962 P.2d 649 (Okla.Crim.App. 1998), PC-97-611, Hain v. State

Docket Nº:PC-97-611.
Citation:962 P.2d 649
Party Name:Scott Allen HAIN, Petitioner, v. STATE of Oklahoma, Respondent.
Case Date:May 01, 1998
Court:Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma
 
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Page 649

962 P.2d 649 (Okla.Crim.App. 1998)

Scott Allen HAIN, Petitioner,

v.

STATE of Oklahoma, Respondent.

No. PC-97-611.

Court of Criminal Appeals of Oklahoma.

May 1, 1998.

Page 650

Robert Wade Jackson, Steven M. Presson, Norman, on appeal.

No response necessary from the State.

OPINION DENYING APPLICATION FOR POST-CONVICTION RELIEF

LUMPKIN, Judge:

¶1 Petitioner Scott Allen Hain was convicted of two counts of First Degree Murder (21 O.S.1981, § 701.7), two counts of Kidnapping (21 O.S.1981, § 741), two counts of Robbery with a Firearm (21 O.S.1981, § 801), one count of Third Degree Arson (21 O.S.1981, § 1403) and two counts of Larceny of an Automobile (21 O.S.1981, § 1720), Case No. CRF-87-240, in the District Court of Creek County. The jury found the existence of three aggravating circumstances and recommended the punishment of death for each murder conviction. In Hain v. State, 852 P.2d 744 (Okl.Cr.1993), this Court reversed with instructions to dismiss the conviction for Robbery with Firearms and affirmed all other convictions. The death sentences imposed for the murder convictions were vacated and the case was remanded to the District Court for new second-stage proceedings. In the retrial of the sentencing stage, the jury found the existence of three aggravating circumstances and recommended the punishment of death for each count of murder. This Court affirmed the death sentences in Hain v. State, 919 P.2d 1130 (Okl.Cr.1996). Petitioner filed his Original Application for Post-Conviction Relief in this Court on September 10, 1997, in accordance with 22 O.S.Supp.1995, § 1089.

¶2 Before considering Petitioner's claims, we must reiterate 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, 230 (Okl.Cr.1997). 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 327, 331 (Okl.Cr.1997). 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).

Page 651

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.

933 P.2d at 331 (footnote omitted, emphasis in original). We now turn to Petitioner's claims. 1

¶3 Propositions I, VIII, IX, X and XII were raised in the direct appeal, therefore further consideration is barred by res judicata. In Proposition I, Petitioner asserts the introduction of gruesome and unfairly prejudicial photographs of the victims violated his Eighth and Fourteenth Amendment rights and deprived him of a fair trial. In Proposition VIII, Petitioner asserts the aggravating circumstance of "continuing threat" was not supported by sufficient evidence and improper instructions were given by the trial court. 2 In Proposition IX he claims the aggravating circumstance of "especially, heinous, atrocious or cruel" failed to provide definite guidance which would limit the discretion of the sentencer and is therefore...

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