Patton v. State

• Citation: 1999 OK CR 25,989 P.2d 983
• Decision Date: 17 May 1999
• Docket Number: No. PC-98-737.,PC-98-737.
• Parties: Eric Allen PATTON, Petitioner, v. STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

989 P.2d 983

1999 OK CR 25

Eric Allen PATTON, Petitioner, v. STATE of Oklahoma, Respondent.

No. PC-98-737.

Court of Criminal Appeals of Oklahoma.

May 17, 1999.

Hossein Reza Parvizian, Appellate Defense Counsel, Norman, for Petitioner on Appeal.

No response necessary form the State.

OPINION DENYING APPLICATION FOR POST-CONVICTION RELIEF, EVIDENTIARY HEARING AND DISCOVERY

LUMPKIN, Vice-Presiding Judge:

¶ 1 Petitioner Eric Allen Patton was convicted of First Degree Murder (Count I) (21 O.S.1991, § 701.7) and First Degree Burglary (Count II) (21 O.S.1991, § 1431), Case No. CF-95-55, in the District Court of Oklahoma County. In Count I, the jury found the existence of three (3) aggravating circumstances and recommended the punishment of death. In Count II, Petitioner was sentenced to one thousand one hundred and twenty (1,120) years imprisonment. This Court affirmed the judgments and sentences in Patton v. State, 973 P.2d 270 (Okl.Cr. 1998). Petitioner filed his Original Application for Post-Conviction Relief in this Court on September 3, 1998, in accordance with 22 O.S.Supp.1998, § 1089.

¶ 2 Before considering Petitioner's claims, we must again consider the narrow scope of review available under the amended Post-Conviction Procedure Act. As we have said numerous times:

[T]he Post-Conviction Procedure Act was neither designed nor intended to provide applicants another direct appeal. Walker v. State, 933 P.2d 327, 330 (Okl.Cr.1997) (interpreting Act as amended); Fox v. State, 880 P.2d 383, 384 (Okl.Cr.1994), cert. denied, 514 U.S. 1005, 115 S.Ct. 1318, 131 L.Ed.2d 199 (1995) (same conclusion under Act before amendments). The Act has always provided petitioners with very limited grounds upon which to base a collateral attack on their judgments. Accordingly, claims which could have been raised in previous appeals but were not are generally waived; and claims raised on direct appeal are res judicata. Thomas v. State 888 P.2d 522, 525, 525 (Okl.Cr.1994),

cert. denied, 516 U.S. 840, 116 S.Ct. 123, 133 L.Ed.2d 73 (1995); Castro v. State, 814 P.2d 158, 159 (Okl.Cr.1991),

cert. denied, 502 U.S. 1063, 112 S.Ct. 947, 117 L.Ed.2d 116 (1992).

Conover v. State, 942 P.2d 229, 230 (Okl.Cr. 1997). These procedural bars still apply under the amended Act. We have noted the new Act makes it even more difficult for capital post-conviction applicants to avoid procedural bars. Walker v. State, 933 P.2d 327, 331 (Okl.Cr.1997). Under 22 O.S.Supp.1998, § 1089(C)(1), the only claims which will be considered on post-conviction are those which "[w]ere not and could not have been raised" on direct appeal and which "support a conclusion either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent." 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.Supp.1998, §§ 1089(D)(4)(b), 1089(D)(9). Should a Petitioner meet this burden, this Court shall consider the claim only if it "[s]upports 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)(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 the 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, 933 P.2d at 331 (footnote omitted, emphasis in original). We now turn to Petitioner's claims.

¶ 3 In Propositions I, II and III, Petitioner asserts he was denied the effective assistance of appellate counsel. Specifically, he finds appellate counsel ineffective for failing to: 1) investigate extra-record material on appeal (Proposition I); 2) present mitigating evidence, i.e., evidence of his good behavior while incarcerated and on parole in California, and while hospitalized at Eastern State Hospital in Vinita, Oklahoma, (Proposition II, which also includes an allegation of trial counsel ineffective assistance); and 3) supplement the direct appeal brief with Darks v. State, 954 P.2d 152 (Okl.Cr.1998) to challenge the playing of tape recorded statements containing prejudicial comments and opinions made by the interviewing police officers (Proposition III).

¶ 4 In Walker, this Court set forth a three-prong test to review claims of ineffective assistance of appellate counsel.¹ Under this analysis, 1) the threshold inquiry is whether appellate counsel actually committed the act which gave rise to the ineffective assistance allegation. If a petitioner establishes appellate counsel actually did the thing supporting the allegation of ineffectiveness, this Court then 2) determines whether the performance was deficient under the first of the two-pronged test in Strickland v. Washington, 466 U.S. 668, 677-78, 104 S.Ct. 2052, 2059, 80 L.Ed.2d 674 (1984). If this burden is met, 3) this Court then considers the mishandled substantive claim, asking whether the deficient performance supports a conclusion "either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent." Walker, 933 P.2d at 333 n. 25 (quoting 22 O.S.Supp.1995, § 1089(C)(2)).

¶ 5 In Proposition I, the first threshold question is met as direct appeal counsel did not conduct the extra-record investigation into mitigation evidence now sought by post-conviction counsel.² We therefore turn to the second requirement under the new Act: whether such performance was deficient under the first prong of the Strickland test. Under this standard the analysis is whether counsel's performance was deficient under prevailing professional norms. Turrentine v. State, 965 P.2d 985, 989 (Okl.Cr.1998).

¶ 6 Petitioner has failed to show that direct appeal counsel's performance was deficient. Petitioner has merely speculated that further investigation would yield information which might have influenced the jury to spare his life. He has not specified what, if any information, has been discovered with further investigation. This same argument was raised on direct appeal by appellate counsel regarding trial counsel's performance. Along with the direct appeal brief, appellate counsel filed a Motion for Evidentiary Hearing on Sixth Amendment Claims seeking an evidentiary hearing on trial counsel's failure to present additional mitigating evidence and to seek a continuance so that further mitigation evidence could be obtained. This Court found the claims raised in the motion were merely requests for more time to develop and investigate additional mitigating evidence that appellate counsel claimed was available but not discovered by trial counsel. Patton, 1998 OK CR 66 ¶ 139, 973 P.2d 270. However, by failing to set forth specific evidence and facts that he had now discovered and claimed were not previously discovered, appellate counsel was in effect seeking discovery to find out if there was any additional evidence available, rather than an evidentiary hearing to include in the record evidence that had already been discovered. Id. at ¶ 140, 973 P.2d 270. The appropriate time for discovery is at trial, not on appeal.

¶ 7 Post-conviction counsel has now followed the same course of argument concerning direct appeal counsel. Once again counsel fails to set out specific evidence which has now been discovered and which could have been discovered with further investigation at the time of direct appeal. At this stage of the appellate process, speculation as to what additional investigation might bring and argument that counsel was ineffective for failing to seek additional investigation are unavailing. Here, direct appeal counsel recognized further investigation into the mitigating evidence could be done, but he alleged he was unable to conduct such an investigation. Petitioner's mere speculation as to the possible results of any further investigation at this late date is insufficient to warrant a finding of deficient performance on the part of appellate counsel.

¶ 8 As for Proposition II, the first threshold question is not met as appellate counsel challenged the failure to present additional mitigating evidence at trial.³ "That post-conviction counsel raises the claim[s] in a different posture than that raised on direct appeal is not grounds for reasserting the claims under the guise of ineffective assistance of appellate counsel." Turrentine, 965 P.2d at 989.

Further, the doctrine of res judicata does not allow the subdividing of an issue as a vehicle to relitigate at a different stage of the appellate process. . . . Just because post-conviction counsel has the benefit of reviewing appellate counsel's brief on direct appeal, and with the benefit of hindsight, envisions a new method of presenting the arguments is not a legal basis for disregard of the procedural bar. In other words, "post-conviction review does not afford defendants the opportunity to reassert claims in hopes that further argument alone may change the outcome in different proceedings." Trice v.

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