Braun v. State

• Decision Date: 24 April 1997
• Docket Number: No. PC-96-1296,PC-96-1296
• Citation: 937 P.2d 505,1997 OK CR 26
• Parties: 1997 OK CR 26 Gregg Francis BRAUN, Petitioner, v. The STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 505

937 P.2d 505

1997 OK CR 26

Gregg Francis BRAUN, Petitioner, v. The STATE of Oklahoma, Respondent.

No. PC-96-1296.

Court of Criminal Appeals of Oklahoma.

April 24, 1997.

Benjamin McCullar, Law Firm of Randy C. Parsons, Shawnee, for Petitioner on appeal.

No response necessary.

OPINION DENYING APPLICATION FOR POST-CONVICTION RELIEF,

EVIDENTIARY HEARING AND DISCOVERY

LUMPKIN, Judge.

Petitioner Gregg Francis Braun pled nolo contendere to Count I, Murder in the First Degree (21 O.S.Supp.1989, § 701.7(A or B)); Count II, Shooting with Intent to Kill (21 O.S.Supp.1987, § 652); Count III, Shooting with Intent to Kill (21 O.S.Supp.1987, § 652); Count IV, Robbery with Firearms (21 O.S.Supp.1982, § 801); and Count V, Robbery with Firearms (21 O.S.Supp.1982, § 801) in Carter County Case No. CRF-89-332. The Honorable Thomas S. Walker, District Judge, sentenced Petitioner to twenty-five (25) years on each robbery count and life on each count of Shooting with Intent to Kill. After finding the presence of three aggravating circumstances, the trial court sentenced Petitioner to death for the murder. We affirmed. Braun v. State, 909 P.2d 783 (Okl.Cr.1995). His petition for a writ of certiorari to the United States Supreme Court was denied. Braun v. Oklahoma, 517 U.S. 1144, 116 S.Ct. 1438, 134 L.Ed.2d 559 (1996). Petitioner filed his Original Application for Post-Conviction Relief in this Court on October 18, 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 (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 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 330-31. 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 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 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]upports a conclusion either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent." As we said in Walker,

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).

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). With that dictate in mind, we now turn to Petitioner's claims.

For his first proposition, Petitioner claims the Information charging him was fatally defective. This claim centers around language in the charging Information he claims deprived the district court of jurisdiction. This claim could have been raised on direct appeal, and is thereby waived.

Petitioner acknowledges his analysis rests on decisions of this Court which have been overturned. See Parker v. State, 917 P.2d 980, 985-86 (Okl.Cr.1996) (overruling Miller v. State, 827 P.2d 875 (Okl.Cr.1992) and other cases which held language defects in an information went to the jurisdiction of the district court). Petitioner acknowledges this, but claims in a second section of the proposition that his case was pending on appeal before Parker was handed down; and to apply Parker retroactively to him violates principles of due process and ex post facto. We need not address this complaint at this juncture, as it is a moot point: how we would have addressed a claim is immaterial if that same claim is waived and cannot be addressed.

A third section of his first claim alleges this Court violated his right to due process by not addressing his claim sua sponte during his direct appeal. In support of this assertion, Petitioner cites cases where this Court sua sponte invoked jurisdiction. ¹ However, Petitioner has cited nothing to this Accordingly, Petitioner's first assignment of error is waived, and this Court cannot address it. ²

Court requiring it to search the books for every conceivable assignment of error which may be presented when an appellate brief is properly filed. To the contrary, such is not our duty. See 22 O.S.Supp.1996, Ch. 18, App. Rules of the Court of Criminal Appeals, Rule 3.5(A)(5).

In a related second proposition, Petitioner claims he was subjected to an arbitrary denial of access to this Court. After she filed the brief-in-chief in his direct appeal, Petitioner's direct appeal counsel attempted to file a supplemental proposition alleging the alleged jurisdictional defects in the Information. The motion was denied by this Court pursuant to 22 O.S.Supp.1994, Ch. 18, App. Rules of the Court of Criminal Appeals, Rule 3.4(F)(2). Pointing to cases where we allowed such a supplemental proposition, ³ Petitioner claims the refusal in his case constituted violations of both due process and equal protection. As this claim was not and could not have been raised on direct appeal and arguably supports a claim that the outcome of the direct appeal would have been different, we can address the claim now. 22 O.S.Supp.1995, § 1089(C).

Maintaining consistency in the application of this Court's Rules has not always been easy. We are painfully aware that at least one federal court has, in the past, viewed this Court as inconsistent in the application of its rules, and as a result deemed our ruling of waiver as insufficient to establish a procedural bar on habeas review. See Brecheen v. Reynolds, 41 F.3d 1343 (10th Cir.1994), cert. denied, 515 U.S. 1135, 115 S.Ct. 2564, 132 L.Ed.2d 817 (1995).

Because this Court may have made such errors in the past is no excuse for compounding the problem by committing yet another error now by ignoring our Rules one more time. To do so could grant Petitioner relief to which he may not be entitled on collateral appeal. Additionally, the fact we have been viewed as inconsistent in the past does not mean we are inconsistent now. The two cases cited by Petitioner support this. In Cudjo, this Court granted permission to file a supplemental proposition, even though prohibited by this Court's rules, on January 30, 1995; we granted the same in the Van White case the same day. Yet by the time this Court reviewed Petitioner's request, we had become aware of our errors and refused his request on March 14, 1995. Petitioner has failed to show this Court that it has been inconsistent on this point since that time.

This isolated inconsistency aside, we do not find Petitioner was denied access to the courts. While we have referred to the concept, this Court has never fully explored what the term "access to the courts" denotes. The nature of Petitioner's claim necessitates a more thorough analysis now.

The United States Supreme Court has held there is a constitutional right of access to the courts to assert available rights under both federal and state law, Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), and that right lies in the Due Process Clause within the Fourteenth Amendment to the United States Constitution. See Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977) (dealing with prisoners' right to adequate materials to present claims in court); see also Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (dealing with loss of credits and other punishments within prison system). Our own state Supreme Court has also observed that the principle of access to the courts is incorporated within both Art. 2, § 7 ⁴ and ART. 2, § 6 OF THE OKLAHOMA CONSTITUTION⁵.

                Johnson v. Scott, 702 P.2d 56, 58 (Okl.1985).  But that court has also noted that Section 6 was not absolute.  Rather, it is "intended to guarantee that the judiciary would be open and available for the resolution of disputes, but not to guarantee that any particular set of events would result in court-awarded relief."  Rollings v. Thermodyne Industries, Inc., 910 P.2d 1030, 1032 (Okl.1996).  Toward this end, the reviewing court should inquire

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