# Davis v. State

> Court of Criminal Appeals of Oklahoma · October 27, 2005 · 123 P.3d 243

URL: https://www.frixlaw.com/law-library/cases/9797109

## Case

- **Full name:** Brian Darrell DAVIS, Appellant v. STATE of Oklahoma, Appellee
- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** October 27, 2005
- **Citations:** 123 P.3d 243; 2005 OK CR 21; 2005 Okla. Crim. App. LEXIS 17; 2005 WL 2807121
- **Precedential status:** Published
- **Opinion:** Concurring in part by Lumpkin
- **Judges:** Chapel, Lewis, Johnson, Lumpkin
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9797109

## How later opinions describe it (automated extraction)

- holding “that the importance of the Sixth Amendment compels us to consider all claims of ineffective assistance of trial counsel raised in a timely application for post-conviction relief’
- holding capital petitioner's competency claim procedurally barred because he failed to raise the issue on direct appeal

## Opinion text

LUMPKIN, P.J.:
concur in part, dissent in part.
¶ 1 Unfortunately, the Oklahoma Legislature provided little or no insight into the reason(s) why it suddenly amended the Capital Post-Conviction Act in 2004 to state that “[a]ll claims of ineffective assistance of counsel shall be governed by clearly established law as determined by the United States Supreme Court.” While I agree the focus of the Opinion is correct when it states this language “implicitly overruled” the approach adopted by this Court in Walker v. State, 1997 OK CR 3 , 933 P.2d 327 , concerning the method of analyzing ineffective assistance of counsel claims, I believe the Opinion paints with too broad a brush in applying the limited purpose of the language.
¶ 2 It seems to me that the Legislature’s only intent was to do away with the Walker method of reviewing post-conviction ineffective assistance claims. Therefore, I am inclined to agree with the Opinion to the extent it holds, in regards to post-conviction claims of ineffective assistance of trial counsel, that this Court should apply the procedure required by Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). But I believe it goes too far when it states we will “no longer apply a procedural bar when appellate counsel and trial counsel were the same.”
¶ 3 The Opinion reads too broadly on this point. That is, the Opinion suggests, whether intentionally or not, that this Court can no longer set its own rules and procedures for reviewing post-conviction ineffective assistance of counsel claims arising from the direct appeal, but must simply defer to the United States Supreme Court. Insofar as the Opinion takes that position or interprets the statute in that manner, I dissent. See Behrens v. Patterson, 1997 OK CR 76 , ¶ 3, 952 P.2d 990, 991 (finding the Supreme Court’s application or interpretation of a federal rule of appellate procedure “is not controlling as to the construction, application, or interpretation of any Oklahoma rule of appellate procedure”).
¶ 4 I do not believe either the language of the statutory amendment or the intent of the Legislature was to make sweeping changes in the way this Court does business to the extent the opinion advises. Indeed, the Supreme Court has recognized a State’s authority to establish and apply procedural waiver *250 rules on this very issue. See Stewart v. Smith, 536 U.S. 856 , 122 S.Ct. 2578 , 153 L.Ed.2d 762 (2002) (disallowing federal habe-as review of a state procedural rule that is independent of federal law). Thus, it appears to me the statutory amendment is nothing more than a confirmation of the analysis in my Walker dissent, which focused on the fact that Strickland should be our guide for reviewing ineffective assistance of counsel claims, not the newly formulated Walker process.
¶ 5 I find it reasonable and appropriate to restrict this new statutory language to exactly that. Our other rules regarding how and when we will accept and rule on ineffective assistance of counsel claims do not need to be “federalized.” Oklahoma can and should retain our tried and proven procedures of review, while applying Strickland , just as we did prior to Walker . But I cannot join in a wholesale relinquishment of the authority held by the State of Oklahoma and this Court to set our own rules and procedure. It is the responsibility of the judges of this Court to preserve the rights of the State of Oklahoma to establish and administer its rules of procedure, not relinquish those rights.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9797109. Public record. Not legal advice.