Valdez v. State

• Decision Date: 01 May 2002
• Docket Number: No. PCD 2001-1011.,PCD 2001-1011.
• Citation: 2002 OK CR 20,46 P.3d 703
• Parties: Gerardo VALDEZ, Petitioner, v. STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

46 P.3d 703

2002 OK CR 20

Gerardo VALDEZ, Petitioner, v. STATE of Oklahoma, Respondent.

No. PCD 2001-1011.

Court of Criminal Appeals of Oklahoma.

May 1, 2002.

Robert A. Nance, F. Andrew Fugitt, Oklahoma City, OK, for Petitioner.

Margaret K. Pfeiffer, Lee Ann Anderson McCall, Sullivan & Cromwell, Washington, DC, for Petitioner.

Sandra L. Babcock, Attorney at Law, Minneapolis, MN, for Amicus Curiae.

Susan Otto, Federal Public Defender for the Western District, Oklahoma City, OK, for Petitioner.

W.A. Drew Edmondson, Attorney General of Oklahoma, Robert Whittaker, Assistant Attorney General, Oklahoma City, OK, for Respondent.

ORDER GRANTING PETITIONER'S MOTION TO FILE SUBSTITUTED REPLY MEMORANDUM; ORDER DENYING MOTION FOR EVIDENTIARY HEARING AND DISCOVERY; OPINION GRANTING SECOND APPLICATION FOR POST-CONVICTION RELIEF AND REMANDING FOR RESENTENCING

Opinion by JOHNSON, V.P.J.

¶ 1 Gerardo Valdez, Petitioner, was convicted of First Degree Malice Aforethought Murder and sentenced to death in Grady County District Court, Case No. CRF 89-139. Valdez appealed his Judgment and Sentence to this Court and we affirmed.¹ Valdez appealed to the United States Supreme Court and his Petition for a Writ of Certiorari was denied.² Valdez filed his original Application for Relief in this Court, in accordance with 22 O.S.Supp.1995, § 1089(D)(1), and that Application was denied.³ Petitioner filed a Petition for a Writ of Habeas Corpus in the Western District of Oklahoma and the Petition was denied.⁴ His appeal to this Court was denied; thereafter, his Petition for a Writ of Certiorari to the United States Supreme Court was denied.⁵

¶ 2 In April of 2001, the State of Oklahoma filed its application for order setting execution date, and this Court scheduled Petitioner's execution for June 19, 2001. See Order Setting Execution Date, D 1990-461 (April 23, 2001)(not for publication). Petitioner requested a clemency hearing and the Oklahoma Pardon and Parole Board voted three to one to recommend clemency to the Governor. On June 18, 2001, Frank Keating, Governor of Oklahoma, granted a thirty (30) day stay of execution to evaluate the recommendation to grant clemency.⁶ He denied the recommendation for clemency on July 20, 2001.⁷ Thereafter, upon request of the State of Oklahoma, this Court scheduled Petitioner's execution for August 30, 2001. See Order Setting Execution Date, D 1990-461 (August 1, 2001)(not for publication). Governor Keating issued a second thirty (30) day stay of execution on August 17, 2001.⁸

¶ 3 On August 22, 2001, Petitioner, through counsel, filed a Second Application for Post-Conviction Relief. Also filed that day was a Motion for Evidentiary Hearing and Discovery, an Application for Special Admission of Non Resident Attorneys, and a Motion for Leave to File Amicus Curiae Brief from the Government of Mexico. We directed the State of Oklahoma to file a Response to Petitioner's Second Application for Post-Conviction Relief, granted the Motion of the Mexican Government to file an Amicus brief, granted the Applications for Special Admission of Non Resident Attorneys, stayed the order for execution indefinitely pending the outcome of these proceedings, and established a briefing schedule. See Order Directing Response, PCD XXXX-XXXX (September 10, 2001)(not for publication).

¶ 4 Attorneys Margaret Pfeifer, LeeAnn Anderson McCall, Sandra Babcock, and Robert Nance entered their appearances in the case. In accordance with the schedule set forth in our September 10th, 2001 Order, the State of Oklahoma filed its Response and its two volume Appendix on November 9, 2001. The Brief Amicus Curiae of the United Mexican States was filed on November 9, 2001. On November 20, 2001, Petitioner, through counsel, filed a Motion for Leave to File Reply Memorandum, with the Reply Memorandum attached; on November 27, 2001, Petitioner moved to substitute the proposed Reply Brief. Having considered that request, we find Petitioner's Motion for Leave to file the substituted Reply Memorandum should be and hereby is GRANTED.

¶ 5 The rules regarding the filing and review of subsequent applications for post-conviction relief in capital cases are set forth in Rule 9.7(G), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2001) and 22 O.S.2001, § 1089(D)(8) and (9). Rule 9.7(G) provides:

(1) A subsequent application for post-conviction relief shall not be considered, unless it contains claims which have not been and could not have been previously presented in the original application because the factual or legal basis was unavailable, as defined in Section 1089(D)(9) of Title 22;

(2) An original application for post-conviction relief not filed in a timely manner shall not be considered, unless it contains claims which have not been and could not have been previously presented in a timely original application because the factual or legal basis was unavailable, as defined in Section 1089(D)(9) of Title 22.

(3) No subsequent application for post-conviction relief shall be considered by this Court unless it is filed within sixty (60) days from the date the previously unavailable legal or factual basis serving as the basis for a new issue is announced or discovered.

Title 22, Section 1089(D)(8) provides that if a subsequent application for post-conviction relief is filed, we may not consider its merits or grant relief unless the application "contains specific facts establishing that the current claims and issues have not been and could not have been presented previously" because the factual or legal basis was unavailable. 22 O.S.Supp.1995, § 1089(D)(1); see also Sellers v. State, 1999 OK CR 6, ¶ 2, 973 P.2d 894, 895

. We now consider Petitioner's propositions in light of these restrictions.

¶ 6 Certain factual claims are not disputed in this proceeding. The parties agree that the State of Oklahoma did not comply with the requirements of Article 36 of the Vienna Convention on Consular Relations,⁹ which requires local authorities to notify a detained foreign national, without delay, of his right to communicate with his consulate. Upon the detainee's request, Article 36 requires the authorities to notify consular officials of the person's incarceration without delay. Vienna Convention, art. 36, 21 U.S.T. at 100-101. Because authorities in the State of Oklahoma did not comply with Article 36, the Mexican consulate was not notified of Valdez's arrest for First Degree Murder. The Government of Mexico did not learn of Valdez's arrest, conviction and sentence until April of 2001, when one of Valdez's relatives contacted the Mexican consulate in El Paso, Texas and informed consular officials of Valdez's upcoming execution in Oklahoma. ¶ 7 Once informed, consular officials assisted Valdez at his clemency hearing before the Oklahoma Board of Pardons and Paroles. The Government of Mexico retained experts and experienced attorney(s) to assist Valdez.¹⁰ Through investigation of his background and medical history, it was learned Valdez suffers from severe organic brain damage¹¹; was born into extreme poverty; received limited education, and grew up in a family plagued by alcohol abuse and instability. Most significant of these findings, according to counsel for Valdez, is that he experienced head injuries in his youth which greatly contributed to and altered his behavior.

¶ 8 According to the experts who evaluated Valdez's Quantitative Electroencephalogram (QEEG), damage to the frontal lobe of the brain-as indicated in Valdez' QEEG-disrupts the frontal lobes' ability to regulate the temporal lobes. "This malfunction creates thought disturbances, impairs judgment, and compromises impulse control . . . . Use of alcohol would exacerbate these problems."¹² Another syndrome associated with the type of brain damage Petitioner has is the distortion of religious beliefs.

¶ 9 This information was presented to the Oklahoma Pardon and Parole Board at Valdez's clemency hearing, and as a result, the Board recommended that Valdez' death sentence be commuted to life in prison without the possibility of parole. This newly developed information, obtained through the Mexican consulates efforts and investigation, was then presented to Governor Frank Keating and he denied clemency. While acknowledging the State of Oklahoma had not complied with Article 36 of the Vienna Convention, Governor Keating stated he believed the violation did not have a prejudicial effect on the jury's determination of guilt and sentence.¹³

¶ 10 In this subsequent Application for Post-Conviction Relief, Petitioner raises four grounds for relief:

1. This Court must follow the decision of the International Court of Justice in LaGrand¹⁴ and provide relief on the basis of Oklahoma's admitted violation of his rights under Article 36 of the Vienna Convention on Consular Relations;¹⁵

2. Mr. Valdez is entitled to relief regardless of proof that Oklahoma's violation of Article 36 was prejudicial;¹⁶

3. This Court must afford Mr. Valdez a full and fair opportunity to challenge his conviction and sentence on the basis of Oklahoma's admitted violation of Article 36;¹⁷ and

4. Mr. Valdez is entitled to a new trial.¹⁸

¶ 11 As noted above, we must consider these claims in light of the restrictions set forth in 22 O.S.Supp.1998, § 1089(D)(8) & (9). A legal basis of a claim is unavailable if: (1) it was not recognized by or could not have been reasonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state on or before that date; or (2) it is a new rule of constitutional law that was given retroactive effect by the United States Supreme Court or a court of appellate jurisdiction of this state and had not been announced on or before that date. A factual basis of a claim is unavailable if the factual basis was not ascertainable through the exercise of reasonable diligence on or before...