COLE v. STATE, 2021 OK CR 28

Benjamin Robert Cole, Sr. was convicted by jury of First Degree Murder and sentenced to death in Rogers County, Oklahoma.
Cole's direct appeal was denied by this Court in 2007.
He filed multiple post-conviction applications; this is a successive capital post-conviction challenge.
Cole argued the state court lacked jurisdiction because the victim had Cherokee ancestry and the killing occurred within the Cherokee Nation, invoking McGirt v. Oklahoma.
The Court initially granted relief after an evidentiary hearing but later withdrew that order in light of this Court’s decision holding McGirt and related rulings are not retroactive on collateral review.
Applying that precedent, the Court denied Cole’s successive post-conviction application and motion to stay.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the state court lacked subject-matter jurisdiction under McGirt because the victim was Cherokee and the murder occurred within the Cherokee Nation	Cole: Victim had Cherokee blood and crime occurred on Cherokee Nation lands, so jurisdiction lies with federal/tribal authorities under McGirt	State: McGirt is a procedural rule and, under this Court’s retroactivity ruling, does not apply to void final state convictions on collateral review	Denied — Court applied its Matloff-based non-retroactivity rule and refused to apply McGirt retroactively to void Cole’s final conviction

McGirt v. Oklahoma, 140 S. Ct. 2452 (U.S. 2020) (U.S. Supreme Court holding major crimes involving Indians on reservation land are subject to federal jurisdiction)
Sanchez v. State, 406 P.3d 27 (Okla. Crim. App. 2017) (explains limited grounds for successive capital post-conviction applications)
Cole v. State, 164 P.3d 1089 (Okla. Crim. App. 2007) (Cole’s direct appeal denying relief)
Cole v. State, 492 P.3d 11 (Okla. Crim. App. 2021) (earlier post-conviction order granting relief after evidentiary hearing, later withdrawn)