David Wayne WOODRUFF, Appellant, v. STATE of Oklahoma, Appellee.
No. PC-95-175.
Court of Criminal Appeals of Oklahoma.
Jan. 12, 1996.
W.A. Drew Edmondson, Attorney General, A. Diane Blalock, Assistant Attorney General, Oklahoma City, for Respondent.
OPINION AFFIRMING DENIAL OF POST-CONVICTION RELIEF
LUMPKIN, Judge:
Petitioner David Wayne Woodruff has appealed to this Court from an order of the District Court of Oklahoma County denying his application for post-conviction relief in Case No. CRF 87-397. Petitioner‘s first degree murder conviction and death sentence were affirmed by this Court in Woodruff v. State, 846 P.2d 1124 (Okl.Cr.1993). A petition for rehearing was denied by this Court in March 1993 and a petition for certiorari was subsequently denied by the United States Supreme Court. Woodruff v. Okla-homa, — U.S. —, 114 S.Ct. 349, 126 L.Ed.2d 313 (1993). Petitioner‘s application for post-conviction relief was filed in the District Court of Oklahoma County and subsequently denied by the court on February 16, 1995. It is this denial which the Petitioner appeals.
Petitioner is now asking this Court to review the validity of his conviction and sentence for the third time. This Court‘s consideration of Petitioner‘s claims is strictly limited by the provisions of the Uniform Post-Conviction Procedure Act.
Proposition Nos. I, XVII and XVIII are the only propositions which contain issues which were not raised, and could not have been raised, on direct appeal. Proposition Nos. V, VI, X and XI were raised on direct appeal and are therefore barred by res judicata.2 Proposition Nos. IV, VII, VIII, XII, XIII, XIV, XV, XVI, are issues which could have been raised on direct appeal but were not and are therefore waived.3 Proposition Nos. II and III raise the issue of ineffective assistance of counsel and will be addressed separately.
In Proposition I, Petitioner claims newly discovered evidence regarding the temperature in the victim‘s apartment after the murder warranted an evidentiary hearing by the trial court, and presumably post-conviction relief. Title
Petitioner argues in his seventeenth proposition of error the trial court erred in failing to grant his request for post-conviction discovery. Petitioner has cited no authority authorizing full discovery of the prosecution‘s file during post-conviction proceedings. Petitioner has failed to show the State is in possession of any previously undisclosed exculpatory evidence. There is nothing in the record to indicate that all discovery made prior to trial and contemporaneous with trial was not sufficient. See Smith v. State, 878 P.2d 375, 379 (Okl.Cr.), cert. denied — U.S. —, 115 S.Ct. 673, 130 L.Ed.2d 606 (1994). Accordingly, we find no error in the trial court‘s failure to grant Petitioner‘s discovery request.
In his eighteenth proposition of error, Petitioner alleges the trial court erred in failing to hold an evidentiary hearing on his request for post-conviction relief. The issues raised in Petitioner‘s application for post-conviction relief did not require the taking of evidence by the trial court. We therefore find the trial court properly denied Petitioner‘s request for an evidentiary hearing. Johnson v. State, 823 P.2d 370, 373 (Okl.Cr.1991), cert. denied, 504 U.S. 926, 112 S.Ct. 1984, 118 L.Ed.2d 582 (1992).
Proposition Nos. II and III raise the issue of ineffective assistance of counsel. In Proposition No. II Petitioner asserts trial counsel was ineffective for not presenting evidence of his life prior to the time he was adopted (the first two years of Petitioner‘s life) as second stage mitigating evidence. In Proposition No. III Petitioner argues the ineffectiveness of trial counsel discussed in Proposition II violated Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). He also sets forth a litany of errors and shortcomings by trial counsel. Finally, in Proposition III Petitioner argues appellate counsel was ineffective for failing to raise a claim of ineffective assistance of counsel on direct appeal as well as failing to raise any of the issues deemed waived herein. Petitioner argues that should this Court find any claim in his post-conviction application waived by appellate counsel‘s failure to raise the issue on the direct appeal then this Court should find Petitioner was deprived of effective assistance of appellate counsel.
This Court has treated claims of ineffective trial counsel the same as any other issue raised on post-conviction. It is to be raised on direct appeal, not through a collateral attack, or it is waived. Berget v. State, 907 P.2d 1078 (Okl.Cr.1995); Strong v. State, 902 P.2d 1101 (Okl.Cr.1995). Only if the claim is supported by evidence outside of, and therefore not contained within, the record, can the claim be properly raised collaterally. Berget, 907 P.2d at 1083-84. If the claim can be substantiated by a review of the appellate record, it must be raised on direct appeal or it is waived. Id.
Petitioner‘s second and third propositions of error as they relate to trial counsel are claims based on the appellate record. Trial counsel‘s performance can be reviewed based upon the record submitted for appeal. Therefore, the failure to raise the issue on
As for reviewing the performance of appellate counsel, in analyzing this type of claim, this Court is guided by the Supreme Court‘s decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See also Cartwright v. State, 708 P.2d 592, 594 (Okl.Cr.1985), cert. denied 474 U.S. 1073, 106 S.Ct. 837, 88 L.Ed.2d 808 (1986). The basic test for ineffectiveness of counsel is “whether counsel‘s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. at 2064, 80 L.Ed.2d at 692-93. The appellant bears the burden of showing both that counsel‘s performance was deficient and that such deficient performance prejudiced the defense. Id., at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. When a claim of ineffectiveness of counsel can be disposed of on the ground of lack of prejudice, that course should be followed. Id. at 696, 104 S.Ct. at 2070, 80 L.Ed.2d at 699. To meet both the deficient performance and prejudice prongs, Petitioner must establish that his appellate counsel failed to raise issues warranting reversal, modification of sentence or remand for resentencing. Hooks v. State, 902 P.2d 1120 (Okl.Cr.1995).
We have examined each claim of ineffectiveness alleged, individually and in the aggregate, and conclude that none warrant relief. Petitioner was represented in the direct appeal by the Appellate Public Defender‘s Office, predecessor to the Oklahoma Indigent Defense System. Appellate counsel presented this Court with a thorough well researched brief raising relevant, well-reasoned issues. The fact the original appellate counsel did not raise every issue now raised by post-conviction counsel, the Oklahoma Indigent Defender, is not evidence of ineffectiveness. It is the role of appellate counsel to carefully select and develop the legal issues to be presented to the court and not raise every non-frivolous issue conceivable.6 Finding none of the allegations raised warrant reversal, modification, or resentencing, we find no evidence of ineffective assistance of appellate counsel.
Having carefully examined Petitioner‘s application and the District Court‘s findings of fact and conclusions of law, we find that Petitioner is not entitled to relief and the order of the District Court should be, and is hereby AFFIRMED.
JOHNSON, P.J., CHAPEL, V.P.J., and LANE and STRUBHAR, JJ., concur.
CHAPEL, Vice Presiding Judge, concurring:
I concur in the Court‘s decision in this case. However, for reasons set out in my concurring opinion in Paxton v. State, — P.2d — (Okl.Cr.1996), I do not support the reasoning and assertions set forth in footnote 6 of this opinion.