Cummings v. State, PC-98-134

• Decision Date: 10 November 1998
• Docket Number: No. PC-98-134,PC-98-134
• Citation: 1998 OK CR 60,970 P.2d 188
• Parties: 1998 OK CR 60 Jessie James CUMMINGS, Petitioner, v. STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 188

970 P.2d 188

1998 OK CR 60

Jessie James CUMMINGS, Petitioner, v. STATE of Oklahoma, Respondent.

No. PC-98-134.

Court of Criminal Appeals of Oklahoma.

Nov. 10, 1998.

Judith G. Menadue, Kevin H. Pate, Capital Post-Conviction Division, Oklahoma Indigent Defense System, Norman, for Petitioner on appeal.

OPINION DENYING POST-CONVICTION RELIEF MOTION FOR

EVIDENTIARY HEARING MOTION FOR LEAVE TO CONDUCT

DISCOVERY AND MOTION TO SUPPLEMENT THE RECORD

STRUBHAR, V.P.J.:

¶1 Petitioner, Jessie James Cummings, was tried by a jury and convicted of First Degree Malice Murder (Count I) and First Degree Felony Murder (Count II) in the District Court of Coal County, Case No. CF-94-32. In accordance with the jury's recommendation he was sentenced to death on both Counts I and II. Petitioner appealed this Judgment and Sentence to this Court. In Cummings v. State, 1998 OK CR 45, 968 P.2d 821, 69 OBJ 2901, this Court affirmed Petitioner's Judgment and Sentence on Count II, and reversed with instructions to dismiss his Judgment and Sentence on Count I. Petitioner subsequently filed with this Court an application for post-conviction relief.

¶2 Under the Post-Conviction Procedure Act, the only issues that can be raised on post-conviction are those that "[w]ere not and could not have been raised in a direct appeal ... and ... [which] [s]upport 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)(1) & (2). On review, this Court will determine: "(1) whether controverted, previously unresolved factual issues material to the legality of the applicant's confinement exist, (2) whether the applicant's grounds were or could have been previously raised, and (3) whether relief may be granted...." 22 O.S.Supp.1995, § 1089(D)(4)(a). Further, this Court will not consider issues which were raised on direct appeal and are barred by res judicata, or issues which have been waived because they could have been, but were not, raised on direct appeal. Cannon v. State, 1997 OK CR 13, 933 P.2d 926, 928.

¶3 In Proposition I, Petitioner asserts a claim of factual innocence based upon newly discovered evidence. Petitioner sets forth several categories of "newly discovered evidence." These include: (1) evidence that he is limited intellectually and cognitively; (2) evidence that he lacks the psychological makeup to dominate and control Anita and Sherry Cummings, and that these women were not victims of battered women's syndrome; (3) evidence regarding the psychological makeup, norms, mores and behavior of persons in the "Poor White Trash" subculture; (4) evidence that Sherry and Anita Cummings committed perjury at his trial; (5) evidence of prosecutorial misconduct in suppressing material evidence and/or presenting evidence at trial in a false light; (6) evidence that trial counsel were ineffective for conceding Petitioner's guilt to the crime of Accessory After the Fact; (7) evidence regarding the circumstances under which Anita Cummings went to the police and inconsistencies in her statements and her testimony; (8) evidence that Lahoma Yaws' claim that Petitioner raped her was not reliable enough for jurors to have heard it; (9) evidence indicating that Petitioner's July 30, 1994 confession was false and induced by law enforcement officers; and (10) other material evidence which could have been used to impeach Anita and Sherry Cummings' versions of the events.

¶4 We are unpersuaded that this evidence which Petitioner refers to as "newly discovered" could not have been discovered and raised on direct appeal as is required by 22 O.S.Supp.1995, § 1089(C). Further, even assuming the evidence submitted by Petitioner is true, it does not contain specific facts supporting the conclusion that Petitioner is factually innocent. "Conflicting evidence which could have been presented at trial ... simply does not rise to the level of 'specific facts supporting a conclusion that Petitioner is factually innocent.' " Robinson v. State, 1997 OK CR 24, 937 P.2d 101, 106. Accordingly, Petitioner's claim is procedurally barred.

¶5 Petitioner argues in his second proposition that he was denied effective assistance of both trial and appellate counsel. "[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, we are unpersuaded these facts were not available on direct appeal. Because Petitioner's 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.

¶6 Petitioner also claims he was denied effective assistance of appellate counsel because appellate counsel did not adequately investigate and place before this Court a complete record regarding the issue of ineffective assistance of trial counsel. Petitioner specifically claims that appellate counsel owed him a duty to raise meritorious claims and counsel did not raise in his direct appeal brief the most meritorious of the claims that could have been raised.

¶7 Under the Post-Conviction Procedure Act, a claim of ineffective assistance of appellate counsel is not procedurally barred if:

it is a claim contained in an original timely application for post-conviction relief relating to ineffective assistance of appellate counsel and the Court of Criminal Appeals first finds that if the allegations in the application were true, the performance of appellate counsel constitutes the denial of reasonably competent assistance of appellate counsel under prevailing professional norms.

22 O.S.Supp.1995, § 1089(D)(4)(b)(2). Applying these statutory guidelines, this Court recently held:

[T]he threshold inquiry is (1) whether appellate counsel actually committed the act which gave rise to the ineffective assistance allegation.... [T]he next question is (2) whether such performance was deficient under the first prong of the two-pronged test in Strickland v. Washington. ¹ ... If a petitioner meets his or her heavy burden to prove deficient attorney performance, we may then consider the mishandled substantive claim. The question then becomes (3) whether such a claim meets the second prerequisite to capital post-conviction review.

Walker, 933 P.2d at 333.

¶8 A review of the record reveals that appellate counsel did not raise the issue of ineffective assistance of trial counsel as fully as Petitioner argues he should have. Accordingly, Petitioner has made the threshold showing that counsel committed the act which gave rise to the ineffective assistance allegation. Having found such, we must now determine whether counsel's failure to raise these issues on direct appeal constitutes deficient performance. However, Petitioner has not shown that appellate counsel's failure to do so was unreasonable under prevailing professional norms. While appellate counsel has a duty to raise relevant issues for this Court's consideration, there is no obligation to raise all available non-frivolous issues. Walker, 933 P.2d at 334. The brief filed in Petitioner's direct appeal reflects that appellate counsel raised sixteen non-frivolous claims at least equally meritorious to those which were omitted and are at issue here. We cannot find that appellate counsel's failure to investigate and litigate the ineffective assistance of trial counsel issue as fully as Petitioner claims he should have rendered counsel's performance unreasonable under prevailing professional norms. Accordingly, because Petitioner has not established that appellate counsel's performance was deficient, his substantive claims remain procedurally barred.

¶9 In his third proposition, Petitioner argues that misconduct by the prosecutor in using evidence and suppressing material evidence denied him a fair trial and a fair and reliable sentencing determination. In this proposition of error, Petitioner complains of several instances of alleged prosecutorial misconduct. Some of these allegations were raised on direct appeal and were addressed by this Court. These allegations are barred from further review by the doctrine of res judicata. Other instances of alleged prosecutorial misconduct were not raised in Petitioner's direct appeal but could have been. These allegations are waived. See Cannon, 933 P.2d at 928.

¶10 Petitioner asserts in his fourth proposition that he was denied a fair and reliable sentencing determination because ineffective assistance of counsel and prosecutorial misconduct caused the jurors to have an inaccurate understanding of the relevant facts. This, Petitioner claims, coupled with fundamental errors, caused his death sentence to be unreliable. We have already determined that Petitioner's claims of ineffective assistance of counsel and prosecutorial misconduct are procedurally barred from review on post-conviction. Accordingly, this claim which also arises from these issues is likewise barred.

¶11 In this same proposition Petitioner contends that the aggravating circumstances found in this case were vague and overbroad. In the opinion on direct appeal this Court threw out the aggravating circumstance that Petitioner killed Melissa Moody to prevent lawful arrest or prosecution. The constitutionality and application of the remaining continuing threat aggravating circumstance was raised and addressed on direct appeal and therefore, further review of this issue on post-conviction is precluded by the doctrine of res judicata. 22...