“The post-conviction process is not a second appeal.”
How later courts described this case
- “The post-conviction process is not a second appeal.”
Written by the judges who cited it.
The opinion
LUMPKIN, Judge:
CONCUR IN RESULTS.
¶1 I concur in the results reached in this case but write separately to address several issues.
{ 2 Petitioner violates Rule 8.5(A)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2011) by setting out sub-propositions. Petitioner's failure to separately set out each proposition waives review of these claims. See Cuesta-Rodriguez v. State, 2011 OK CR 4, ¶ 12 , 247 P.3d 1192, 1197 .
T3 The opinion does not correctly apply res judicato and waiver to Petitioner's allegations concerning his first trial. "[Cllaims that could have been raised in previous appeals but were not are generally waived; claims raised on direct appeal are res judica-ta." Murphy v. State, 2005 OK CR 25, ¶ 3 , 124 P.3d 1198, 1199 .
14 Finally, the opinion fails to distinguish the cireumstances in Melendez-Diaz v. Massachusetts, — U.S. —, 129 S.Ct. 2527 , 174 L.Ed.2d 314 (2009), from the instance where an expert testifies to his or her own opinion based on the testing of other professionals if reasonably relied upon by experts in the field. Cuesta-Rodriguez v. State, 2010 OK CR 23, ¶¶ 4-10 , 241 P.3d 214, 248-49 (Lumpkin, J., concurring in result). It is expected that the United States Supreme Court would make this distinction. See Bullcoming v. New Mexico, — U.S. —, 131 S.Ct. 2705, 2722 , 180 L.Ed.2d 610 (2011), 131 S.Ct. at 2722 (5-4 decision) (Sotomayer, J., concurring in part) ("Third, this is not a case in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence."). In the present case, the admission of Dr. Choi's own opinions was not error. Id. The admission of Dr. Parker's sketches of the injuries and photograph were harmless beyond a reasonable doubt and thus Petitioner has failed to show that the outcome of the proceeding would have been different absent counsel's omission.