Webb v. StateWebb v. State
- Reporters:
- , , ,
- Before:
- Lane
ORDER AFFIRMING DENIAL OF POST-CONVICTION RELIEF
Petitioner has appealed to this Court from an order of the District Court of Pottawatomie County, denying his second application for post-conviction relief in Case
Petitioner, represented by Irwin Owen and H. Jeffrey Diamond of Miller, Peters and Diamond, timely appealed his conviction. On appeal, Petitioner raised three propositions of error: (1) that he was sentenced pursuant to
Petitioner, represented by Bob G. Carpenter, Attorney, filed an application for post-conviction relief in the District Court on December 15, 1988, raising one proposition of error. Petitioner alleged prosecuto-rial misconduct denied him the right to a fair and impartial trial because the prosecuting attorney dismissed one prior felony conviction at the beginning of stage two resulting in severe prejudice to Petitioner. The District Court denied Petitioner post-conviction relief January 23, 1989, finding this proposition of error could have been raised on appeal and that the dismissal of the prior felony conviction at trial could have been to the Petitioner’s benefit and, therefore, was not sufficient to warrant relief. Petitioner, pro se, timely appealed the denial of his application for post-conviction relief. In an order entered March 2, 1989, this Court affirmed the District Court’s order denying Petitioner’s first application for post-conviction relief.
Petitioner, represented by Clifford E. Briery, II, has now appealed the denial of Petitioner’s second application for post-conviction relief. Petitioner raises three propositions of error: (1) the State failed to prove Petitioner committed the crime of rape as defined by law; (2) Petitioner was denied effective assistance of counsel on appeal and on his first application for post-conviction relief because neither attorney addressed Petitioner’s first proposition of error; and (3) Petitioner’s sentence should not have been enhanced because the State failed to prove he was a prior felon.
The District Court denied Petitioner’s second application finding no issues raised in the second application which should not have been known at the time of the first attempt to obtain post-conviction relief or at the time of the appeal; and, in accordance with
Johnson v. State,
823 P.2d 370 (Okl.Cr.1991), and
This Court affirmed Petitioner’s conviction in his direct appeal; therefore all issues previously ruled upon by this Court are res judicata, and all issues not raised in the direct appeal, which could have been raised, are waived. Moreover,
We find Petitioner‘s first and third propositions are barred and will not be considered. We also find that Petitioner’s second proposition, ineffective assistance of counsel on appeal and in his first post-conviction application, fails to set forth sufficient reason for relief.
Counsel is not required to advance every argument, regardless of merit..
Cartwright v. State,
708 P.2d 592 (Okl.Cr. 1985). The mere fact that counsel fails to recognize the factual or legal basis for a claim, or fails to raise the claim despite recognizing it, is not sufficient to preclude enforcement of a procedural default.
Murray v. Carrier,
477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).
See Wainwright v. Sykes,
433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Petitioner was represented by counsel at trial and on appeal.
The Post-Conviction Procedure Act sets forth exceptions to the bypass rule. However, Petitioner has not asserted any grounds that come within these exceptions. When the issue of ineffectiveness of counsel could have been raised in a prior proceeding, this Court will rely on res judicata and decline to address the claim on its merits.
We find this issue substantially the same as that raised in State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169 (1982), and agree with that Court that the application of the doctrine of res judicata and procedural bars must be exercised by appellate courts to assure finality of judgment. See also Strickland v. Marshall, 632 F.Supp. 590 (S.D.Ohio 1986).
In this particular case the rule established is based upon the fact that Petitioner had separate counsel on his direct appeal and on his first application for post-conviction relief in the District Court. This decision does not purport to provide a rule that would bar a claim of ineffective assistance of counsel when an appellant has not had the opportunity for independent, separate and objective representation of counsel through the appeals process.
Accordingly, the order of the District Court of Pottawatomie County denying Petitioner’s second application for post-conviction relief is AFFIRMED.
IT IS SO ORDERED.
/s/James F. Lane JAMES F. LANE, Presiding Judge /s/Gary L. Lumpkin GARY L. LUMPKIN, Vice Presiding Judge /s/Tom Brett TOM BRETT, Judge /s/Ed Parks ED PARKS, Judge /s/Charles A. Johnson CHARLES A. JOHNSON, Judge