Logan v. State

• Decision Date: 28 February 2013
• Docket Number: No. PC–2012–108.,PC–2012–108.
• Citation: 293 P.3d 969
• Parties: Charles Lee LOGAN, Petitioner, v. STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

293 P.3d 969

Charles Lee LOGAN, Petitioner,

v.STATE of Oklahoma, Respondent.

No. PC–2012–108.

Court of Criminal Appeals of Oklahoma.

Jan. 11, 2013.

As Corrected Feb. 28, 2013.

An Appeal from the District Court of Oklahoma County; the Honorable Donald L. Deason, District Judge.

Charles Lee Logan, Defendant Pro Se.

Aaron Etherington, Assistant District Attorney, Oklahoma City, OK, Attorney for State.

No Response Necessary.

OPINION VACATING DISTRICT COURT'S DENIAL OF POST–CONVICTION RELIEF AND REMANDING FOR FURTHER PROCEEDINGS

SMITH, Vice Presiding Judge.

¶ 1 Petitioner Charles Lee Logan appeals to this Court from an order of the District Court of Oklahoma County denying his Application for Post–Conviction Relief in Case No. CF–2008–6242. Logan was convicted by a jury of Robbery with a Firearm, AFCF, 21 O.S.2001, § 801 (Count 1) and Robbery in the First Degree, AFCF, 21 O.S.2001, § 791 (Count 2).¹ Logan was sentenced to imprisonment for life on Count 1 and imprisonment for 40 years on Count 2. The district court, the Honorable Virgil C. Black, ordered that the sentences be served consecutively. This Court affirmed the judgments and sentences in Logan v. State, F–2009–656 (Okl.Cr., June 29, 2010) (opinion not for publication).²

¶ 2 On June 10, 2011, Logan filed an “Application for Post–Conviction Relief” (“Application”) in the District Court. On June 23, 2011, the State filed a comprehensive “Response to Application for Post–Conviction Relief” (“Response”). On August 3, 2011, the Honorable Donald L. Deason, District Judge (“the District Court”), denied Logan's Application.³ It is from the District Court's order denying relief that Logan appeals.⁴

¶ 3 Post-conviction review provides petitioners with very limited grounds upon which to base a collateral attack on their judgments. 22 O.S.2001, § 1086. Issues that were previously raised and ruled upon by this Court are procedurally barred from further review under the doctrine of res judicata; and issues that were not raised previously on direct appeal, but which could have been raised, are waived for further review. See22 O.S.2001, § 1086; King v. State, 2001 OK CR 22, ¶ 4, 29 P.3d 1089, 1090;Webb v. State, 1992 OK CR 38, ¶ 6, 835 P.2d 115, 116,overruled on other grounds, Neill v. State, 1997 OK CR 41, ¶ 7 n. 2, 943 P.2d 145, 148 n. 2. Post-conviction review was neither designed nor intended to provide applicants another direct appeal. Cf. Coddington v. State, 2011 OK CR 21, ¶ 2, 259 P.3d 833, 835 (“The post-conviction process is not a second appeal.”).

¶ 4 In his post-conviction appeal and attached brief, Logan raises six propositions: (1) he was subjected to an illegal search and seizure, where police searched his home without a warrant and arrested him without probable cause and without a warrant; (2) evidence used against him was the result of an illegal search and seizure and should have been suppressed; (3) probable cause did not exist to justify his arrest or to charge him with robbery; (4) he was subjected to a suggestive/unreliable pre-trial identification; (5) trial counsel was ineffective in failing to adequately investigate his case, failing to object to evidence at trial, and failing to raise issues now challenged; and (6) appellate counsel was ineffective for failing to raise the above claims on direct appeal. This Court finds that Logan has waived consideration of his first five grounds for relief, as these issues were not, but could have been, raised on direct appeal.

¶ 5 As for his sixth ground for relief, Logan claims that appellate counsel was ineffective for failing to raise on direct appeal the claims he now raises in this post-conviction appeal. Claims of ineffective assistance of appellate counsel may be raised for the first time on post-conviction, because it is usually a petitioner's first opportunity to allege and argue the issue. Post-conviction claims of ineffective assistance of appellate counsel are reviewed under the standard for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Smith v. Robbins, 528 U.S. 259, 289, 120 S.Ct. 746, 765, 145 L.Ed.2d 756 (2000) (“[Petitioner] must satisfy both prongs of the Strickland test in order to prevail on his claim of ineffective assistance of appellate counsel.”); Coddington, 2011 OK CR 21, ¶ 3, 259 P.3d at 835;Davis v. State, 2005 OK CR 21, ¶ 7, 123 P.3d 243, 246. Under Strickland, a petitioner must show both (1) deficient performance, by demonstrating that his counsel's conduct was objectively unreasonable, and (2) resulting prejudice, by demonstrating a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding (in this case the appeal) would have been different. Strickland, 466 U.S. at 687–89, 104 S.Ct. at 2064–66. And we recognize that “[a] court considering a claim of ineffective assistance of counsel must apply a ‘strong presumption’ that counsel's representation was within the ‘wide range’ of reasonable professional assistance.” Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 787, 178 L.Ed.2d 624 (2011) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065).

¶ 6 In reviewing a claim of ineffective assistance of appellate counsel under Strickland, a court must look to the merits of the issue(s) that appellate counsel failed to raise.⁵See Malicoat v. Mullin, 426 F.3d 1241, 1249 (10th Cir.2005) (“[I]n certain circumstances,appellate counsel's omission of an issue may constitute ineffective assistance under Strickland. In analyzing such claims, the court must consider the merits of the omitted issue.” (citing Robbins, 528 U.S. at 288, 120 S.Ct. at 765–66)); Cargle v. Mullin, 317 F.3d 1196, 1205 (10th Cir.2003) (“The very focus of a Strickland inquiry regarding performance of appellate counsel is upon the merits of omitted issues, and no test that ignores the merits of the omitted claim in conducting its ineffective assistance of appellate counsel analysis comports with federal law.”). In the context of ineffective assistance of appellate counsel claims, only an examination of the merits of any omitted issues will reveal whether appellate counsel's performance was deficient (due to failing to raise the omitted issue(s)) and also whether the failure to raise the omitted issue(s) on appeal prejudiced the defendant, i.e., whether there is a reasonable probability that raising the omitted issue(s) would have resulted in a different outcome in the defendant's direct appeal ( e.g., a reversal, new trial, new sentencing proceeding, or sentence modification).

¶ 7 This Court emphasizes that it will often be unnecessary to address both the performance prong and the prejudice prong in this context. As with any ineffective assistance claim, an ineffective assistance of appellate counsel claim can often be resolved by a finding that the defendant has failed to establish prejudice, without even addressing the attorney's performance. Since the prejudice analysis is often more straight-forward, it makes sense to address this issue first. See Strickland, 466 U.S. at 697, 104 S.Ct. at 2069 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”); Bland v. State, 2000 OK CR 11, ¶ 113, 4 P.3d, 702, 731 (“When a claim of ineffectiveness of counsel can be disposed of on the ground of lack of prejudice, that course should be followed.”). Of course, determining prejudice in this context requires examining the merits of any omitted issues. And the prejudice inquiry is about whether the defendant has established that there is a reasonable probability that the result of the appeal would have been different if an omitted issue(s) had been appealed originally, i.e., that a claim (or claims) now asserted would likely have prevailed if it (they) had been raised on direct appeal. This Court notes that if the State can show that a claim now asserted (as an example of ineffective appellate assistance) would have been properly rejected on direct appeal, then the postconviction applicant will be unable to show prejudice, and the assertion of ineffective appellate assistance for failing to raise that claim should be rejected accordingly.

¶ 8 If a defendant can show prejudice from the omission of an issue(s) on appeal, the appellate attorney's performance must also be evaluated. Attorney performance in this context is judged based upon the relative merit of the omitted issue(s). In Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000), the Supreme Court specifically recognized the viability of claims of ineffective assistance of appellate counsel alleging that even though an appellate attorney appealed certain issues, the attorney “failed to raise a particular claim” that the defendant maintains should have been appealed. Id. at 287–88, 120 S.Ct. at 765. The Robbins Court emphasized that even though appellate attorneys are not required to raise every arguable issue or every possible “nonfrivolous claim” (not even those specifically requested by the defendant)—and are expected to select the claims most likely to succeed on appeal—“it is still possible to bring a Strickland claim based on [appellate] counsel's failure to raise a particular claim.” Id. at 288, 120 S.Ct. at 765 (citing Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983)). The Robbins Court also recognized that the relative merit of the omitted issue(s)—in relation to any appealed issues—must be evaluated in order to determine whether appellate counsel's performance was adequate. See id. at 288, 120 S.Ct. at 765–66.

¶ 9 There are essentially three different categories of relative merit in this context: (1) appellate claims that are “plainly meritorious” or “dead-bang winners,” (2) appellate claims that are meritless, and (3) appellate claims that have merit, but are not plainly or...