499 P.3d 771
Okla. Crim. App.2021Background
- Shaun Michael Bosse was convicted by jury of three counts of first-degree murder and one count of first-degree arson; jury imposed death sentences for each murder; convictions were affirmed on direct review and became final in 2018.
- Bosse filed a second post-conviction application (Feb. 20, 2019) raising: (1) lack of state jurisdiction because victims were Indians and crimes occurred in Indian Country (post-McGirt theory); (2) ineffective assistance of trial, appellate, and prior post-conviction counsel for failing to investigate/present mitigation; and (3) cumulative error.
- The OCCA remanded for an evidentiary hearing on whether the victims were Chickasaw and whether the Chickasaw Reservation had been disestablished; the trial court found the victims were Chickasaw and the reservation was not disestablished.
- The OCCA initially granted relief and ordered convictions reversed, but stayed mandate after the State sought review; later, in State ex rel. Matloff v. Wallace, the OCCA held McGirt is a procedural change that does not apply retroactively to convictions final before McGirt.
- Applying Matloff, the OCCA here (1) accepted the factual findings that the crimes occurred in Indian Country but denied relief because McGirt is not retroactive to Bosse's final convictions; (2) held Bosse's ineffective-assistance claims are procedurally barred (and fail on prejudice); and (3) denied cumulative-error relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| State lacked jurisdiction because crimes were against Indians in Indian Country (McGirt theory) | Bosse: victims were Chickasaw and crimes occurred on Chickasaw Reservation, so state lacked jurisdiction and convictions are void ab initio | State: even if Indian Country, McGirt is a procedural change announced after Bosse's convictions were final and should not be applied retroactively | Court: factual findings of Indian status and reservation affirmed, but McGirt not applied retroactively to final convictions; jurisdictional claim denied |
| Ineffective assistance of counsel (trial/appellate/post-conviction) | Bosse: trial counsel failed to investigate and present mitigation, prepare witnesses, and used obstructionist tactics; appellate and post-conviction counsel were deficient for not raising these claims; requests evidentiary hearing | State: factual basis was ascertainable earlier so claim is procedurally barred; alternatively, the record (overwhelming guilt) does not show prejudice required by statute | Court: claim procedurally barred because facts were reasonably discoverable earlier; alternatively, Bosse fails the clear-and-convincing prejudice standard; evidentiary hearing denied |
| Cumulative error | Bosse: cumulative effect of errors denied due process and reliable capital sentencing | State: errors previously raised/decided cannot be re-litigated in a successive post-conviction application | Court: Denied — successive application cannot relitigate previously decided errors |
Key Cases Cited
- McGirt v. Oklahoma, 140 S. Ct. 2452 (2020) (held historic reservation boundaries remain Indian Country unless Congress disestablished them)
- State ex rel. Matloff v. Wallace, 497 P.3d 686 (Okla. Cr. 2021) (held McGirt is a procedural change and does not apply retroactively to convictions final before McGirt)
- Bosse v. State, 360 P.3d 1203 (Okla. Cr. 2015) (affirming Bosse's convictions and sentences on direct appeal)
- Bosse v. State, 400 P.3d 834 (Okla. Cr. 2017) (post-McGirt reconsideration on remand; affirmed)
- Bosse v. State, 484 P.3d 286 (Okla. Cr. 2021) (initial OCCA opinion granting post-conviction relief based on McGirt, later set aside)
- Sanchez v. State, 406 P.3d 27 (Okla. Cr. 2017) (limits on successive post-conviction review and procedural bars)
- Coddington v. State, 259 P.3d 833 (Okla. Cr. 2011) (successive post-conviction applications may not relitigate previously decided errors)
- Sawyer v. Whitley, 505 U.S. 333 (1992) (miscarriage-of-justice standard for otherwise barred habeas claims concerning death penalty)
- Schlup v. Delo, 513 U.S. 298 (1995) (actual-innocence gateway permitting review of procedurally barred claims)