Mayes v. State

367 (and Standing 10,1995 City prevailing-wage pronouncement October of clause. tract’s predicated supplemental on harm.6 subsequent opinion be economic the on re- must obligation paying the today incurred the of hearing), Prime I counsel the court would undertaking wage an then-prevailing Appeals’ opinion, vacate the of reverse wage into factored that the presumably that the trial court’s order and remand cause price. By accepting benefits of the contract proceedings prius for at further nisi to afford contract, deny- estopped that Prime opportunity an that Subcontractor to show as, undertaking’s validity.7 ing (a) its Inasmuch general contractor’s undertaking its record, Subcontractor has shown no on this payment then-prevailing wage the does of obligation, harm suffered from thе assumed pipeline the indeed rest in and hence came to infirmity standing challenge no the it has (b) by City be invalidated this invalida- Moreover, prevailing-wage of clause. the impairs ability tion Subcontractor’s to recov- that prudential bar of restraint commands price. Nothing er the full contract less in ad- constitutional issues not be resolved give standing would this Subcontractor necessity.8 of strict vance infirm, attack, promise pay as its wage. prevailing reveal, record we cannot This does not say, City opinion protects our Subcon- prevail- comply refusal to

tractor’s with obligation. absolutely no

ing-wage There is (a)

proof that the main contract between the (Noble

public builders Center at Research University State Train-

Oklahoma and I.L.S. Facility

ing at the Adminis- Federal Aviation City) Center in Oklahoma and the tration Raymond MAYES, Petitioner, William general job on contractor Subcontractor’s 10, pipeline was in on October 1995 v. (when down) (b) City was if in handed Oklahoma, Respondent. The STATE pipeline, was in that fact it whether Subcon- tractor’s claim to recover full contract its No. PC-95-1218. price impaired by con- general stood Appeals Court of Criminal of Oklahoma. pipeline posture. tract’s 10, July 1996.

SUMMARY Because the time this case was reached parties judge neither

for trial nor

assigned to the case had of our the benefit Co., 34, 603, Standing predicated injury Grocery must be tо an 34 608 on an sale Okl. 124 P. "direct, (1912). immediate which is and substan interest Party Estep, v. tial.” Democratic Oklahoma 634, 642-643, Okl., 271, (1982); Snyder, 8. In 472 U.S. S.Ct. Application 652 re 105 P.2d 274 2874, 2880, (1985); Okl., 605, 86 L.Ed.2d 504 v. Dept. Transp., ex Brockett State rel. P.2d 646 Arcades, Inc., 491, 501-502, Okl., (1982); Spokane 472 U.S. Lathrop, 609 Underside v. 645 P.2d 2794, 2801, (1985); 514, (1982); 86 L.Ed.2d 394 Cleary Corp. v. 517 Petroleum ‍​​‌​​‌‌‌​​‌​​‌​‌​‌​​‌‌​​‌​​​‌​​​‌​​​‌​​​‌‌​‌‌​​​‍Harri Chadha, 919, 937, Okl., son, 528, S.Ct. (1980). I.N.S. v. 103 621 P.2d 530 2764, 2776, (1983); Ashwander 288, 347, Valley Authority, v. Tennessee § terms 7. The of 15 O.S.1991 75 are: 483, 466, (1936) (Brandeis, 56 80 L.Ed. 688 voluntary acceptance a “A of the benefit of J., concurring); Wright Newspaper v. Grovе Sun equivalent 983, transaction is to a consent to all the Co., Okl., (1994); P.2d 990 n. 31 In re 873 obligations arising 639, as the from it so far facts Question Initiative Petition No. 347 State No. known, ought person Okl., C.J., are to be (Opala, known 813 P.2d accepting.” concurring); Westinghouse Corp., Smith v. Elec. D.W.L., Co., Okl., (1987); Engineering Inc. v. Goodner-Van 467 n. v. 732 P.2d Schwartz Okl., (1962); Diehl, Okl., (1977); P.2d Carlisle National P.2d Dablem Co., Okl., Development Department Safety, 234 P. Public Oil & Okl. ont v. (1924); 564-565 Shawnee Nat. Bank v. Purcell Whole Hendricksen, Hendricksen,

Mark Lanita Rеno, Thornton, El City, C.S. OMahoma for Petitioner. Edmondson, Attorney

W.A Drew General OMahoma, Howard, Sandra D. Assistant Attorney General, Chief, Appeals, Criminal City, Respondent. OMahoma for LUMPKIN, Judge. Raymond Mayes ap-

Petitioner William peals post- to this Court from the denial of conviction relief the District Court of Jef- County, ferson Case No. CRF-89-77. At the trial, jury conclusion of a Petitioner was con- (21 Degree victed of Murder in First 701.7) O.S.Supp.1982, § Conspiracy (21 421). O.S.1981, § Commit Murder After finding presence aggravating of one cir- especially cumstance —that the murder was heinous, jury atrocious or cruel —the recom- punishment mended of death murder and (10) $5,000 years conspira- ten and a fine for cy. This Court affirmed the convictions on appeal, direct and certiorari was denied Supreme Court of the United States. State, (Okl.Cr.1994), Mayes v. 887 P.2d 1288 — denied, U.S. -, cert. 115 S.Ct. (1995). (Okl.Cr.1994), State, cert. 880 P.2d v. I. — denied, -, 115 S.Ct. U.S. following propositions raised not This Court does L.Ed.2d the trial court: application of error his on direct an issue which was raised consider (failure (1)ineffective present counsel trial (and judicata) or an is therefore res (2) evidence); appellate mitigating on direct could have been raised issue which (failure cumulative ‍​​‌​​‌‌‌​​‌​​‌​‌​‌​​‌‌​​‌​​​‌​​​‌​​​‌​​​‌‌​‌‌​​​‍error counsel (and (4) (3) error; is appeal but which was not therefore аrgument); cumulative waived). State, present- weighed evidence Thomas v. 888 P.2d improperly — (5) trial; penalty (Okl.Cr.1994), denied, -, statute the death ed at the unconstitutional; in instruction error (1995); L.Ed.2d 73 Castro (failure jury what “life with- to define to the 158, 159 (Okl.Cr.1991), cert. meant). application, he In the parole” out evidentiary hearing to requested an also L.Ed.2d prove the claims. in an order denied relief The trial court III. 1995, 28, 25, August and filed August dated evidentiary hearing was held. No 1995.1 error, In his Petitioner first Court, to this appeals that denial Petitioner claims he received ineffective assistance (1) following propositions: setting forth the the trial level. He bases this on counsel at (failure present trial counsel to ineffective presented affidavits to this Court on direct (2) evidence); appellate mitigating family mem- appeal from various friends and (failure cumulative error counsel they presented have bers who claimed would ((a) (3) improp- argument); cumulative error mitigating showing Petitioner did evidence jury by trial court questioning er of the penalty. pre- not deserve the death He also concerning ability impose penal- the death post-convic- sented to the district court in his (b) inadmissible, ty; irrelevant admission application psycholo- an from a tion affidavit in thе form of a civil prejudicial and evidence gist. (c) settlement; prior improper evidence of propensity and Petitioner’s for vio- bad acts ap this issue on direct We addressed (d) lence; improper polygraph evidence peal. Mayes, 887 P.2d at 1314-16. Conse (e) examination; trial error court judicata, quently, it and we shall not is res asking ques- precluding defense counsel from State, again. Berget consider it 907 P.2d (f) bias; concerning inadmissible hear- tions (Okl.Cr.1995). 1078, 1081 statements; (g) denying proper say error cross-examination, (4) witness); key this dispose That does not of the affidavit weighed present- improperly evidence (5) psychologist. from the The record reflects trial; penalty the death statute ed at Gelbort, (6) psychologist, unconstitutional; Michael M. in instruction error (failure PhD., jury not Petitioner until to the what “life with- did interview to definе (7) meant); 1995, parole” appeal error the district out March after Petitioner’s direct denying post-conviction relief. court down. There is no evidence in was handed appeal direct record that Petitioner had

II. deficiency. According any kind of a mental ly, properly claim is before this Court on post-conviction procedure is not The O.S.1991,2 1080(d); § appeal. post conviction. See a second direct Fox intended be 28, following pertinent Petitioner's brief was filed without We dates: On 1995. 1. also note 20, 3, 1995, attorneys requests an Re- October Petitioner’s filed extension on December 1995. application appeal time. The trial spondent’s for an out of was filed without extension re- brief application granted 4, January reply court recommended the be quest No brief was on 1996. date, and this Court issuеd an Order on granting same by Petitioner. filed on November an out of time redesigned post-conviction proce- Error, completely 2. A Petition in Notice of Intent The gone capital effect since dure for cases has into Appeal Designation of Record were filed O.S.Supp. Petitioner’s case was filed. See November with the Clerk of this Court on 1089; 1088.1, O.S.Supp. §§ original Ch. was filed November 1995. The record Berget, 907 P.2d at 1085. chologist opined We find no merit “ap- was able to claim, however. pear outwardly,” ‘normal’ although testing “dysfunction would have revealed in the form analysis Our of a claim of ineffec reasoning, of deficits in judgment, problem begins presump tive trial counsel with the solving, insight, left sensoiy side motor abili- therefore, tion competent; trial counsel was cognition” ties and slowed and would have the burden is on Petitioner to demonstrate “prone odd, shown Petitioner was to making performance both a resulting deficient poorly thought out decisions which reflect a prejudice. Fisher v. foresight lack of anticipation of the out- (Okl.Cr.1987), 1011-12 However, come of his actions.” psycholo- gist also admitted in his affidavit Petitioner’s (citing v. Washington, Strickland “certainly mental status does not completely 668, 686, 104 2052, 2063-64, explain his current situation.” (1984)). Petitiоner must demonstrate evidence, Based on this Petitioner’s claim representation counsel’s was unreasonable must fail. psychologist The admitted in his prevailing professional norms, and the appear affidavit Petitioner would outwardly challenged action could not be considered normal; therefore, there would Fisher, nothing be strategy. sound trial 736 P.2d at indicating any Petitioner exhibited Strickland, mental (citing 688-89, impаirment. Accordingly, 2064-65; Petitioner has 104 S.Ct. at Kimmelman v. Morri son, failed to representa- demonstrate counsel’s 365, 106 S.Ct. tion (1986)). was prevailing pro- unreasonable under To prejudice, establish Petition fessional norms: we know of no rule re- er must show is probabili there a reasonable quiring attorney an that, to conduct ty errors, a mental but for counsel’s the result of evaluation on a defendant who proceeding the exhibits no would have been different. A signs one, of needing especially psy- as the probability reasonable is one that under chologist explain did not how mines Petitioner’s confidence in the outcome. Id. Al impairment though contributed to his actions in totality we consider the of the evi this case. fact-finder, dence which was before the the inquiry “ultimate focus of must be on the Furthermore, Petitioner has failed to fundamental fairness of proceeding the prejudice. show may That Petitioner have being Fisher,

whose result challenged.” been a slow learner not does mean he could Strickland, (quoting at 1012 not learn. Petitioner present has failed to 2068). 694-95, U.S. at 104 S.Ct. at We now evidence to showing by this Court that the turn to specific allegation. Petitioner’s adulthood, time he reached he not had Petitioner claims counsel killing was inеffec learned wrong. was That he had a at present tive trial because he any did not foresight anticipation “lack of and of the evidence of Petitioner’s mental disorders at outcome of his way actions” in no detracts trial. He claims neuropsychological trial, eval from the evidence at which showed uation of Petitioner in 1995 shows propositioned he suffers Petitioner was well in advance cognitive dysfunction plan victim, associated with of a to kill the and told several damage. brain The evaluation ‍​​‌​​‌‌‌​​‌​​‌​‌​‌​​‌‌​​‌​​​‌​​​‌​​​‌​​​‌‌​‌‌​​​‍shows money Peti friends he was to receive and a car for tioner had a intelligence quo below-normal helping his finding efforts someone who tient, cognitive handicaps and his help allowed would kill the considering victim. After very him to slowly. problem learn His solv comparing affidavit and it to the evidence ing reasoning and “moderately trial, abilities were adduced at we find Petitioner has failed impaired,” and he exhibited characteristics evidence that his counsel’s conduct “indicative of behavioral disinhibition or im- “so proper undermined the functioning of the pulsivity.” defects, Despite psy- these process adversarial that the trial cannot be 18, App. Rules Appeals, noting Criminal change, way In this we in no of of Rule express 9.7. Petitioner’s case portion was filed under the whether or not this of Petition-

post-conviction procedure which existed post- before er’s claim would be viable under the new the new procedures. law went into effect on November conviction that, Here, if not shown even just result.” Petitioner has having produced a on as relied Strickland, 686, 104 performance at S.Ct. at 2064. сounsel’s fell below his counsel, preju- expect we he was which reasons, is with- For these Indeed, we conducted diced that failure. out merit. of the cumulative error plain-error a review rehearing, argument petition IV. lacking. Mayes, 887 P.2d at 1325. found it proposition of er For his second appellate counsel was Petitioner cannot show ror, on direct claims his counsel Petitioner reason, same his third ineffective. For this because she faded to appeal was ineffective proposition, that the cumulative effect of er- argument. The present a “cumulative error” reversal, in his trial warrant is without rors direct counsel to raise mere failure of merit. itself, not, deprive a a claim does “reasonably petitioner effective assistance” Accordingly, both Petitioner’s second Strickland, counsel, at are merit.3 propositions third without amount to consti which would tutionally appeal. counsel on direct it, appeals phrased court

As one federal has V. science, an law is not an exact “[b]ecause proposition, claims In his fourth ordinary, lawyer may fail to rec reasonable improperly weighed giv- issue, this Court evidence when the ognize or to raise an even concerning available, prosecution witness en a yet provide still constitu issue is place which took Pelmer schedule and time events tionally effective assistance.” White, (11th Cir.1989). day of the murder. He claims that evi- 877 F.2d regrettable objective conclu- show that some factor external 3. This writer has come to the act, comply impeded post-conviction at the defense counsel's efforts to with as it еxisted sion procedural application, Id. at his is unsatisfac- the State's rule." time Petitioner filed petitioner could tory. S.Ct. at 2645. Unless a show A review of our cases reveals rather objective prevented doing job narrowing external factor his at its of the number of some torney than raising appeal, presented, post-con- on direct I be issues issues which should appeal preservation presume on direct of issues would the omission viction act allows for the being technically “appellate categorized was the result of counsel's studied we have as which ultimately preserved not to raise the ... issues on direct but under the rubric decision appeal” waived range appellate was within the "broad of assistance of counsel. and of ineffective 349, State, (Okl.Cr.1996). competence permits," professional Strickland P.2d 352 Trice v. 912 1426, (8th Avery, approach 1429 Cir. this Court to "walk too far Whitmore v. 26 F.3d This allows Armontrout, mirrors,” 1994), petitioner cause Whitmill v. and a could not establish into this hall of 1154, Cir.1994), (8th petitioner a could a "substantial" 42 F.3d 1156 and is coun- unless cumbersome, presumption. terproductive, unsatisfactory. See Rust v. reason to rebut this Zent, 155, Cir.1994); (6th jurisprudence appellate was 17 F.3d 160-61 see This writer believes 1474, Singletary, designed person 29 F.3d 1478 or to allow a con- also Roberts v. not created (11th Cir.1994). continually challenge could be heard if a to a con- A claim still victed of a crime petitioner I believe show the default was excused viction with new assertions of error. could miscarriage justice completely a of ex has overlooked what fundamental this Court "gate question ception, a to be asked: which has been desсribed as should have been the first way” through petitioner pass post-conviction a must counsel has shown which whether procedural will have his otherwise barred claim considered on cause for the default which allow Collins, 390, 404, so, post-conviction proceedings; v. 506 U.S. and if the merits. Herrera review 203, 853, 862, (1993). any prejudice resulting from the ex- 113 S.Ct. whether petitioner oppor- exception, almost first To fall within this a cused to raise the issue failure showing convincing always proper tunity by would have to make "a of has been shown clear and innocence,” Id., petitioner’s would to show a actual and actual have evidence to work to that, convincing disadvantage. “clear and evidence” but for I would have this substantial error, alleged juror recognize would fact that counsel "no reasonable "the mere guilty legal petitioner crime recognize a have found the of the of the factual or basis for failed claim, Lockhart, recog- despite he was convicted.” Wallace v. failed to raise the claim which or 823, (8th Cir.1994). it, proce- approach nizing This not constitute cause for a 12 F.3d does Carrier, allegations Murray of both would be used to address dural default.” 486-87, v. However, 2639, 2644, appellate L.Ed.2d and trial counsel. 106 S.Ct. Rather, majority (1986). position does not reflect the view of the existence of cause "must this prisoner ordinarily can this Court. turn on whether the other, dence was contradicted more reli- in Mayes, we noted 887 P.2d at there testimony. always able possibility exists the in OHahoma a governor could a commute sentence to one This Court reviewed this and other possibility a parole where exists. There- tеstimony resolving a claim the evidence fore, the law addressed in Simmons does not was insufficient convict Petitioner. accurately reflect the state of the law in Mayes, Accordingly, 887 P.2d at 1301-06. OHahoma. Simmons is therefore not inter- reviewed, proposition will not be as it is law, vening judicata. and this issue is res judicata. res again. We shall not it address VI. VIII. error, proposition For his fifth In his seventh last penalty Petitioner claims the dеath statutes error, Petitioner contends the district Specifical of this state are unconstitutional. failing court erred in evidentiary to hold an ly, § he claims Art. 15 of the OHahoma hearing. Evidentiary hearings post- at the prohibiting special constitution verdicts is vi conviction relief only level must be held when jury required designate olated when the is there exists “a material issue of fact.” 22 writing statutory aggravating circum 1083(b). O.S.1991, § However, the district waived, complaint stances. This as it could affidavits, court proof by can receive deposi presented appeal. have been on direct tions, testimony evidence, oral or other which At argument the end of his proposi on this O.S.1991, Here, it § did. we find tion, Petitioner adds one sentence in the last nothing required proof “which not contained paragraph that direct counsel was in those rеcords” before the district court. incompetent failing to raise this on direct State, (Okl. Johnson 373-74 appeal. presents argument no Cr.1991), denied, 926, 112 cert. authority in support of this claim. As this 1984, 118 L.Ed.2d 582 And since an claim adequately developed, is not we shall evidentiary hearing is not otherwise re not consider it. See Rules the Court quired, Id. at the district court did not Appeals, 3.5(C), Criminal ‍​​‌​​‌‌‌​​‌​​‌​‌​‌​​‌‌​​‌​​​‌​​​‌​​​‌​​​‌‌​‌‌​​​‍Rule 900-904 Okl. in deciding err the claims without an eviden (West) (to Deсs. at LXXII be codified at 22 tiary hearing. See also Moore v. O.S.Supp.1996, app.) ch. 18 — (Okl.Cr.), P.2d -, VII. Fox, (1995); 880 P.2d at 385. in his sixth of error Accordingly, the order of the district court claims properly the trial court erred in not denying post-conviction relief is AF- responding jury’s question concerning FIRMED. parole whether the life option really without Appeal An meant from the District Court of Petitioner would never Jef- be released County; George ferson the prison. from Honorable Petitioner admits we W. addressed Lindley, Judge. District appeal, this claim on direct Mayes, 887 P.2d 1316-18, authority but contends new from Raymond Petitioner, Mayes, William ap- Supreme the impacts holding. Court on our peals post- to this Court the denial of disagree. We In Simmons v. South Car conviction relief the District Court Jef- olina, County, U.S. 129 ferson No. Case CRF-89-77. Peti- (1994), L.Ed.2d 133 by jury Degree Court addressed a tioner was convicted of First specifically situation where a prohib statute Murder and was sentenced to death. He parole any ited circumstances when Conspiracy was also convicted of to Commit Murder, specific certain conditions were met. years The and was sentenced to ten punishment $5,000 degree for first murder was ei and a fine. This Court affirmed the death; life-without-parole ther life or appeal, convictions on direct and certiorari provision separate arose from a Supreme statute which was denied Court applicable in was that defendant’s Mayes case. As United States. — (Okl.Cr.1994),

-, AF post-conviction relief

Denial of

FIRMED. LANE, J.,

JOHNSON, P.J., concur.

CHAPEL, specially concurs. V.P.J.,

STRUBHAR, J., concurs result.

CHAPEL, Presiding Judge, specially Vice’

concurring. agree Mayes’s application post-

I that for I must

conviction relief should be denied.

briefly respond to dicta in footnote 3 which

suggests post-conviction that statutes Mayes applica- at the time filed his

current preservation

tion allow for the of issues tech- waived,’

nically and then states this stat-

utory approach too allows Court “walk

far into this hall of mirrors.” This Court’s

jurisprudence way expanded has no petitioners’ ability bring

extended claims capital post-conviction As the

on review. any acknowledges, generosity

footnote in re- itself,

viewing claims is found the statute apply.

which this Court is bound to Just as previous statute allowed some issues oth- review, preserved to be for

erwise waived specifically preserves

current statute also

certain ineffective assistance of counsel post-conviction This

claims review. expanded has not the ‍​​‌​​‌‌‌​​‌​​‌​‌​‌​​‌‌​​‌​​​‌​​​‌​​​‌​​​‌‌​‌‌​​​‍issues available post-conviction,

on but we cannot narrow beyond Legislature’s

those issues man-

dates.

In the Matter of 1994 ASSESSMENT

OF REAL PROPERTY OF LEXINGTON

DEVELOPMENT GROUP LLC.

No. 86791. Oklahoma, Appeals

Division 4.

June

Case Details

Case Name: Mayes v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Jul 10, 1996

Citation: 921 P.2d 367

Docket Number: PC-95-1218

Court Abbreviation: Okla. Crim. App.