adjudicating merits of successor petition based on withheld evidence
How later courts described this case
- adjudicating merits of successor petition based on withheld evidence
Written by the judges who cited it.
The opinion
LUMPKIN, Judge,
concur in results.
I concur in the decision to deny post-conviction relief in this case. However, I write separately to address the following.
Initially, this application should be reviewed under the pre-1995 amendments to *229 the post-conviction statute. Further, this is a third post-conviction application, therefore we apply 22 O.S.1991, § 1086. Under Section 1086, the principles of res judicata and waiver apply respectively to issues adjudicated in prior post-conviction applications and those issues which could have been raised but were not. See Hale v. State, 934 P.2d 1100, 1101-02 (Okl.Cr.1997); Newsted v. State, 908 P.2d 1388, 1391 (OM.Cr.1995); Fowler v. State, 896 P.2d 566, 568-569 (Okl.Cr.1995); Fox v. State, 880 P.2d 383, 384 (Okl.Cr.1994); Smith v. State, 878 P.2d 375, 377 (Okl.Cr.1994); Mann v. State, 856 P.2d 992, 995 (Okl.Cr.1993); and Johnson v. State, 823 P.2d 370, 372 (Okl.Cr.1991).
The proposition raised in the present case could have been raised and addressed in both the direct appeal and the prior post-conviction application. In fact, as the opinion relates it is revealed in the transcript of the trial. Therefore, the issue has been waived. We should not address it on the merits and give any semblance of credibility to the viability of the issue. Petitioner has exhausted all his state remedies and this Court should set an execution date.