Cotner v. Creek County Dist. Court, s. O
| Decision Date | 11 January 1996 |
| Docket Number | Nos. O,s. O |
| Parties | Robert E. COTNER, Petitioner, v. CREEK COUNTY DISTRICT COURT, Creek County, Warden Cody, Warden Cody, Creek County, State of Oklahoma and Warden Cody, Warden Hargett and State, Respondents. 95-0521, O 95-0742, H 95-0761, O 95-0767, O 95-1019, PC 95-0983 and H 95-1072. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
On July 5, 1995, Petitioner tendered for filing a motion to modify and correct this Court's June 27, 1995, Order granting writ of mandamus. The June 27, 1995, Order directed the District Court of Creek County to rule upon an application for post-conviction relief if the application had been filed and if the District Court had not ruled upon it. Petitioner now contends an application for a writ of habeas corpus is also pending in the District Court which has not been acted upon.
However, an order of the District Court filed in this Court on August 31, 1995, reflects the District Court ruled upon Petitioner's application for post-conviction relief and Petitioner's application for a writ of habeas corpus. Therefore, Petitioner's motion to
modify and correct the June 27, 1995, Order is DENIED for being moot.
II. O 95-0742
On July 6, 1995, Petitioner filed a Petition for Writ of Mandamus directing the District Court of Creek County to rule upon an application for a writ of habeas corpus filed in the District Court on November 7, 1994. As set forth above, as the District Court subsequently ruled upon Petitioner's application for a writ of habeas corpus, Petitioner's application in this Court for extraordinary relief is DENIED for being moot.
III. H 95-0761
On June 26, 1995, Petitioner filed in the Supreme Court of the State of Oklahoma a "Petition for Certiorari" complaining that the District Court of Creek County had not ruled upon his petition for a writ of habeas corpus filed in the District Court on November 7, 1994, and because this Court declined jurisdiction of his petition for a writ of habeas corpus in an Order issued June 12, 1995. The Supreme Court transferred this matter to this Court on July 10, 1995, finding the matter falls within the exclusive jurisdiction of this Court.
The record reflects this Court declined jurisdiction of Petitioner's application for a writ of habeas corpus on April 26, 1995, and again on June 12, 1995, because Petitioner failed to show that he had sought and been denied relief in the proper District Court before making application to this Court.
Again, however, relief is DENIED as this issue is moot as the District Court subsequently ruled on Petitioner's application for a writ of habeas corpus.
IV. O 95-0767
On July 11, 1995, Petitioner filed in this Court a "Petition in Error and Appeal of Lower Courts Denial Order". Petitioner appears to be attempting to appeal a denial of a writ of mandamus by the District Court of Cleveland County. However, Petitioner failed to make part of the record a copy of the order of the District Court of Cleveland County denying relief as required by 22 O.S.Supp.1994, Ch. 18, App., Rules of the Court of Criminal Appeals, Rule 10.1.
IV. H 95-0761--BUT SHOULD BE O 95-0767
On July 18, 1995, Petitioner filed a "Supplemental Brief in Support of Petition in Error and Appeal" attaching a copy of the order of the District Court of Cleveland County not included with his application for relief filed July 11, 1995, in Case No. O 95-0767. Petitioner also filed a Motion for Appointment of Counsel and Brief.
The District Court of Cleveland County, Case No. CJ-95-715, denied Petitioner's application for a writ of mandamus for the reason that Petitioner had not shown a clear legal right vested in him and had not shown that the District Court had refused to perform a plain legal duty which does not involve the exercise of discretion.
For a writ of mandamus Petitioner has the burden of establishing: (1) he/she has a clear legal right to the relief sought; (2) the respondent's refusal to perform a plain legal duty not involving the exercise of discretion; and (3) the adequacy of mandamus and the inadequacy of other relief. Rule 10.6(B).
Petitioner has not met this burden. As the issues raised are attacking the Judgment and Sentence, the appropriate method to obtain relief is an application for post-conviction relief filed in the District Court pursuant to 22 O.S.1991, § 1080 et seq., and 22 O.S.Supp.1994, Ch. 18, App., Rules of the Court of Criminal Appeals, Section V.
Accordingly, Petitioner's application for a writ of mandamus in Case No. F 95-0761 is DENIED.
V. H 95-0761
On August 18, 1995, Petitioner filed a "Motion to Deem Confessed" the petition for a writ of habeas corpus filed in the District Court of Creek County November 7, 1994.
Relief is DENIED. This issue is moot as the District Court subsequently ruled on Petitioner's application for a writ of habeas corpus.
VI. O 95-0521
On August 29, 1995, Petitioner filed a "Motion For Order Granting Imeadiate [sic] Release Again, relief is DENIED as this issue is moot as the District Court subsequently ruled on Petitioner's application for a writ of habeas corpus.
Pursuant to Following". Petitioner argues that the District Court of Creek County failed to rule on an application for a writ of habeas corpus filed in the District Court on November 7, 1994. Petitioner argues the District Court did not have subject matter jurisdiction in Case No. CRF-91-194 and is entitled to immediate release.
Additionally, we note that Petitioner's conviction in Case No. CRF-91-194 was affirmed in an Opinion issued by this Court on October 25, 1994, and the issue Petitioner raises is not appropriate for a writ of habeas corpus.
VII. PC 95-0983
On September 5, 1995, Petitioner filed an appeal of the denial of his application for post-conviction relief in the District Court of Creek County, Case No. CRF-91-194. On September 14, 1995, without leave of this Court, Petitioner filed a brief in support of his application for post-conviction relief. See Rule 5.2.
However, Rule 5.2(C)(1) requires the applicant to file a certified copy of the order of the District Court with the petition in error and supporting brief. In this case the order of the District Court denying Petitioner relief is not certified as required by Rule 5.2(C)(1). Therefore, we DECLINE jurisdiction of this matter.
On October 18, 1995, Petitioner filed a "Motion For Default ..." because the State failed to timely respond. Petitioner fails to cite any authority for this contention. Rule 5.2(C)(2) requires an answer brief be filed in post-conviction appeals only when directed by this Court. And, as set forth above, jurisdiction of this matter is DECLINED.
On November 15, 1995, Petitioner filed a "Motion and Brief in Support of Remand to Lower Court For Hearing" arguing he did not waive his right to a grand jury indictment and that he had ineffective counsel.
This pleading was filed in this Court without leave and without first being presented to the District Court as required by the Rules of this Court. See Rule 5.2(A). Jurisdiction is DECLINED.
VIII. O 95-1019
On April 11, 1995, Petitioner filed a "Petition to Certify Questions to the Oklahoma Supreme Court ...". On May 11, 1995, the Supreme Court directed the District Attorney to file a response. On May 17, 1995, Petitioner filed a Motion for Appointment of Counsel and Brief in the Supreme Court. On June 2, 1995, Petitioner filed in the Supreme Court a "Motion to Grant Default Against Respondents and Deem Confessed as True". On June 15, 1995, the Supreme Court directed the Attorney General to file a response to "the various filings by petitioner". On July 12, 1995, Petitioner filed a "Motion For Default Judgment". On September 13, 1995, the Supreme Court transferred the matters to the docket of this Court finding the subject falls within the exclusive jurisdiction of this Court.
Petitioner's pleading sets forth fourteen (14) questions concerning his conviction in Case No. CRF-91-194 in the District Court of Creek County which he seeks to be addressed. This is an attempt by Petitioner to circumvent the statutory provisions for post-conviction relief. Methods of appeal are set out by statute and are strictly construed.
Petitioner's conviction in Case No. CRF-91-194 was affirmed by this Court in an Opinion issued October 25, 1994. The application for post-conviction relief was denied by the District Court and has not been properly appealed to this Court as set forth above. Petitioner cites no authority to file this type of pleading and we find none. Therefore, jurisdiction of this matter is DECLINED.
IX. PC 95-0983
On September 25, 1995, Petitioner filed a Petition for Writ of Mandamus alleging he is entitled to a writ of mandamus directing the District Court of Creek County to grant him a new trial and set aside his conviction because the trial court did not have subject matter jurisdiction.
As set forth above, Petitioner has not met the burden for a writ of mandamus. As the issue raised attacks the Judgment and Sentence, the appropriate method to obtain relief is through a post-conviction application and not an application for extraordinary relief. This matter is barred by res judicata based upon the Opinion issued on direct appeal.
X. H 95-1072
On September 22, 1995, Petitioner filed in the Oklahoma Supreme Court a "Petition to Exercise This Court's Constitutional Superintending Authority On All Inferior Courts To Grant Civil Relief" complaining that he is being illegally held in custody as the District Court of Creek County was without subject matter jurisdiction to issue judgment in Case No. CRF-91-194. The Oklahoma Supreme Court transferred the matter to this Court on September 25, 1995.
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