Murphy v. State, PCD-2004-321.

• Decision Date: 07 December 2005
• Docket Number: No. PCD-2004-321.,PCD-2004-321.
• Citation: 2005 OK CR 25,124 P.3d 1198
• Parties: Patrick Dwayne MURPHY, Appellant v. STATE of Oklahoma, Appellee.
• Court: Oklahoma Supreme Court

Page 1198

124 P.3d 1198

2005 OK CR 25

Patrick Dwayne MURPHY, Appellant v. STATE of Oklahoma, Appellee.

No. PCD-2004-321.

Court of Criminal Appeals of Oklahoma.

December 7, 2005.

Gary Peterson, Kari Y. Hawkins, Oklahoma City, OK, for petitioner on appeal.

W.A., Drew Edmondson, Attorney General of Oklahoma, Preston Saul Draper, Assistant Attorney General, Oklahoma City, OK, for the State on appeal.

OPINION GRANTING IN PART PETITIONER'S APPLICATION FOR POST-CONVICTION RELIEF

LUMPKIN, Vice-Presiding Judge.

¶ 1 Petitioner Patrick Dwayne Murphy was convicted of First Degree Murder in McIntosh County District Court case no. CF-1999-164A and sentenced to death. He appealed his conviction in case no. D-2000-705. We affirmed his conviction and sentence. Murphy v. State, 2002 OK CR 24, 47 P.3d 876. Petitioner then applied for post-conviction relief, but was denied. Murphy v. State, 2002 OK CR 32, 54 P.3d 556 (resolving all claims, except mental retardation); Murphy v. State, 2003 OK CR 6, 66 P.3d 456 (denying mental retardation claim).

¶ 2 Petitioner filed his second post-conviction application, raising three issues. We remanded the matter to the District Court for an evidentiary hearing on his first claim, relating to jurisdiction. That hearing was held in December of 2004. The parties have since submitted supplemental briefs on the issues adjudicated therein. The last brief was submitted by the State on February 2, 2005.

¶ 3 On numerous occasions this Court has set forth the narrow scope of review available under the amended Post-Conviction Procedure Act. See e.g., McCarty v. State, 1999 OK CR 24, ¶ 4, 989 P.2d 990, 993, cert. denied, 528 U.S. 1009, 120 S.Ct. 509, 145 L.Ed.2d 394 (1999). The Post-Conviction Procedure Act was neither designed nor intended to provide applicants another direct appeal. Walker v. State, 1997 OK CR 3, ¶ 3, 933 P.2d 327, 330, cert. denied, 521 U.S. 1125, 117 S.Ct. 2524, 138 L.Ed.2d 1024 (interpreting Act as amended). The Act has always provided petitioners with very limited grounds upon which to base a collateral attack on their judgments. Accordingly, claims that could have been raised in previous appeals but were not are generally waived; claims raised on direct appeal are res judicata. Thomas v. State, 1994 OK CR 85, ¶ 3, 888 P.2d 522, 525, cert. denied, 516 U.S. 840, 116 S.Ct. 123, 133 L.Ed.2d 73 (1995).

¶ 4 The new Act makes it more difficult for capital post-conviction applicants to avoid procedural bars. Walker, 1997 OK CR 3, ¶ 4, 933 P.2d at 331. Under 22 O.S.2001, § 1089(C)(1), only claims that "[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; 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.2001, §§ 1089(D)(4)(b), 1089(D)(9).

¶ 5 Should a Petitioner meet this burden, this Court shall consider the claim only if it "[s]upport(s) a conclusion either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent." 12 O.S.Supp.2001, § 1089(C)(2). As we said in Walker:

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, 1997 OK CR 3, ¶ 5, 933 P.2d at 331 (omitted, emphasis in original). We now turn to Petitioner's claims.

¶ 6 In proposition one, Petitioner raises, for the first time, a jurisdictional issue. Petitioner claims that he and the victim are Indians and that the crime occurred in Indian country. Thus Petitioner claims jurisdiction is exclusively federal under 18 U.S.C. § 1153. As such, he claims his state court proceedings are void and that he should be immediately released from the State's custody.

¶ 7 The crucial issue here is decidedly simple, yet remarkably difficult to resolve. The record reflects Petitioner is an enrolled member of the Muscogee (Creek) Nation, as was the victim, George Jacobs. Both are "Indians" for purpose of 18 U.S.C. § 1153,¹ as both sides readily admit.

¶ 8 The decisive issue, then, is whether or not the crime occurred in "Indian country,"² for if it did Oklahoma has no jurisdiction over the crime. See Cravatt v. State, 1992 OK CR 6, ¶ 7, 825 P.2d 277, 280 (murder prosecutions in Indian country have been "specifically reserved to the United States"); State v. Klindt, 1989 OK CR 75, ¶ 3, 782 P.2d 401, 403 ("Oklahoma does not have jurisdiction over crimes committed by or against an Indian in Indian Country.").

¶ 9 The issue is fairly fact intensive at first, for we must pinpoint where exactly the crime occurred. But then, the matter becomes primarily legal, involving the definition of Indian country under federal law.

¶ 10 18 U.S.C. § 1151 has three categories of Indian country: Indian reservations; dependent Indian communities; and Indian allotments, the Indian titles to which have not been extinguished. Eaves v. State, 1990 OK CR 42, ¶ 2, 795 P.2d 1060, 1061. Petitioner's claim falls primarily under subsection (c), Indian allotments, although he also presented evidence that the area was part of a Creek reservation and a dependent Indian community.

¶ 11 We were sufficiently concerned about the factual and legal merits of this claim to remand the matter to the McIntosh County District Court for an evidentiary hearing.³ This Court does not remand for evidentiary hearings on a whim. An application for evidentiary hearing and supporting affidavits "must contain sufficient information to show this Court by clear and convincing evidence the materials sought to be introduced have or are likely to have support in law and fact to be relevant to an allegation raised in the application for post-conviction relief." Rule 9.7(D)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2004). Thereafter, if this Court determines "the requirements of Section 1089(D) of Title 22 have been met and issues of fact must be resolved by the District Court, it shall issue an order remanding to the District Court for an evidentiary hearing." Rule 9.7(D)(6), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2004).

¶ 12 At the evidentiary hearing, the parties presented diametrically opposed positions concerning whether or not the crime occurred in Indian country.

¶ 13 The State argued the crime occurred on a county road owned by the State of Oklahoma, a road that was never made a part of an Indian allotment and that is currently maintained by McIntosh County. Alternatively, the State argued that, should this Court find the title to the road was part of a former Creek Nation allotment, the Indian title thereto has been extinguished by prior conveyances from Creek allottees to non-Indians.

¶ 14 Petitioner, however, claimed the county road was an easement or right-of-way and that fee title to the land beneath that road was owned by a Creek allottee, not the State. The surface rights had since been conveyed away, but the allottee's heirs had maintained a mineral interest. Petitioner thus claimed the Indian title to the property had not been fully extinguished as required by federal statute and for that reason the whole tract remains Indian country.⁴

¶ 15 This issue—i.e., whether the conveyance of all surface rights to an Indian country allotment extinguishes the Indian title thereto, or whether the reservation of a small mineral interest (1/12th) by the Creek Indian allottees preserves the Indian title so that criminal jurisdiction remains federal—appears to be novel. The parties have submitted numerous cases that are, to varying degrees, relevant to the crucial issue and somewhat analogous on certain points. But none of the cases deal directly with the issue presented here.

¶ 16 We are thus left interpreting federal statutes, federal decisions, and state cases construing federal law in an attempt to resolve a matter of utmost importance: who has jurisdiction over the murder of George Jacobs?

¶ 17 The evidentiary hearing lasted one day. Following the hearing the Associate District Judge made findings of fact and conclusions of law.

¶ 18 As for the facts, the District Court found: the fatal wound (amputation of the victim's genitals) was inflicted while the victim was on the traveled portion of Vernon Road; the victim died in the ditch just off the east edge of Vernon Road, after his attackers dragged him there; all of Vernon Road, including the ditch where the victim was found, lies within a three rod area granted to the public for highway purposes by the Supplemental Creek Agreement of 1902;⁵ 100 % of the surface and 11/12ths of the minerals to the tract of land adjacent to and directly east of the crime scene is wholly unrestricted property, owned by non-Indians; and the remaining 1/12th mineral interest appears to be a restricted interest retained by Indian heirs of a Creek allottee.

¶ 19 The District Court's legal conclusions were as follows: Vernon Road lies on land ceded to the State, not an easement; the original...