Paxton v. State
910 P.2d 1059
Okla. Crim. App.
1996
Check Treatment

*1 10(b). C.J., KAUGER, V.C.J., WILSON, § ALMA overturning that construction LAVENDER, SIMMS, HARGRAVE, and provides private for a clearly Section JJ., WATT, OPALA, materially par- SUMMERS for those who cause of action concur. or in the fraudulent sale. ticipate aid 10(b) addition, § is not the federal

In 408(b). Instead, federal §of

equivalent §at 12 of the

corollary §to 408 is found 771). (15 § See of 1938 U.S.C.

Securities Act D., Dorwart, Holden, F. “An

generally Act,” 25 Securities

Overview the Oklahoma is Central Bank

Okla.L.Rev. 184 Wayne Appellant, PAXTON, ease us. dispositive before Kenneth WAS IMPROP- JUDGMENT SUMMARY ER Oklahoma, Appellee. STATE only Summary judgment appropriate No. PC-95-473. no appears it that there is substantial where controversy any material fact and that Appeals Court of Criminal of Oklahoma. judgment matter party is as a one entitled Jan. Co., Publishing v. Oklahoma of law. Sellers (Okla.1984); Daugherty P.2d (Okla. Ass’n, Coop. Farmers

1984). review, On all inferences and conclu underlying to be from the facts

sions drawn light in the most favorable

will be reviewed motion for sum party opposing judgment. supra; Red

mary Daugherty, Oklahoma, Baptist Medical

wine Center of (Okla.1983).

Inc., 679 summary judg partial motion ultimately “swearing match” became a

ment produced the Plaintiffs affidavits which showing securities

and other documents perpetrated Engine Works

fraud Sullivan coun The Defendants

and the Defendants. explaining the circum

tered with documents way which showed no

stances of the case essence, when viewed

fraud occurred. Defendants, light most favorable facts in substantial con find material are

we

troversy. Consequently, the Plaintiffs were law, judgment as a matter of entitled to prove their to the trier of fact. must case

but matter must be remanded to the district

This jury court decide. also, 867 P.2d 1309. See reasons, foregoing For above Appeals is VACAT- opinion the Court

ED, court RE- judgment the district

VERSED, REMANDED the ease proceedings consis- court for further

district opinion. with this

tent *2 (Okl.Cr.1993). peti A P.2d 1309 rehearing was denied this Court

tion petition January 1994 and a for certiorari subsequently by the United was denied *3 Supreme v. States Court. Paxton Okla 227, homa, 115 S.Ct. 130 application L.Ed.2d 153 Petitioner’s post-conviction relief was filed the for County of Oklahoma and District Court sub 4, sequently by May the court on denied which the Petitioner 1995. It is denial appeals. asking this

Petitioner is now Court validity the of his conviction and review the time. This sentence for third Court’s strictly of claims is consideration provisions by limited the of the Post-Convic O.S.1991, § 22 1080 et tion Procedure Act. application seq.1. The act is limited to reason, which, only claims for whatever those appeal. could not have been raised on direct (Okl.Cr. State, 1138, v. 704 P.2d 1140 Jones 1985). and Issues which were raised decided appeal barred from further on direct are by judicata. res Castro v. consideration State, 158, P.2d 814 159 cert. 1063, 947, 112 117 502 U.S. State, (1992); 116 v. 693 L.Ed.2d Coleman O.S.1991, (Okl.Cr.1984); § 4 22 1086. P.2d ap Issues which not raised on direct were Werneke, Chris- Vicki Ruth Adams Kristi peal, could been raised are waived. but have System, topher, Indigent Oklahoma Defense (Okl.Cr.), 683, Rojem 829 684 Norman, for Petitioner. 958, cert. 506 U.S. Edmondson, General, Attorney W.A. Drew (1992); Smith Blalock, Attorney A. Diane Assistant Gener- (Okl.Cr.1976); O.S.1991, 1351, 22 1352 al, City, Respondent. for Oklahoma exception § 1086. An rules exists these ground when the court finds relief OPINION AFFIRMING DENIAL OF “for reason was not asserted which sufficient RELIEF POST-CONVICTION inadequately in the or was raised asserted LUMPKIN, Judge: prior post-conviction relief or application for change intervening in constitutional when an Wayne ap Petitioner Kenneth Paxton has judgment and sentence.” impacts law pealed this Court from order (Okl.Cr. Bryson 334 903 County denying District Court Oklahoma 1995); 684; O.S.1991, Rojem, 829 P.2d at 22 post-conviction his relief § 1086. No. first de Case CRF 89-765. Petitioner’s I, IX, XI, are gree Proposition murder conviction and death sentence Nos. and by only propositions which contain issues were affirmed this Court in Paxton capital gov- appeal post-conviction appli- 1. cases is tioner's direct Post-conviction relief by O.S.Supp.1995, prior § filed enactment and 1089. Subsection cation were erned post-conviction provides specifically all not date of the current stat- D that matters ad- effective arguments regarding provisions therefore consid- dressed of section 1089 are utes and appeal reviewed in subject provisions of his direct must be Post-Conviction eration Act, O.S.1991, seq. § et that context. Procedure Peti- raised, claim which were could have 2064. When a of ineffectiveness of raised, appeal. Proposition disposed grounds on can on been direct counsel prejudice, appeal II VI were raised on direct lack that Nos. course should be fol judicata.2 Id. and are therefore barred res lowed. at at IV, V, VII, Ill, Proposition Nos. VIII and X at To both L.Ed.2d meet the deficient performance prejudice prongs, issues which could have been raised on are Petitioner appeal appellate but not and are that direct were therefore must establish his counsel reversal, warranting waived.3 failed to issues raise modification of sentence or remand for resen error, proposition of In his first Hooks, 1124; tencing. 902 P.2d at Mann v. argues he was denied effective assistance of any appellate counsel. He asserts that claim *4 - denied, -, 1869, 114 S.Ct. U.S. 128 post-conviction raised on and found to have (1994). L.Ed.2d 490 by appellate been waived counsel’s failure to appeal raise the issue on direct is indicative We have examined each claim of appellate of ineffective assistance of counsel. alleged, individually ineffectiveness and in analyzing In aggregate, claims of ineffective the that and conclude none war appellate by guided counsel this Court is the rant relief. represented Petitioner was in Supreme by Court’s in appeal Appellate decision Strickland v. the direct the Public 668, 104 Washington, 2062, Office, predecessor 466 U.S. S.Ct. 80 Defender’s to the OHa- (1984). State, Indigent System. Appellate Hooks v. 902 P.2d homa Defense (Okl.Cr.1995); State, presented 1120 Castro 880 P.2d counsel a Court with thor - 387, (Okl.Cr.1994), denied, ough, relevant, 388-9 cert. raising well-researched brief -, 1375, 115 original U.S. S.Ct. 131 L.Ed.2d 229 well-reasoned issues. The fact the (1995). Cartwright also appellate every See 708 did counsel not raise issue 592, counsel, by 594 cert. post-conviction 474 now raised the 1073, 837, Defender, 106 Indigent U.S. 88 L.Ed.2d 808 OHahoma is not evidence (1986). The for basic test ineffectiveness of of It is the appellate ineffectiveness. role of carefully counsel is “whether develop counsel’s conduct so un counsel to select and the proper functioning legal presented dermined the of the ad issues to be the court and process every versarial that the trial cannot not raise non-frivolous issue conceivab having produced just relied on appellate a result.” le.4 An brief meets Sixth Amend Strickland, requirements 466 U.S. at at if presents 2064. ment it relevant appellant by bears the of showing supported burden issues which are facts and au performance both that thority counsel’s was deficient sufficient enable this Court to con performance that preju Nguyen such deficient sider them. diced the at defense. Id. 104 S.Ct. at 179 Proposition Proposition 2. In II Petitioner he was de VII asserts trial. asserts trial court error in Propo give failing requested jury nied effective assistance of trial counsel. the defendant's challenges sentence, jury flight. defining sition VI instruction on a life instruction death sen- appeal, parole. Since Petitioner's direct tence a sentence of life without flight Proposition pen- has instruction been limited. See VIII attacks Oklahoma's death (Okl.Cr.1993). alty procedures. Proposition Mitchell v. 876 P.2d 682 statutes and In X However, (Okl. argues in Rivers v. that Petitioner cumulative error raised on Cr.1994) appeal this Court that held Mitchell does not direct a warrants new trial. apply retroactively. honestly 4.If counsel finds a factual basis Proposition allegation In III Petitioner attacks a ineffective counsel within the attor- office, manslaughter ney's used conviction the State as own that be re- information should aggravation during sentencing ported proper oversight evidence in administrative au- stage Proposition thority appropriate of trial. In IV Petitioner as- action. If the facts are presence deputy appli- serts the of a behind sheriff’s such the Rules of Professional Conduct are cable, presumption requires attorney witness at stand trial violated his Rule 8.3 a licensed Proposition report innocence. V In Petitioner claims that conduct to the Oklahoma Bar Associ- O.S.1991, fading App. the trial court abused in See its discretion ation. Castro, Ch. 3-A. See juror allegedly slept during a remove who 390 n. 3. at ap- carefully Having examined 125 L.Ed.2d findings Court’s plication and the District allegations raised herein Finding none of the law, find that modification, fact conclusions of we reversal, or resentenc- warrant is entitled to relief and assis of ineffective ing, find no evidence we be, should order of the District Court appellate counsel. tance of hereby AFFIRMED. Proposition IX Petitioner asserts right JOHNSON, P.J., to ac his

he was denied constitutional and LANE and STRUBHAR, JJ., courts and effective assistance cess to the concur. confidential contact the denial of counsel CHAPEL, V.P.J., concurs result. ex and defense

visits with defense counsel argues the trial court erred perts. Petitioner CHAPEL, Presiding Judge, Vice claims refusing post-conviction to hold his concurring in result: pending resolution of Mann abeyance opinion suggests that of this Footnote four (W.D.Okla.1 F.Supp. 894 Reynolds, lawyer alleging ineffective assistance 993).5 consistently rejected This Court has alleged inef- report also counsel should claims, finding a collateral issue them Mann to the Oklahoma Bar Association fectiveness purview of properly brought under the *5 the Rules a of Professional violation State, 907 P.2d Berget v. post-conviction. separately emphasize I write Conduct. (Okl.Cr.1995); Clayton v. a lawyer may particu- ineffective in that a - (Okl.Cr.), U.S. Pro- violating Rules of lar without case (1995); 133 L.Ed.2d ineffectiveness fessional Conduct. Because 1253, 1256 Moore v. professional are often mutu- misconduct U.S. -, rt. ce ally exclusive, many cases ineffectiveness (1995); Nguyen any obligation re- alleged can be without P.2d at 149. a au- supervising port the ineffectiveness representa- unsubstantiated assertions Only thority. when ineffective any degree not know overlap that counsel “will with professional tion and misconduct may certainty legal or issues necessary. what factual requirement such a fully developed until have missed or not been [with to meet opportunity

there is sufficient conditions” Paxton]

Mr. under constitutional our persuade us to deviate from

does not holdings.

prior PICKENS, Appellant, Lynn Darrin error, proposition his eleventh alleges trial court erred evidentiary hearing on his failing to hold Oklahoma, Appellee. STATE request post-conviction relief. The issues post- in Petitioner’s No. PC-94-1310. raised require taking of conviction relief did not Appeals Oklahoma. of Criminal Court trial court. We therefore evidence properly trial denied Petition find the court 23, 1996. Jan. hearing. evidentiary request for an er’s 373-74 Johnson denied, 504 t.

cer 1984, 118L.Ed.2d 582 plaintiffs United States granted plaintiff in this class action 5. Petitioner was at- rights alleging that This suit unconstitutional Western District. civil Court for the District visiting torney-client conditions on Oklahoma’s part and reversed affirmed in decision was precluded facility access row inmates death Appeals in part by the Circuit Court Tenth constitutionally ef- mandated and to courts Cir.1995). (10th Reynolds, 46 F.3d 1055 Mann was relief assistance counsel. Limited fective