COLE v. STATE
2021 OK CR 28
| Okla. Crim. App. | 2021Background
- Benjamin Robert Cole, Sr. was convicted of First Degree Murder in Rogers County and sentenced to death; his direct appeal was denied in 2007.
- Cole filed multiple post-conviction applications; earlier collateral challenges were denied by this Court.
- In a successive post-conviction application, Cole argued the state court lacked subject-matter jurisdiction under McGirt v. Oklahoma because the victim (his daughter, B.C.) had Cherokee ancestry and the killing occurred within the Cherokee Nation.
- After an evidentiary hearing the Court initially granted relief based on that claim, but subsequent state decisions addressing McGirt’s collateral effect prompted reconsideration.
- This Court, relying on its non-retroactivity holding for McGirt and related state rulings, withdrew the earlier grant and denied Cole’s successive post-conviction application and motion to stay; the mandate was ordered issued.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the state court lacked jurisdiction under McGirt because the crime occurred in the Cherokee Nation and the victim had Cherokee blood | Cole: Victim’s Cherokee ancestry and location of crime bring the offense within federal/tribal jurisdiction under McGirt, so state court lacked jurisdiction | State: McGirt is a new procedural rule and does not apply retroactively on collateral review to void final state convictions; Cole’s successive petition is barred | Denied — Applying this Court’s Matloff-based non-retroactivity approach to McGirt, the successive post-conviction claim fails and relief and stay are denied |
Key Cases Cited
- McGirt v. Oklahoma, 140 S. Ct. 2452 (2020) (Supreme Court ruled major crimes involving Indians on the Muscogee (Creek) Reservation fall under federal jurisdiction)
- Sanchez v. State, 406 P.3d 27 (Okl.Cr. 2017) (governs narrow grounds for second or successive capital post-conviction applications)
- Cole v. State, 164 P.3d 1089 (Okl.Cr. 2007) (direct appeal denying relief)
- Cole v. State, 492 P.3d 11 (Okl.Cr. 2021) (initial post-conviction ruling granting relief based on McGirt; later withdrawn)
- Cole v. State, 495 P.3d 670 (Okl.Cr. 2021) (subsequent docketed action addressing withdrawal and final disposition)