessary experts; counsel failed to litigate motions to prevent admission of prejudicial gang evidence; counsel opened the door to character evidence; counsel failed to request a continuance when he learned a key witness had moved and could not be located; counsel failed to request second degree murder instructions; counsel failed to prevent jurors from hearing inflammatory evidence; counsel failed to investigate and prepare mitigating evidence; counsel failed to ensure the jury was properly instructed; and, counsel failed to adequately object to trial errors, request appropriate admonitions, move for mistrial and otherwise preserve error.

¶4 Douglas' allegation of ineffective assistance of trial counsel does not depend on facts outside the record on appeal as that phrase is construed by this Court. "[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 v. State, 1997 OK CR 3, 933 P.2d 327, 332, cert. denied, --- U.S. ----, 117 S.Ct. 2524, 138 L.Ed.2d 1024 (1997). While some of the facts in support of this claim are not in the direct appeal record, there is no evidence these facts were not available on direct appeal. Because Douglas' ineffective assistance of trial counsel claim does not turn on facts unavailable at the time of his direct appeal, he has failed to meet the pre-conditions for review of his claim on the merits and therefore review of the claim is barred. Id.

¶5 Douglas also claims that he was denied his right to the effective assistance of appellate counsel. Douglas complains that counsel failed to ensure a complete record was filed on appeal and failed to properly raise and preserve meritorious issues. Specifically, Douglas argues appellate counsel was deficient because she failed to raise the substantive claims raised in Propositions II, III, IV, V, VI and IX ¹² in addition to a claim that trial counsel was ineffective based on the deficiencies alleged in proposition one.

¶6 "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. We analyze appellate counsel ineffectiveness claims using the three-tiered scheme set forth in Walker, 933 P.2d at 333.

¶7 The record reveals that appellate counsel failed to raise the portions of the substantive claims in Propositions I, II, III, IV, V, VI and IX that were not addressed on direct appeal. ¹³ As such Douglas has satisfied our threshold inquiry and established that appellate counsel actually committed the conduct giving rise to the allegations of ineffective assistance of appellate counsel. McGregor, 935 P.2d at 336. We thus reach the next level of inquiry, which is whether appellate counsel's omission of these claims constituted deficient performance of appellate counsel. Walker, 933 P.2d at 335.

¶8 A review of this record shows Douglas has failed to set forth sufficient facts and law which would enable us to assess counsel's allegedly deficient performance. Douglas 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. McGregor, 935 P.2d at 336. Instead, Douglas sets out arguments supporting his substantive claims, and reasons that appellate counsel must have been ineffective because she failed to raise these arguably meritorious issues. We have held that 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. Id. Because Douglas has not shown that counsel's conduct on direct appeal was ineffective, his substantive claims remain procedurally barred and will not be considered on their merits. Id. Accordingly, these ineffective assistance of appellate counsel allegations are denied.

¶9 In his seventh proposition of error, Douglas claims he is being denied an adequate appellate and corrective collateral review process. He essentially challenges the constitutionality of the recent amendments to the Post-Conviction Procedure Act. He claims the new post-conviction scheme, both on its face and as construed by this Court, denies applicants due process, equal protection and equal and adequate access to the courts. We have consistently rejected this constitutional attack on Oklahoma's current capital post-conviction procedure and we are not persuaded by Douglas' argument to hold otherwise. Mitchell v. State, 1997 OK CR 9, 934 P.2d 346, 349, cert. denied, --- U.S. ----, 117 S.Ct. 2489, 138 L.Ed.2d 996 (1997); Rogers v. State, 1997 OK CR 7, 934 P.2d 1093, 1096.

¶10 Douglas also argues that this Court's decision in Walker rendered appellate counsel ineffective because it imposed new duties and responsibilities on appellate counsel in capital cases. Douglas asks this Court to remand this matter for an evidentiary hearing on the issues of (1) the professional standard of care for appellate counsel in capital cases at all times pertinent to this case; (2) the resources available to Douglas' appellate counsel at times pertinent to this case; (3) the scope of appellate counsel's investigation beyond the physical appellate records and the feasibility of any investigation beyond those confines; and (4) what would constitute a "reasonable investigation" during the time that appellate counsel was preparing Douglas' briefs on direct appeal. As in Bryan, Douglas essentially wants an evidentiary hearing to determine the effects on his case of a procedural change in the law. Because this is not an appropriate issue for an evidentiary hearing, the request is denied. Bryan v. State, 1997 OK CR 69, 948 P.2d 1230, 1235 (Okl.Cr.1997).

¶11 In his eighth proposition of error, Douglas claims Oklahoma's clemency process denies death sentenced petitioners procedural due process. This is not a claim cognizable under the Post-Conviction Procedure Act. 22 O.S.Supp.1995, § 1089. Accordingly, this proposition is denied.

¶12 In his tenth proposition of error, Douglas asks this Court to adopt the American Bar...