# Walker v. State

> Court of Criminal Appeals of Oklahoma · January 23, 1997 · 68 O.B.A.J. 316

URL: https://www.frixlaw.com/law-library/cases/9608199

## Case

- **Full name:** Jack Dale WALKER, Petitioner, v. the STATE of Oklahoma, Respondent
- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** January 23, 1997
- **Citations:** 68 O.B.A.J. 316; 933 P.2d 327; 1997 OK CR 3; 1997 Okla. Crim. App. LEXIS 2; 1997 WL 34440
- **Precedential status:** Published
- **Opinion:** Dissent by Lane
- **Judges:** Chapel, Strubhar, Johnson, Lumpkin, Lane
- **Cited by:** 99 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled by statute, as recognized in Davis v. State.
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9608199

## How later opinions describe it (automated extraction)

- holding that “Flores simply reiterated and enforced long standing case law and statutory rules” and that a pre Flores failure to challenge a “presumed not guilty” instruction was waiver
- rejecting ineffectiveness claim for lack of evidence that counsel “purposefully omitted meritorious appeal issues because he wished to avoid angering [the trial] Judge”

## Opinion text

LANE, Judge,
dissenting:
I disagree with the majority in its decision as to two of the issues raised by the petitioner: the issue of improper instruction that was decided in Flores v. State, 896 P.2d 558, 562 (Okl.Cr.1995), cert. denied, — U.S.— , 116 S.Ct. 548 , 133 L.Ed.2d 450 (1996), and the issue of the standard of proof needed in a competency hearing as determined by Cooper v. Oklahoma, — U.S.—, 116 S.Ct. 1373 , 134 L.Ed.2d 498 (1996). Both of these cases were determined in the time frame between Petitioner filing his direct appeal brief and the filing of this post conviction action.
The majority finds that both of these issues were waived because they were not raised on direct appeal. I believe that the majority has incorrectly interpreted 22 O.S.Supp.1995 § 1089(C)(2) which states that a claim comes under the purview of the capital post conviction act if it involves a claim that “was not recognized by or could not have been reasonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state....” The majority does not cite, nor do I find any cases that determined either of these issues prior to the time that Petitioner filed his appellate brief. As to the burden of proof issue, even though it was after Petitioner had filed his brief in chief, we held that the “clear and convincing” standard applied in Cooper v. State, 889 P.2d 293 (Okl.Cr.1995). Therefore, it would be very difficult for us to say that the claim could have been reasonably formulated from one of our prior decisions.
If we were to consider the instruction issue, we would reverse and remand for a new trial. If we were to consider the standard of proof issue, we would remand the case to the trial court for a proper competency resolution.
Recently, at oral arguments in death eases we have complemented appellate counsel for cutting down on the number of propositions that they have raised. There has been a trend for them to eliminate propositions that we have repeatedly decided in prior eases. However, most of them have not yet been determined by the U.S. Supreme Court. Today, we are telling counsel that even though we have decided the issue, they should raise adjudicated issues in all future cases in order to prevent waiver in ease our opinions are overturned in the federal system.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9608199. Public record. Not legal advice.