Castro v. State

• Decision Date: 17 August 1994
• Docket Number: No. PC-94-394,PC-94-394
• Citation: 880 P.2d 387
• Parties: John Walter CASTRO, Sr., Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 387

880 P.2d 387

John Walter CASTRO, Sr., Appellant, v. STATE of Oklahoma, Appellee.

No. PC-94-394.

Court of Criminal Appeals of Oklahoma.

Aug. 17, 1994.

ORDER DENYING POST-CONVICTION RELIEF

LUMPKIN, Presiding Judge:

Petitioner John Walter Castro, Sr. has appealed to this Court from an order of the District Court of Noble County denying his application for post-conviction relief in Case No. CRF 83-70. Petitioner's first degree murder conviction and death sentence were affirmed by this Court in Castro v. State, 844 P.2d 159 (Okl.Cr.1992). A petition for rehearing was denied by this Court in January 1993 and a petition for certiorari was subsequently denied by the United States Supreme Court. See Castro v. Oklahoma, 510 U.S. 844, 114 S.Ct. 135, 126 L.Ed.2d 98 (1993). Petitioner's subsequent Application for Post-Conviction relief was filed in the District Court of Noble County on January 7, 1994 and subsequently denied by the court on March 30, 1994. It is this denial which the Petitioner appeals.

Petitioner is now asking this Court to review the validity of his conviction and sentence for the third time. Seventeen (17) propositions of error, the majority containing multiple sub-propositions, are raised in Petitioner's brief. The scope of the Uniform Post-Conviction Procedure Act 22 O.S. 1981, § 1080 et seq. ¹ is strictly limited in its application. Its provisions are limited to only those claims which, for whatever reason, could not have been raised on direct appeal. Jones v. State, 704 P.2d 1138, 1140 (Okl.Cr.1985). Issues which were raised and decided on direct appeal are barred from further consideration by res judicata. Castro v. State, 814 P.2d 158, 159 (Okl.Cr.1991); Coleman v. State, 693 P.2d 4 (Okl.Cr.1984); 22 O.S.1981, § 1086. Issues which were not raised on direct appeal, but could have been raised are waived. Rojem v. State, 829 P.2d 683 (Okl.Cr.1992); Smith v. State, 546 P.2d 1351 (Okl.Cr.1976); 22 O.S.1981, § 1086. In the present case, Propositions of error I, II, III, IV, V, VI, VII, VIII, IX, X, XI, XII ², XIV, XVI are issues which were either raised on direct appeal or could have been raised on direct appeal but were not. Therefore, this Court will not consider these issues further.

To several of these propositions of error, Appellant has added claims of ineffective assistance of counsel--both trial and appellate. The passing references contained in Propositions I, II, IV, V, VI, VIII, and IX are more fully explained in Proposition XV. These allegations of ineffectiveness range from trial counsel's failure to raise certain issues at trial, to present certain evidence, to enter particular objections and to request certain jury instructions. As for appellate counsel, Petitioner argues he was ineffective for failing to raise critical constitutional errors. Any allegations as to trial counsel's ineffectiveness have been waived as this is an issue which could have been raised on direct appeal but was not. Webb v. State, 835 P.2d 115, 117 (Okl.Cr.1992).

The charge of ineffectiveness of appellate counsel is key to this appeal. If we find appellate counsel ineffective, the doctrines of waiver and res judicata do not bar our consideration of the propositions raised in the application for post-conviction relief. Mann v. State, 856 P.2d 992, 994 (Okl.Cr.1993); Banks v. State, 810 P.2d 1286 (Okl.Cr.1991). In analyzing this type of claim, this Court is guided by the Supreme Court's decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Cartwright v. State, 708 P.2d 592, 594 (Okl.Cr.1985), cert. denied 474 U.S. 1073, 106 S.Ct. 837, 88 L.Ed.2d 808 (1986). The basic test for ineffectiveness of counsel is "[w]hether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. In determining whether counsel provided "reasonably effective assistance," this Court indulges "a strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance." Id., at 689, 104 S.Ct. at 2065. The appellant bears the burden of showing both that counsel's performance was deficient and that such deficient performance prejudiced the defense. Id., at 687, 104 S.Ct. at 2064. When a claim of ineffectiveness of counsel can be adjudicated on the ground of lack of prejudice, that course should be followed. Id. at 696, 104 S.Ct. at 2070, 80 L.Ed.2d at 699.

In reviewing the trial court's denial of post-conviction relief in Nguyen v. State, 844 P.2d 176, 179-180 (Okl.Cr.1992) this Court addressed allegations of ineffective assistance of both trial and appellate counsel and stated:

... In the present case, we recognize that different trial counsel may have spent more time preparing the case, filed more pre-trial motions, asked more questions during jury selection, presented more evidence and made more objections during trial. Another appellate attorney may have raised more assignments of error on direct appeal. "There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." (cite omitted). However, our review of this issue cannot be governed by hindsight, but must focus on whether appellant's attorneys provided reasonably effective assistance. We have examined each of propositions of error alleged above, individually and in the aggregate, and conclude that appellant has failed to demonstrate a reasonable probability that, but for counsel's alleged unprofessional errors, the results of either the trial or the direct appeal would have been different. (cite omitted).

Allegations of ineffective assistance of counsel were also addressed in Banks v. State, 810 P.2d 1286, 1290 (Okl.Cr.1991), cert. denied, 502 U.S. 1036, 112 S.Ct. 883, 116 L.Ed.2d 787 (1992) wherein we stated:

[W]e begin with the observation that it is undeniably true that some appellate briefs are written better than others. Those briefs submitted by both appellant and appellee which are well researched, accurate, concise, clear and to the point are of true benefit to the Court. Not all briefs rise to this level of excellence. However, a brief reaches the minimum level constitutionally acceptable if it sufficiently raises relevant issues for the Court to consider and address.

The petitioner does not claim the issues raised on direct appeal ... were not fully considered by the Court. He simply argues that they could have been more effectively presented. We find that the briefs submitted on direct appeal ... were supported with relevant authority, and therefore were sufficient to raise the issues for our consideration.

It is the role of appellate counsel to carefully select and develop the legal issues to be presented to the court and not raise every nonfrivolous issue conceivable. Williamson v. State, 852 P.2d 167, 169 (Okl.Cr.1993). In the present case, Petitioner was represented on appeal by the Appellate Public Defender's Office, predecessor to the Oklahoma Indigent Defense System. Appellate counsel presented this Court with a thorough well researched brief raising relevant, well-reasoned issues. The fact the original appellate counsel did not raise every issue now raised by post-conviction counsel, the Oklahoma Indigent Defender, is not evidence of ineffectiveness. We made this point in Cartwright v. State, 708 P.2d 592, 594 (Okl.Cr.1985) by quoting Chief Justice Burger who, writing for the majority in Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), quoted Justice Jackson:

Legal contentions, like the currency, depreciate through over-issue. The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in any one ... [E]xperience on the bench convinces me that multiplying assignments of error will dilute and weaken a good case and will not save a bad one. (citation omitted).

While all issues which are not frivolous need not be raised in an effective appellate brief, failure to raise an issue warranting reversal, modification of sentence, or remand for resentencing may well prove counsel was ineffective. Unartful argument which is found to be persuasive when reasserted can also be the basis for a valid claim of ineffective counsel. See Mann v. State, 856 P.2d at 994. We have reviewed each of the issues raised herein which were or could have been raised on direct appeal, and find none of them warrant reversal, modification, or resentencing. Consequently we find no evidence of ineffective assistance of appellate counsel. ³ These issues will not be considered on the merits as they are barred by res judicata or waived.

In his thirteenth proposition of error, Petitioner alleges the trial court erred in denying his application for an extension of time in which to file his application for post-conviction relief. The provisions of 22 O.S. 1981, § 1089(C) require the application for post-conviction relief to be filed in the trial court within sixty (60) days from the date the United States Supreme Court denied the petition for writ of certiorari. In this case, that date was December 3, 1993. On November 19, 1993, Petitioner filed a motion for extension of time. A hearing on that motion was held January 7, 1994 and the motion was denied. In support of his motion for additional time, Petitioner sets forth a plethora of factors which he claims made it impossible for him to comply with the sixty (60) day time limit and which prevented him from putting the State's case to a true and adversarial testing during the post-conviction process. These factors include a heavy caseload; the lack of adequate staff, including the loss of experienced attorneys, the lack of a...