Marcus L. CARGLE, Petitioner, v. The STATE of Oklahoma, Respondent.
No. PC-96-1584.
Court of Criminal Appeals of Oklahoma.
Oct. 17, 1997.
No response necessary.
ORDER GRANTING REQUEST TO APPEAR PRO HAC VICE OPINION DENYING APPLICATION FOR POST-CONVICTION RELIEF, EVIDENTIARY HEARING AND DISCOVERY
LUMPKIN, Judge.
Petitioner Marcus L. Cargle was convicted in the District Court of Oklahoma County in Case No. CF-93-6982 of Counts I and II, Murder in the First Degree (
I.
Before we address the post-conviction application itself, we must address a motion1 before the Court. Filed along with the Application was a Motion to Permit Entry of Appearance of Terri Lynn Marroquin Pro Hac Vice. Although it may now be moot,1 that motion was properly filed and is now GRANTED. Rules Creating and Controlling the Oklahoma Bar Association, 5 O.S. 1991, Ch.1, App. 1, Art. 2, § 5.
II.
Turning to the Application itself, we must again consider the narrow scope of review available under the amended Post-Conviction Procedure Act. As we have said numerous times,
the Post-Conviction Procedure Act was neither designed nor intended to provide applicants another direct appeal. Walker v. State, 933 P.2d 327, 330 (Okl.Cr.1997) (interpreting Act as amended); Fox v. State, 880 P.2d 383, 384 (Okl.Cr.1994), cert. denied, 514 U.S. 1005, 115 S.Ct. 1318, 131 L.Ed.2d 199 (1995) (same conclusion under Act before amendments). The Act has always provided petitioners with very limited grounds upon which to base a collateral attack on their judgments. Accordingly, claims which could have been raised in previous appeals but were not are generally waived; and claims raised on direct appeal are res judicata. Thomas v. State, 888 P.2d 522, 525 (Okl.Cr.1994), cert. denied, ___ U.S. ___, 116 S.Ct. 123, 133 L.Ed.2d 73 (1995); Castro v. State, 814 P.2d 158, 159 (Okl.Cr.1991), cert. denied, 502 U.S. 1063, 112 S.Ct. 947, 117 L.Ed.2d 116 (1992).
Conover v. State, 942 P.2d 229, (Okl.Cr.1997). These procedural bars still apply under the amended Act. The new Act makes it even more difficult for capital post-conviction applicants to avoid procedural bars. Walker, 933 P.2d at 331. Under the revised Act, only claims which “[w]ere not and could not have been raised” on direct appeal will be considered.
The amendments to the capital post-conviction review statute reflect the legislature‘s intent to honor and preserve the legal principle of finality of judgment, and we will narrowly construe these amendments to effectuate that intent. Given the newly refined and limited review afforded capital post-conviction applicants, we must also emphasize the importance of the direct appeal as the mechanism for raising all potentially meritorious claims. Because the direct appeal provides appellants their only opportunity to have this Court fully review all claims of error which might arguably warrant relief, we urge them to raise all such claims at that juncture.
Walker, 933 P.2d at 331 (footnote omitted, emphasis in original). With that dictate in mind, we now turn to Petitioner‘s claims.
III.
For his first proposition, Petitioner claims the trial court failed to properly instruct as to both the acts and mens rea of the crimes. This claim could have been raised on direct appeal, and is thereby waived.
Petitioner acknowledges this could have been raised on direct appeal, and argues in the alternative either trial counsel was ineffective for failing to raise this during trial, or appellate counsel was ineffective for failing to raise it in the direct appeal.
Concerning ineffective trial counsel, we find we cannot address the issue. Appellant raised the issue of ineffective trial counsel in his direct appeal. Cargle, 909 P.2d at 832-33. Accordingly, it is res judicata.
Additionally, even if the content of the argument here is different than it was on direct appeal, we still cannot address it. As we said in Walker, “an ineffective assistance of trial counsel claim could not have been raised on direct appeal if it requires ‘fact-finding outside the direct appeal record.‘” Id. 933 P.2d at 332 (quoting
Petitioner next claims appellate counsel was ineffective for failing to raise this issue in his direct appeal. In Walker, we set forth a three-prong test to review claims of ineffective appellate counsel.2 Under this analysis, (1) the threshold inquiry is whether appellate counsel actually committed the act
Here, it appears direct appeal counsel did in fact make an argument of ineffective trial counsel. Accordingly, Petitioner cannot pass the first threshold, as he cannot prove that direct appeal counsel failed to commit the act complained of, i.e., make an ineffective trial counsel argument. Accordingly, he cannot prove appellate counsel was ineffective.
Even assuming he did fail to commit the action now complained of, he has made no effort to show appellate counsel breached a duty owed to him, or that appellate counsel‘s judgment was “unreasonable under the circumstances or did not fall within the wide range of professional assistance” owed to a client by an attorney. Walker, 933 P.2d at 337. Furthermore, Petitioner fails to show any external impediment which precluded counsel from raising the issue. Conover, 942 P.2d at 233. This assignment of error is res judicata and waived.
In his second claim, Petitioner contends trial counsel was ineffective. He contends his attorney failed either to investigate or prepare for trial and was obviously unprepared for trial; failed to present evidence that would have called into question the truthfulness of key prosecution witnesses; failed to challenge police misrepresentation of the facts; failed to present evidence showing Petitioner was physically unable to commit the crimes; and failed to investigate or present mitigating evidence. He claims a “significant” portion of this evidence relies on evidence outside the direct appeal record.
We disagree. The question is not whether the evidence was outside the direct appeal record, but whether “the facts generating those claims were available to [Petitioner‘s] direct appeal counsel and thus either were or could have been used in his direct appeal.” Conover, 942 P.2d at 232 (quoting Walker, 933 P.2d at 332). Facts which were not in the direct appeal record here could have been discovered by direct appeal counsel.
Not surprisingly, Petitioner also argues that if we deem this proposition waived, he had ineffective appellate counsel. Again, Petitioner simply makes a bald statement that appellate counsel was ineffective, without making any effort to show why. Accordingly, he has failed to meet his burden of showing that appellate counsel breached a duty owed to him, Walker, 933 P.2d at 337, and wholly fails to show any external impediment which precluded counsel from raising the issue. Conover, 942 P.2d at 233. This proposition is waived.
The same rationale applies to Petitioner‘s third proposition of error, prosecutorial misconduct. Petitioner claims the district attorney, who had a history of animosity to his trial counsel, attacked both his counsel and himself. He also claims the prosecutor implied to the jury he knew facts they did not; vouched for certain witnesses’ credibility; and injected victim sympathy into the first stage of the trial.
Petitioner claims this could not have been raised on direct appeal, but does not state why. All these facts were in the direct appeal record, and is thereby waived as it could have been raised on direct appeal.
In Petitioner‘s fourth proposition, he claims the prosecution failed to provide him
Petitioner also claims the prosecution suppressed the identity of a police informant. He contends he learned of the informant when he testified at co-defendant Christopher Williams’ separate trial, where the informant testified Williams committed both murders. Petitioner implies one of the assistant district attorneys may have suborned perjury in that trial by trying to persuade the informant to testify Williams committed both murders. This is a serious allegation, which goes against the presumption of regularity at trial. However, Petitioner has provided nothing to rebut this presumption. See Hatch v. State, 924 P.2d 284, 295-96 (Okl. Cr. 1996). His application and the motion for evidentiary hearing contain nothing more than speculation that some evidence may be found, rather than providing facts which meet the threshold showing required to remand for an evidentiary hearing. Accordingly, we shall not review the allegation.
Petitioner also claims trial counsel was ineffective to the extent he knew some evidence was available but did not utilize it. The rationale set forth above which is used in discussing ineffective trial counsel also applies here: the issue is both res judicata, Smallwood, 937 P.2d at 115 n. 3; id. at 119 (Lumpkin, J., concurring in result), as well as waived. Walker, 933 P.2d at 332. Concerning his parenthetical assertion appellate counsel was also ineffective, this, too, is without merit, as he has failed to show counsel breached any duty owed to him, Walker, 933 P.2d at 337, or that there was an external impediment which prevented appellate counsel from raising the issue. Conover, 942 P.2d at 233. This proposition is waived.
For his fifth claim, Petitioner alleges juror misconduct during voir dire. He claims one of the jurors, Juror Cherry, lied during voir dire. According to Petitioner, the juror said during voir dire he could consider a penalty other than death; however, he claims in a subsequent interview with an investigator, the former juror stated he thought death was the only appropriate punishment for murder.
This proposition is waived, as there is no evidence to suggest that the juror who was interviewed for this proceeding was unwilling or unavailable to provide these same interviews at the time of the direct appeal. Therefore, there is nothing indicating this claim required fact-finding outside the record, and the claim is not properly raised in this post-conviction appeal. Smallwood, 937 P.2d at 115; Robinson v. State, 937 P.2d 101, 106 (Okl.Cr.1997).
Not surprisingly, Petitioner claims in the alternative that if this Court concludes the issue could have been raised on direct appeal, appellate counsel was ineffective for failing to do so. Again, Petitioner has made no effort to show appellate counsel breached a duty owed to him, or that appellate counsel‘s judgment was “unreasonable under the circumstances or did not fall within the wide range of professional assistance” owed to a client by an attorney. Walker, 933 P.2d at 337. Furthermore, Petitioner fails to show any external impediment which precluded counsel from raising the issue. Conover, 942 P.2d at 233.
For his last proposition, Petitioner claims the cumulative effect of errors in his case mandates reversal. He claims this proposition could not have been raised before, as it is dependent on the other propositions in his application. We have determined all his complaints on post-conviction are either res judicata or are waived. As these procedural bars prohibited us from examining the issues, let alone find error in them, this proposition is without merit. Mitchell v. State, 934 P.2d 346, 351 (Okl.Cr.1997) cert. denied, ___ U.S. ___, 117 S.Ct. 2489, 138 L.Ed.2d 996 (1997); Hooker v. State, 934 P.2d 352, 356 (Okl.Cr.1997).
Petitioner has also filed a motion for discovery in his case. As we have noted before, discovery is not required in post-conviction proceedings. Mitchell, 934 P.2d at 351. Petitioner, although alleging the prosecution withheld exculpatory evidence, has failed to comply with our Rule 9.7 which requires affidavits to rebut the presumption of regularity at trial and the presumption that prosecutors, as officers of the court, would adhere to their constitutional duty and turn over exculpatory evidence. Accordingly, discovery is denied. Rule 9.7(D)(3), Rules of the Court of Criminal Appeals,
Petitioner also requests leave of this Court to amend his application for post-conviction relief. Aside from the fact the revised post-conviction statute specifically prohibits such an action,
V.
Accordingly, Petitioner‘s Application for Post-Conviction Relief is DENIED. For the reasons given above, Petitioner‘s requests for discovery and evidentiary hearing are DENIED. Petitioner‘s request for leave to amend his Application is not properly before us, and is also DENIED.
1. Walker v. State, 933 P.2d 327 (Okl.Cr.), cert denied, ___ U.S. ___, 117 S.Ct. 2524, 138 L.Ed.2d 1024 (1997)
2. Braun v. State, 937 P.2d 505, 516 (Okl.Cr.1997) (Chapel, P.J., concurring in result).
STRUBHAR, V.P.J., and JOHNSON, J., concur.
CHAPEL, P.J., specially concurs.
LANE, J., concurs in results.
CHAPEL, Presiding Judge, specially concurring:
I agree Cargle‘s application for post-conviction relief should be denied. In analyzing Cargle‘s claims of ineffective assistance of appellate counsel, the majority states Cargle fails to show any “external impediment” to the issues in addition to properly analyzing Cargle‘s claims under Walker v. State.1 Failure to raise an “external impediment” is not part of the test for post-conviction relief under the revised capital post-conviction statutes, and this Court has refused to approve that additional requirement.2 I also note the opinion‘s misleading language regarding presumptions governing motions for discovery under Rule 9.7.3 Rule 9.7 requires affidavits to rebut the presumption of regularity at trial. However, the Rule itself does not contain any presumption that prosecutors will adhere to their duty as officers of the court and turn over exculpatory evidence. I believe the opinion intends to cite Rule 9.7 for the former presumption but not the latter.
LANE, Judge, concurring in results:
I concur in results by reason of stare decisis on the issue of what can be raised on post-conviction relief. I maintain my position that if the material is not in the original record it can be raised on post-conviction by authority of
3. Rule 9.7(D)(3),