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| Procedural Default |
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Slaughter v. State
, 2005 OK CR 6 (March 10,2005): End-game denial of post-conviction application (third) in Jimmie Ray Slaughter's capital case. The Court noted in paragraph 6 that factual innocence claims can be raised at any stage of an appeal; but the Court was not convinced that Slaughter made the case for actual innocence. Slaughter has been denied clemency and it appears his execution will take place on March 15, 2005. Give Steve Presson (Norman) some support and any ideas you might have to help.
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Benson v. State,
No. PC-97-204 (Okl.Cr., October 10, 1997) (Unpublished): COCA recognized that "ineffective assistance of trial counsel is an issue which can and should be raised in a defendant's direct appeal. This Court will not, however, require an attorney to raise an ineffective assistance claim against himself. Petitioner was represented at trial and on direct appeal by the same attorney. In this, Petitioner's first post-conviction proceeding, Petitioner is represented by different counsel. Thus the normal bars of waiver and res judicata will not apply in determining whether he is entitled to post-conviction relief upon allegations of ineffective assistance of trial counsel." (citations omitted).
Note the contrast between this holding and that in Neill v. State, 1997 OK CR 41, 943 P.2d 145 (applying procedural bar in capital post-conviction case when trial and appellate counsel the same).
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Lathrop v. State,
No. F-2004-82 (Okl.Cr., March 29, 2005) (Unpublished): Convictions on a plethora of drug charges and child endangerment stemming from the operation of a meth lab. COCA dismisses the three child endangerment convictions because at the time of the crimes, the statute creating the crime of child endangerment by having a meth lab in the child's residence had not taken effect [it took effect on July 1, 2001]. COCA dismissed these convictions even though Lathrop did not raise them on appeal(!) [in a footnote, the court recognized that it had dismissed the same counts in a co-defendant's appeal]. Note this case for further reference to show how COCA does not apply waiver rules in an evenhanded and consistent manner (this helps in federal court habeas proceedings to defend against procedural defaults). Also noteworthy is Judge Lumpkin's bitter dissent, chiding the majority for engaging in "equity jurisprudence" and doing the work of the appellate lawyer. It is interesting that Judge Lumpkin explicitly says what his opinions have alluded to for years: in his view, equity [i.e., justice] has no place in the jurisprudence of the court.
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Davis v. State,
2005 OK CR 21 (October 27, 2005): Capital post-conviction case with no relief, but nevertheless important because COCA reverses its rule that when trial and appellate counsel are the same, appellate counsel must still raise IAC (the Court noted its position is in the minority). The Court applied recent changes to the Capital Post-Conviction Procedure Act and jettisoned the Walker analysis in favor of the straight Strickland IAC test. The Tenth Circuit did not apply procedural default to such claims anyway, but it's still a good thing as far as state law is concerned.
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Murphy v. State,
2005 OK CR 25 (Okl.Cr., December 7, 2005): Second capital post-conviction relief application raising an excruciatingly detailed claim involving jurisdiction of the murder (claiming it actually occurred on Indian Land), an attack on the execution methods, and raising again the Mental Retardation claim that had been rejected previously (it was raised the first time in light of the Supreme Court's opinion in Atkins v. Virginia which barred the execution of the mentally retarded, but left to the States the task of defining what mental retardation means). COCA rejected the first two claims but remanded the MR claim to the District Court to conduct a jury trial on the issue. Extraordinary relief in a second PC application where the claim had been raised and rejected previously (trust me folks, that just never happens).
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Franklin v. Anderson,
No. 03-3636 (6th Cir., January 9, 2006): Capital habeas winner on biased juror grounds (she just did not understand the presumption of innocence) that got to federal court via an ineffective assistance of appellate counsel claim. Good discussion of procedural default principles as the Circuit held that Ohio's rules were not strictly or regularly followed and thus could not serve to default the claim.
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Hargis v. State,
No. RE-2004-1015 (Okl.Cr., January 19, 2006) (unpublished): Revocation case where poor Hargis was revoked in full after what looks like efforts by the District Court to give him a chance to get his act together. No error on the revocation, or the revocation in full, but a big monkey-wrench gets thrown into the mix when Hargis attacks the underlying Statutory Rape count because he was seventeen at the time he entered his plea which did not meet the elements of the offense and clearly the conviction and J&S is void. But, he did not pursue a certiorari appeal and the ten days had expired and, moreover, this appeal concerns only the District Court's revocation of the suspended sentences and cannot be used to attack the underlying conviction. Yet, the Court vacates the Rape count as void on its face. How did the Court do it? By "converting" the case into an Application for Post-Conviction Relief and addressing the fatal error anyway(!) That is some fancy footwork to achieve what is clearly a fair and legally compelled result, but tuck this case away as an example of the Court playing fast and loose with its procedural default rules in order to address the merits of a case.
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Valdez v. State,
2002 OK CR 20, 46 P.3d 703: Oklahoma Court of Criminal Appeals considered claims raised in a second post-conviction application on the merits and granted relief on those claims, recognizing that it had the power to grant relief "when an error complained of has resulted in a substantial miscarriage of justice, or constitutes a substantial violation of constitutional or statutory right."
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Johnny Freddy Locust v. State,
No. F-2004-997 (Okl.Cr., April 3, 2006) (unpublished): Locust was convicted of Burg I (AFCF) and sentenced to 20 years in Tulsa County. There are two interesting legal rulings in this case. First, in Burglary cases there apparently is a jury instruction based on a case (Roberts v. State, 2001 OK CR 14) dealing with the issue of consent to enter the premises. The Court held that defense counsel was deficient for not requesting the instruction, but this deficiency did not relieve the trial court of its duty to give it. The Court thus found plain error occurred, but unfortunately for Locust the error was harmless. Second, Burg I is an 85% crime but defense counsel did not request an jury instruction that any time imposed must be served at 85% and the issue was not raised on appeal. NEVERTHELESS, the Court addressed the issue because the appeal was pending when Anderson v. State, 2006 OK CR 6 (the case holding that an 85% instruction is proper) was decided(!!) This is significant because such issues are usually considered waived. The Court modified the sentence from 20 to 15 instead of remanding for a new trial, but that is still a good result and saves Locust some real calendar years to serve.
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Rosales v. Dretke,
No. 04-70046 (5th Cir., April 3, 2006): Capital habeas winner on a procedural issue. The Circuit held that the procedural bar applied by the Texas Court of Criminal Appeals to a Batson claim was not "firmly established and regularly followed" by that court.
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House v. Bell,
No. 04-8990 (U.S., June 12, 2006): Habeas Corpus; Procedural Default: In the murky world of federal habeas corpus, if a litigant fails to comply with a state procedural rule and the state courts do not address the merits of the claim, the federal courts will follow suit and refuse to address the claim as well. There are exceptions of course, and one of them is if the Petitioner can show a colorable claim of actual innocence. In this case, the Court finds that House met this stringent standard by introducing evidence of DNA testing indicating that another person may have committed the crime (or at least he did not do it). NOTE: this just means that he gets the federal courts to hear the claims he raised; it does not mean he is innocent and gets to go home. Still, a good case that gives hope to other Petitioners.
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Sporn v. State,
2006 OK CR 30 (Okl.Cr., July 19, 2006): Habeas Corpus; Procedural Default: Sporn had his suspended sentences revoked. He appealed. The revocations were affirmed. He pursued his claims in post-conviction proceedings, alleging for the first time that he received ineffective assistance of trial counsel at the revocation hearing. The Court affirmed the general rule that failure to raise the IAC claim on direct appeal waived it. The opinion was published to address the contrast between the Court's rule and that used in the federal system. The feds view IAC claims as deserving extra-record development and thus have rules that such claims must be brought in post-conviction proceedings (unless the claim can be resolved solely on the existing record). The fed rule is a function of supervisory powers rather than constitutional in dimension and the Court of Criminal Appeals chose to not follow the federal rule.
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Anderson v. Sirmons,
No. 04-6397 (10th Cir., February 21, 2007) (Published): Habeas Corpus; Capital Habeas Cases; Procedural Default; Ineffective Assistance of Counsel: REVERSAL OF A DEATH SENTENCE of an Oklahoma death row inmate based upon penalty phase IAC because trial counsel focused almost exclusively on the first-stage of the trial and failed to uncover mitigating evidence in the form of family history, mental health history, and drug usage. The Circuit stated: "the absence of this readily available mitigation evidence left the jury with no explanation for the murders other than the prosecution's assertion Anderson was "evil." Although the case against Anderson was strong and the murders in this case were horrific, courts have not hesitated to grant relief in similar circumstances where the absence of available mitigation evidence left the jury with a "pitifully incomplete" picture of the defendant. Had the jury been presented a complete picture of Anderson's background and history, there is a reasonable probability at least one juror would have struck a different balance between the mitigating and aggravating factors." NOTE: The panel also noted that Rule 9.7(G) of the Rules of the Oklahoma Court of Criminal Appeals (requiring subsequent post-conviction applications to be filed within 60 days new facts are discovered) is not "adequate" to serve as a procedural bar because COCA itself does not always follow it.
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Magar v. Parker,
No. 06-6369 (10th Cir., June 19, 2007) (Published): Habeas Corpus; COA & Procedural Default: Magar, an Oklahoma inmate, challenged the imposition of prison discipline which cost him some earned good behavior credits. Magar exhausted his remedies through DOC and when he was denied there he proceeded to federal court via a writ of habeas corpus. The District Court dismissed the case and Magar sought a Certificate of Appealability in the Circuit. Unfortunately for Magar, Oklahoma amended its statutes at the time of his case and gave inmates such as him the right to judicial review of loss of earned credits. Thus, Magar's claim was procedurally defaulted because he did not exhaust his state remedies and he could not show cause and prejudice sufficient to excuse the default.
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Leyva v. Williams,
No. 05-2371 (3rd Cir., October 3, 2007): Habeas Corpus; Procedural Default: In this federal habeas case challenging the dismissal of a petition filed by a state inmate, the circuit held that Pennsylvania's "affidavit rule", which requires a litigant to submit an affidavit that trial counsel would have been "available and willing" to testify on an IAC claim, was not firmly established or regularly followed and thus could not form the basis of a procedural default. Remanded to the District Court for consideration on the merits.
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